📰 Indu Malhotra, lone woman judge on Bench, makes a strong case against Section 377
Says healthcare is denied due to stigma
•Justice Indu Malhotra, the lone woman judge on the Constitution Bench of the Supreme Court hearing the fight against Section 377 of the IPC, made a strong case against criminalisation of homosexuality.
•Justice Malhotra, the junior-most member of the Bench of five led by Chief Justice Dipak Misra, said homosexuality is only a variation and not an aberration.
•But the prejudice and stigma piled on the LGBTQ community has denied it even basic medical care in the country.
•The community is so inhibited by societal scorn that it prefers to forego medical care, especially in rural and semi-urban parts of the country, Justice Malhotra said.
•On the third consecutive day of hearing, Justice Malhotra spoke of the pressure on homosexual people from within the home. They succumb to marry the opposite sex, leading to a life of mental trauma and bi-sexuality.
•The judge spoke of how homosexuality is not against the order of nature and is nature itself. Hundreds of animal species show the same sexual orientation.
•Chief Justice Misra said stigma is the root cause of suffering for the community. Justice D.Y. Chandrachud expressed the hope that social stigma vanish if Section 377 is struck down by the court. The judge said Section 377 creates an environment which is conducive for discrimination of individuals on the ground of their sexuality.
•Senior advocate Ashok Desai, for a petitioners, submitted that a culture of acceptance has prevailed over all odds.
•Senior advocate Krishnan Venugopal submitted that Section 377 impinges on the right to liberty, dignity and conscience.
Freedom of expression
•Mr. Venugopal spoke of the extent to which LGBTQ persons are denied their fundamental right to express themselves.
•He said a person from the LGBTQ community is unable to express himself in dress, conduct or speech in public view. They are denied the freedom to express their identity.
•“I am unable to express my core identity, beliefs. This violates my right to conscience... There is the constant pressure of pretending to be someone else,” Mr. Venugopal said.
📰 Section 377 and beyond
The Centre’s cautious stand keeps the focus only on the need to decriminalise gay sex
•There is finally good reason to believe that consensual gay sex may once again be decriminalised. The ongoing hearing before a five-judge Constitution Bench of the Supreme Court indicates that there is now a better appreciation of the need for equal constitutional protection to all individuals without any discrimination than was the case in 2013, when a two-member Bench declined to read down Section 377 of the Indian Penal Code as homosexuals constituted only a “minuscule minority”. The Centre’s stand was believed to be critical when the current hearing began this month. The Union government is cautiously supporting the cause, but it has stopped short of taking a categorical position. By leaving it to the Supreme Court’s wisdom to decide on the constitutionality of Section 377, the Centre has signalled it is not opposed to the decriminalisation of same-sex relationships as long as these are limited to consensual acts between adults in private. At the same time, its position is hedged against the possibility that the Constitution Bench, currently reconsidering the court’s 2013 judgment upholding the validity of Section 377, may venture into other rights for the LGBTQs relating to marriage and inheritance. In the event of the court going into issues and rights that are not slated for reconsideration, it wants to file a detailed counter-affidavit spelling out its stand.
•Observations by the judges of the Bench, including the Chief Justice of India, indicate that it is now focussing only on Section 377. However, at least one judge has observed that the question involved was not only one relating to sex, but the right to life and the right to privacy of those in such relationships. The current hearing is taking place against the backdrop of a nine-member Bench’s verdict last year in Justice K.S. Puttaswamy v. Union of India, which said “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”. In other words, a whole gamut of rights flowing from the decriminalisation of homosexual relationships must be examined, if not now, then at least as and when they arise. Obviously worried about the reaction of some religious and conservative sections if homosexuality is decriminalised, the Centre has sought to dissuade the court from going into other related rights. Its apprehension, perhaps, is that once homosexuality is no more an offence, it may lead to demands to legalise same-sex marriages and inheritance by survivorship among gay partners. While the current focus is on the urgent need to overturn the retrograde judgment of 2013 in Suresh Kumar Koushal, the extension of constitutional rights to citizens, irrespective of gender and sexual orientation, is long overdue.
