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Is it time to review Section 377?

  • Section 377, titled “unnatural offences”, was enacted by the British after we lost our First War of Independence in 1857. They imposed their religio-cultural values upon us. Prior to that, sexual activities, including amongst homosexuals, were not penalised in India.
  • Section 377 penalises non-procreative sexual acts and any act of sexual perversity, as has been interpreted by different courts. Though it textually applies to all persons, homosexual and heterosexual, it has been targeted at gay men.
  • The Delhi High Court in Naz Foundation v. Government of Nct of Delhi(2009) rightly held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people.
  • Gay men are seen as criminals by the law because of Section 377, and thus by other members of society. This judgment lifted the criminal restrictions on gay men.
  • However, it was short-lived as the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) set aside the Delhi High Court judgment. The Koushal judgment did not notice that the rape law itself had changed whereby instead of mere restriction on penile-vaginal non-consensual sex, it now includes a range of sexual activities, including digital and object penetration.

Discriminatory in nature

  • Section 377 is now restricted only to gay men and perhaps transgender people. The contradictions in the law are glaring. Consent is considered to be irrelevant. In the case of children, law presumes no consent. Therefore all sexual acts between an adult and a child are penalised.
  • The latest judgment on privacy by the Supreme Court has observed that Koushal has not appreciated the fundamental right to privacy in its application to Section 377. The Koushal verdict is dead; only its burial remains.
  • After the Koushal verdict, there have been a large number of cases where gay men are being blackmailed by their acquaintances and the police in connivance with each other. These cases have sharply risen in the last three years. Though there is recourse in law, no gay man can take recourse to it because Section 377 itself makes gay men’s sexual practices illegal and would put them in danger of being arrested. I have come across cases where people have undergone terrible humiliation and psychological stress, apart from being blackmailed either by their acquaintances or the police. No human being ought to be subject to such acts on account of a natural sexual affection for another human being.

Not in great company

  • The worst aspect of Section 377 is at the individual level. It makes gay men feel like lesser human beings because they are seen as criminals by law. That impairs not only their dignity, but forces them to go into the closet.
  • The British, who enacted the law, got rid of it in the 1960s in England. Many countries have got rid of such laws, either by amendment of legislation or vide decisions of the court. India now remains with countries who India would not like to be associated with otherwise.
  • While most people gained independence from the British, the LGBT community, and gay men in particular, in India have remained chained to Section 377. It is high time that the chains are broken and we get rid of Section 377 so that gay men and the LGBT community can live their lives with dignity.

Shifting goal posts

  • Demonetisation was aimed at breaking “the grip of corruption and black money”. This would be effected with the Reserve Bank of India, which bears the liability to honour the value of the country’s currency, paying as dividend to the government the majority, if not all, of its extinguished liabilities. But with the RBI’s annual report, released on August 30, showing that as much as 98.96% of the demonetised currency had returned to the central bank as of June 30, the gains in the form of cancelled liability from the note ban have been piffling.
  • For the Finance Minister to now claim that the “confiscation of money” had not been an objective, and for his Ministry to say that the government “had expected all the SBNs [specified bank notes] to come back to the banking system to become effectively usable currency,” is disingenuous. If that were indeed the case, the rationale behind the various stop-go announcements that followed in the wake of the November 8 decision are hard to fathom. For instance, the RBI circular setting a Rs. 5,000 limit on deposits of withdrawn notes unless done under the government’s amnesty scheme, tendered for the first time or explained otherwise was clearly a measure intended to dissuade bank customers from returning the demonetised currency.
  • True, demonetisation has had some beneficial spin-offs such as arguably fostering greater compliance with the tax laws and reducing the economy’s reliance on cash through increased adoption of digital payments. But such gains could have been achieved by other and less self-defeating ways. As things stand, it is unclear how many of those who have laundered their black money will be punished. Despite the large amounts that were deposited in banks post-demonetisation, it is doubtful whether the Income Tax authorities have the necessary resources to track down and penalise the corrupt. All in all, the costs of demonetisation, which has resulted in robbing the country of its economic momentum, are far greater than the benefits it has bestowed.

