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TODAY’S TALK ON EDITORIALS CIVILS360

AUGUST 26, 2017

Target Section 377

  • Same-gender sex remains a crime in the country due to a flagrant judicial mistake committed by the Supreme Court in 2013. The time has come to undo it. Ever since the constitutional validity of Section 377 of the Indian Penal Code was upheld in Suresh Kumar Koushal (2013), the correctness of the retrograde verdict has come under doubt twice. The latest criticism from the court is strident and explicit.
  • While declaring that the right to privacy is a fundamental right and an inherent component of human liberty and dignity, the nine-judge Bench has observed that the rationale behind the Koushal judgment is flawed and unsustainable. It has said the rights of LGBT persons are real rights founded on sound constitutional doctrine and not “so-called rights” as the earlier Bench had described them disdainfully. The astounding claim made in Koushal that there was no need to challenge Section 377 because the LGBT community constitutes only a minuscule minority has been completely discredited. It was unreasonable to advance the view that constitutional protection is available to a group based on its size. Yet, in a show of uncharacteristic reticence and contrary to the history of the evolution of constitutional jurisprudence, the earlier Bench had suggested that the provision can be diluted only through the legislative route. This week’s ruling on privacy rights contains a clear enunciation of the constitutional basis for protection of rights based on sexual orientation.
  • Transgenders, even though insignificant in numbers, are entitled to human rights, another Bench had observed in National Legal Services Authority (2014), in a subtle hit at the “minuscule minority” formulation in Koushal .
  • At another point, it said Section 377 had been an instrument of harassment and abuse, something the earlier judgment had refused to accept.
  • Significantly, it advocated the adoption of the Yogyakarta Principles — norms on gender identity and sexual orientation adopted by human rights experts in 2006 in Indonesia. A key principle is that discrimination based on sexual orientation and gender identity must end. By commending this norm, the court has located sexual orientation not only as a freedom flowing from the right to privacy, but as demanding of non-discriminatory treatment.
  • Both these verdicts correctly refrained from ruling on the validity of Section 377, as it was not the primary question before them. However, it is quite apparent that a strong body of constitutional jurisprudence is now available to target Section 377, as and when a five-judge Bench takes up the reconsideration of Koushal .
  • By the latest verdict, sexual orientation is an aspect of the right to privacy and an inalienable part of human dignity, freedom, and personal liberty. Under the 2014 reasoning, it is relatable to both dignity and equality. Read together, they have laid the foundation for restoring the Delhi High Court judgment of 2010 in Naz Foundation , which read down Section 377 to decriminalise consensual sex among adults irrespective of gender.

 

Lessons not learnt

  • The number of influenza A (H1N1) virus cases and deaths reported from across India this year has already crossed 19,000 and 900, respectively. These are lower than the 2015 toll of 32,000 cases and 2,000 deaths, but the revived spread is alarming.
  • Gujarat is the worst-affected, with about 250 deaths recorded so far: Rajasthan, Punjab and Maharashtra and Delhi too have been badly hit. The number of H1N1 cases in the southern States is also high compared with last year, with Tamil Nadu reporting nearly 3,000 cases about a month ago.
  • According to the Pune-based National Institute of Virology, the virus has not undergone any significant mutation and the virulence has remained nearly unchanged. It has however undergone point mutations which resulted in a new strain — the Michigan strain — replacing the California strain that has been prevalent since the 2009 pandemic.
  • The increased caseload and mortality this year compared with last year could be because pre-existing immunity through exposure to the California strain is no longer effective, and people are therefore not immune to the new strain. More research is needed to fully understand the epidemiology of H1N1 caused by the Michigan strain, and who may be more vulnerable.
  • Despite the high numbers, there is no system in place to release data periodically and frequently. Compare this with the regular updates provided by the U.S. Centers for Disease Control and Prevention, especially during an epidemic.
  • There has also been a near-complete failure on the part of governments to spread awareness about prevention strategies. Uptake of influenza vaccination by people, especially by those belonging to the high-risk category, has been extremely poor, with only about 10,000-12,000 doses of H1N1 vaccine sold in the last six months by the Pune-based vaccine manufacturer.
  • Since the 2009 pandemic, H1N1 has become a seasonal flu virus strain in India even when the temperature soars during the summer months.
  • Vaccination of health-care workers and people in high-risk categories is the only way to reduce the toll. That guidelines for H1N1 vaccination of people belonging to high-risk categories such as pregnant women, very young and old people and those with certain underlying illnesses were released only last month by the Health Ministry is evidence that India has not learnt any lessons from the 2015 H1N1 epidemic. Urgent measures are needed to ramp up preparedness in dealing with epidemics.