📰 Moon shine
India-South Korea ties have drifted too long — political ownership of them will help
•That South Korean President Moon Jae-in undertook a four-day visit to India this week, when there is hectic diplomacy over the Korean peninsula, speaks of his commitment to improving bilateral ties. In fact, during his election campaign last year he had promised to raise bilateral ties to the level of South Korea’s relations with what it calls the four major powers: the U.S., Russia, China and Japan. Prime Minister Narendra Modi too has often said he sees South Korea as a significant partner for India, and had travelled to Seoul. But despite the personal touch, and ambitions to align India’s Act East policy with Korea’s New Southern Policy, ties have drifted for lack of focus. Trade, at $20 billion, is a fraction of the potential, given that India and South Korea are Asia’s third and fourth largest economies. This figure has been a cause for worry, as the two countries had hit the $20-billion mark in 2011 after the signing of the Comprehensive Economic Partnership Agreement. The large trade deficit in South Korea’s favour has led India to be wary of further opening up. In turn, Korean companies cite problems in doing business in India, despite a special “Korea Plus” desk set up by the Prime Minister’s Office in 2015. Tourism between the two countries has always been low, and strategically both New Delhi and Seoul are preoccupied with tensions in their immediate neighbourhoods and ties with the big world powers than with each other.
•On Mr. Moon’s watch, this may change. Both Mr. Modi and he exuded a sense of purpose and there is a clear road map on converging interests. Agreement to invoke the “early harvest” clause in the 2010 CEPA will allow both to do away with tariffs in 11 areas, benefiting Indian seafood exporters and food processing units, as well as South Korean petrochemical companies. The inauguration of Samsung’s biggest mobile factory in Noida will bring investment and create jobs in India. More Korean companies should be persuaded to invest, by projecting a counter-narrative to the failed bid by the steel company Posco to set up its plant in Odisha. Much will depend on negotiations on the regional free trade agreement, the Regional Comprehensive Economic Partnership. On the strategic front, India has asserted its place as a “stakeholder” in the Korean peace process, while South Korea has for the first time shown an interest in talking about an Indo-Pacific policy. In the short term, a symbolic token towards shared interests will be seen in a joint “capacity-building” programme in Afghanistan. At a time when U.S. foreign policy is capricious and unpredictable, and China’s is making purposeful moves towards global domination, it is important that the South Korea-India partnership grows and consolidates, to contribute to stability in the region.
📰 Relief for guests from Bangladesh
India to sign MoU on easing visa curbs
•India will sign a pact with Bangladesh to ease visa restrictions for citizens from the neighbouring country. The Memorandum of Understanding (MoU) on “revised travel arrangements” will be signed during Home Minister Rajnath Singh’s three-day visit to Dhaka beginning Friday.
•Bangladesh has demanded that travel restrictions for senior citizens be eased and further concessions be given to Muktijoddhas — those who participated in the 1971 Liberation War.
Facility for war veterans
•Last year, India announced five-year multiple entry visa to the 1971 war veterans from Bangladesh. They could walk into the Indian High Commission in Dhaka and eight other consulates in Barisal, Rajshahi, Chittagong, Khulna, Rangpur, Sylhet Mymensingh and Jessore without prior appointment and submit their visa applications.
•Citizens from over 150 countries can travel to India on e-tourist visas procured online. This facility is not extended to Bangladesh.
•“The visa rules for senior citizens would be relaxed further and they could visit India more frequently. Similarly for Muktijoddhas , we will ensure smooth travel. There will be facilitation desks to help them,” said a senior government official.
•In 2014, India decided to relax visa restrictions for Bangladeshis above the age of 65 and below the age of 13. They were allowed five-year multiple entry visas.
•During the visit, Mr. Singh is expected to meet Bangladesh Prime Minister Sheikh Hasina and discuss various bilateral issues.
📰 A list of questionable eminence
The government’s myopic approach to higher education shows in its IoE list, which totally disregards social sciences
•The government’s list of ‘Institutes of Eminence’ (IoEs) was awaited for the simple reason that finding a place in it would help an educational institution avoid the clutches of a dreaded regulator. Regulators are meant to ensure that we have a socially desirable outcome but in the case of higher education in India, the opposite seems to have happened. The University Grants Commission (UGC) has, over more than half a century, micromanaged this space, leading to a large number of publicly funded universities, producing low-level ‘knowledge’, which have shattered the aspirations of our youth.