After demonetisation

  • Has demonetisation achieved its original objectives? On November 8, 2016, these were tackling corruption, counterfeit currency, and terror funding. Thereafter the Prime Minister added reducing dependence on cash.
  • Now that we know that 99% of demonetised money has come back, the government’s estimates of how much black money would be extinguished have been proven horribly wrong. The Attorney General told the Supreme Court that he expected Rs. 4-5 lakh crore to be “neutralised”. In the end, just Rs. 16,000 crore didn’t come back.
  • This means previously unbanked money has now been credited to bank accounts. As they yield returns, it will be taxed and that’s a clear gain. If large proportions are proven to be black, revenues will increase substantially.
  • However, the objective of reducing counterfeit currency seems unachieved. In 2015, the National Investigation Agency established that at any point only Rs. 400 crore of counterfeit currency is in circulation. That’s 0.028% of total currency. Now, CNBC has calculated only 0.0007% of the returned Rs. 1,000 notes as being fake and only 0.002% of the Rs. 500 notes. In value terms the total is just Rs. 41 crore. So either a lot of fake currency hasn’t been detected or didn’t exist.
  • In terms of tackling terror funding, the Finance Ministry has said: “As a result of demonetisation of specified bank notes, terrorist and Naxalite financing stopped almost entirely.” If true, this is a huge success, but no proof has been provided.
  • Finally, have we reduced dependence on cash? Both in number and value, digital transactions increased sharply after November but also dipped sizeably thereafter. There were 671.49 million transactions in November, rising to 957.50 million in December before shrinking to 862.38 million in July. In value terms, it was Rs. 94 lakh crore in November, Rs. 149 lakh crore in March, and Rs. 107 lakh crore in July. So, the use of cash initially diminished but has been steadily increasing thereafter.
  • This is a mixed picture. There’s enough for the government to claim success, but also grounds for the Opposition to be dismissive. Clearly, the demonetisation controversy continues.

A water umpire

  • The Cauvery water dispute is eluding closure, with Tamil Nadu, Karnataka, and Kerala locked in battle in the Supreme Court over their share of water.
  • In its statement of objects and reasons for proposing a new inter-State river water disputes law, the Centre lists out the drawbacks in the prevalent Inter-State River Water Disputes Act of 1956. The Act provides for tribunals to be constituted for every inter-State river water dispute. The statement, however, notes the reluctance shown by States to accept the decisions of these tribunals.
  • “Though the Cauvery and Ravi Beas Water Disputes Tribunals have been in existence for over 26 and 30 years, respectively, they have not been able to make any successful award till date,” the statement says. There is no time cap for adjudication by these tribunals nor is there any age limit for the chairperson or members of the tribunals. These, among other deficiencies, see disputes drag on for years.
  • With water becoming scarce, the Centre has proposed the Inter-State River Water Disputes (Amendment) Bill, 2017 for early and amicable resolution of disputes.
    • The Bill proposes that the Centre notify an Inter-State River Water Disputes Tribunal with multiple benches.
    • All existing tribunals dealing with inter-State water disputes would stand dissolved on the date of establishment of this tribunal.
    • Chairmen and other members of the existing tribunals who are aged 70, on the date of commencement of the 2017 Amendment Act, shall cease to hold office on the expiry of three months from the date of the law coming into existence.
    • Disputes already settled by an existing tribunal, prior to the date of commencement of the 2017 Amendment Act, shall not be re-opened.
    • According to the Amendment Bill, when a State government approaches the Centre with a dispute, the latter shall set up a Disputes Resolution Committee consisting of expert members from relevant fields to resolve the dispute amicably. If the dispute remains unresolved, the Centre, by notification, will refer the matter to the tribunal.
    • The tribunal shall have a chairperson, vice-chairperson, and not more than six members to be nominated by the Chief Justice of India from judges of the Supreme Court or high courts. The term of office of the chairperson is five years or till he attains the age of 70, whichever is earlier. The tenures of the vice-chairperson and other members of the tribunal shall be co-terminus with the adjudication of the water disputes.


  • The Centre suggests that the total time period for adjudication of a water dispute would be a maximum of four and a half years. The decision of the Bench of the tribunal shall be final and binding.