•Aware of the public anger at the functioning of the UGC, two governments in the past decade have tried to revamp the regulatory environment for higher education. The latest offering is in the form of a proposed Higher Education Commission of India (HECI). The intention is to leave the HECI to focus on quality while leaving funding of public institutions to the Ministry of Human Resource Development (MHRD).
Engagement with ideas
•This arrangement has raised the issue of the possibility of bias, leading to concerns that the government may use its discretion to reward institutions according to its ideological predilections. While this is an ever-present hazard in a democracy, one cannot in principle object to an institutional arrangement whereby an elected government exercises its right to allocate funds. One can only pressure it to be impartial and accountable in its actions. In higher education, one would imagine that this accountability would be manifested in enabling the pursuit of excellence.
•It is not as if excellence is difficult to identify, even if it may be impossible to measure. In the world of ideas, excellence lies in the ability to participate as an equal in the global knowledge commons. The emphasis here must be on engagement; it is not necessary that institutions should produce knowledge in every field or that its members abide by every idea and protocol in the fields chosen. Whether the criterion of equal engagement is met by the majority of our universities is a moot question. This could be a high-priority issue for the proposed HECI.
•However, even as we wonder if the HECI is going to be more than just old wine in a new bottle, we have an inkling of where it could go wrong. The government has chosen a total of six institutions — three public and three private — for the IOE status. The public institutions are: the Indian Institute of Science (IISc), Bengaluru; and the Indian Institutes of Technology (IITs) at Delhi and Mumbai. The private ones are: the Birla Institute of Technology and Science (BITS), Pilani; the Jio Institute; and the Manipal Academy of Higher Education. The list suffers from a serious lack of credibility as the most obvious question that arises is: Where are the universities?
Ignoring the universities
•Universities by definition embody knowledge across a wide range of disciplines. While the early European universities started as academies of the arts, they soon had medicine and astronomy as areas that they pursued with vigour. The emphasis was on depth of knowledge across a broad horizon. Somewhere along the line, we seem to have lost this breadth and come to revel in a landscape dominated by engineering schools. These engineering schools, notably the IITs, have done us proud but cannot be equated with the great universities of the world for the simple reason that they are focussed on a narrow domain.
•Also, if the idea behind preparing a list of the IoEs is giving them greater autonomy and enhanced financial support, it must be acknowledged that until very recently, the IITs were not meddled with; neither were they starved of resources. The IISc’s scope is of course broader than that of the IITs but it does not embrace the social sciences and the humanities, the presence of which would be considered necessary for an institution to be considered a university.
•Assuming that an IoE list is needed, the absence of Jawaharlal Nehru University (JNU) from the present list striking. If, as I mentioned earlier, the possibility offered by a university for engagement with global ideas is accepted as a criterion, the JNU would count as among India’s eminent educational institutions. One need not agree with any of the political ideas emanating from the university to recognise that if there is one Indian institution that engages a student as an equal in the global commons, it is the JNU. Its research work in various disciplines, ranging from history to economics, is top-quality. Its faculty have brought many of the world’s leading ideas to Indian students and also come close to building a new school of thought. It is not as if similar efforts have not occurred elsewhere in India but JNU has perhaps sustained its reputation as a university for longer.
•It would require a scientist assess the contribution made by the JNU to the sciences but it may be noted that it has had schools of Computer Science and the Life Sciences for many decades, right from the time when they were just nascent disciplines in the country.
•The choice of the three private institutions that made the cut is as surprising as the exclusion of JNU. While BITS Pilani made significant contribution to the country at a time when it desperately needed engineers, it still doesn’t have the breadth of disciplines to be considered a university.
Dubious premise
•However, the presence of the two other institutions on the list leaves one nonplussed. One of them, we are told, has been conferred the status solely on grounds of its promise, a dubious position to take as it has little to show but for the financial heft that will surely undergird it. The other is known largely for its practice of charging capitation fees. Eminence is not usually understood in terms of money.