Understanding the Chinese mind

  • Just when the stand-off between India and China over the Doklam plateau threatened to go the way of the 1986-1987 Sumdorong Chu incident (Arunachal Pradesh), the two sides agreed to step back and disengage, thus avoiding a confrontation. The Indian side has pulled back its personnel and equipment to the Indian side of the boundary, while China has agreed to make ‘necessary adjustments and deployment’ on its part. It is unclear, however, whether China will patrol the region, which it claims to have been doing earlier. Road construction will not continue for the present.Behind the scenes, quiet diplomacy by the two sides, no doubt, led to the defusing of what could have been a serious crisis.
  • India’s actions in Doklam are easy to discern, viz. going to the help of a treaty partner in its time of need, a decision which incidentally has security ramifications for India. China’s reasons are more complex and labyrinthine but, nevertheless, cannot be easily wished away.
  • To begin with, China and India have a kind of competitive coexistence. While professing friendship, both sides nurse a mutual suspicion of each other — at times prompting several degrees of alienation. Both countries remain wary of each other’s intentions and actions.
  • Understanding the way the Chinese mind works is, hence, important. The Chinese mind tends to be relational, i.e. dictated by context and relationship, and its methodology tends to be obtuse. When the Chinese state that they have halted road building in the disputed Doklam area, while adding that they may reconsider the decision after taking into account ‘different factors’, what China means is that it is willing to wait to implement its decision, but at a time of its choosing when an opportunity exists for a settlement suited to its plans. Little finality can, therefore, be attached to any of China’s actions.

Conflict avoidance

  • Any belief, hence, that China has been deterred by India’s firm riposte at Doklam could be misplaced. Since the China-Vietnam conflict in 1980, China has avoided getting into any outright conflict. It has preferred attrition — a protracted campaign to secure a relative advantage — to forceful intervention.
  • By stepping back from a confrontation with India over a minor issue at this time, what it had in mind were two significant events, viz. the BRICS summit in China in September and the forthcoming 19th Congress of the Chinese Communist Party. Also, it possibly believes that this would help China dilute global perceptions about its aggressive designs.
  • China is playing for higher stakes in a globalised world. For instance, on the South China Sea, it has preferred to employ confidence-building measures to deal with the U.S. while awaiting a more opportune moment to assert its claims.In the case of the U.S., China believes that relations between the two are adequately multilayered, providing scope for mitigating areas of mutual benefit
  • China is currently seeking to reshape the regional and international order, and is keen to fine-tune its ‘Great Power diplomacy’. It, hence, needs to be seen as preferring peace over conflict. The Belt and Road Initiative (BRI) is a potent instrument in this direction, but needs a peaceful environment to succeed. Limited wars or conflicts, even with the possibility of successful outcomes, would damage China’s peaceful image globally. Active power projection could at best provide a pyrrhic victory when the goal China has set is much higher.
  • This is again a delicate moment for China on the economic planes. It needs to redress the economic imbalance between its coastal regions and the hinterland States. One stated objective of the BRI is linking these regions with China’s land neighbours. China’s growth rate is actually declining, debt levels are dangerously high, and labour is getting more expensive. At this moment, hence, it is more than ever dependent on international trade and global production chains to sustain higher levels of GDP growth. It can ill-afford to be seen as a disruptor rather than a pillar of the existing economic global order. For the present, development, therefore, is the cardinal objective.
  • The Achilles’ heel of the Chinese economy is the lack of resources, specially oil. Oil from the Gulf region is critical for China’s growth. Peace in Asia is thus vital to ensure uninterrupted supplies of oil. Uncertainties and disruptions across the Asian region would hamper China’s economic progress.
  • Apart from this, China also faces several cross-border security challenges, in addition to unrest in Tibet and Xinjiang. Embarking on military engagement outside the country’s borders could aggravate China’s problems. At a time when China is intent on sustained economic growth at one level, and aspiring to be a Great Power at another level, this could prove to be a dampener.
  • For all the above reasons, China currently leans towards the pragmatic when it comes to relations with countries other than those in its immediate periphery in East Asia. It is not keen to follow a policy adopted by its new-found strategic ally viz. Russia which has paid a high cost for its ‘interventionist’ policies. China tends to take a longer term view of its future and, despite the rising crescendo of nationalism in China today, is anxious not to upset the international political or economic order. For this reason alone, it would shun a conflict with India in the Doklam area.

Not a status quoist power

  • China is not a status quoist power, and aspires to be a Great Power. It is well-positioned to achieve this if it maintains its present course. Any interruption, by indulging in a conflict with nations small or big, would not only damage but derail the levels of progress that are essential to achieve this objective.’.