•So where does this leave us? Even before the HECI is a reality, we can get an overview of what to expect when such a limited approach to education guides the hand of the state. While there may be no political partisanship involved in the matter of finding eminence only in engineering schools, the choices do reflect short-sightedness when the social sciences and the humanities are completely ignored.
•It is indeed conceivable that the politicians who govern us have little time to bother with the constitution of committees. But then, we do maintain a machinery of government, at considerable expense, to advise the Cabinet. In this episode of drawing up a list of IoEs, we are able to see what will determine whether the HECI can make a difference. Its membership will matter more than the institutional architecture governing higher education in India.
📰 Towards a culture of moral responsibility
Mob action is the most violent expression of fears about the safety of our children; it shows a lack of trust in the state
•Twenty people have been killed by raging mobs, on the suspicion of being child-lifters, across the country in the last few weeks. The trigger for the fears in these violent incidents was undoubtedly WhatsApp rumours that were unfounded. I am appalled by these brutal killings.
•The violence apart, there are also many people who suspect that their children could be abducted for prostitution, organ trade, forced beggary or any other form of slavery.
•Eight children go missing every hour in India to remain untraced and four are sexually abuse. Aren’t these figures enough to cause fear among the masses?
•Can we say with confidence that our children are safe in homes, schools, neighbourhoods, workplaces, shelter homes, or even inside the places of worship and faith institutions? Can we guarantee that our children will not be abused by a family member or friend? Can we totally trust our state institutions to bring the perpetrators to justice? Fears triggered by such insecurities quickly take the form of collective frustration. Mob action, condemnable no doubt, is the most violent expression of such frustration.
Rising anger
•Last year, I led an 11,000-km Bharat Yatra to take the message of ‘safe childhood’ across the country. A total of 12 lakh people, including child victims of rape, their parents, survivors of child trafficking and prostitution, former child labourers, and young people, marched with me to demand their right to childhood. Though their rising anger was discernible, I repeatedly appealed to them not to take the law into their hands and to follow the legal, judicial system for justice. But it is necessary to point to the apathy among our institutions toward child safety.
•Reports on incidents like the sale of a baby by the Missionaries of Charity home; the rape of minor girls by a self-styled godman in Delhi; and the rape of a nine-year-old girl by a Maulana in a madrassa raise a basic question: Why are many of these residential religious institutions allowed to run without stringent regulations and checks?
•The government has information on 1.4 lakh missing children on one hand and on the other, has a database of three lakh children staying in state and NGO-run children’s homes. Why can’t it effectively use simple technological solutions like facial recognition software and try to reunite missing children with their families? Further, what stops the largest democracy in the world from passing more stringent laws against child trafficking and child pornography?
•Normally, public outrage in the case of many unfortunate incidents like those in Kathua, Unnao and Mandsaur has been selective and convenient. Nobody has questioned why an eight-year-old was grazing horses and not attending school as per constitutional right to education. Or how a school in Mandsaur could have been so unsafe for a little girl. Or why a political party not just tolerates but protects alleged rapists for so long.
•Demanding capital punishment for the perpetrators of child rape is the easiest way to show social media heroism. The government’s response, which includes setting up an enquiry or bringing an ordinance, is equally convenient. However, I have never come across an incident where an individual or institution ever took moral responsibility for such a pathetic situation on child safety. Therefore, I argue for a culture of moral responsibility and accountability among our institutions, as opposed to the prevalent culture of superficial, convenient responses.
•Moral responsibility is an individual decision and moral accountability is a culture. Mahatma Gandhi called off the Non-Cooperation Movement against the British because some of his supporters turned violent in Chauri Chaura. Martin Luther King Jr. repeatedly called for compassion and hope despite facing vicious racist insults. More recently, Nelson Mandela adopted the approach of reconciliation to bring about justice, despite being a brutalised victim of apartheid. A culture of accountability can be created if the society and the state are guided by a moral compass.
📰 Is planting saplings a solution to the felling of trees?
Not creating essential urban infrastructure will only lead to a deteriorating quality of life
•City clusters are economic growth engines. In India, the world’s fastest growing economy, the urban population (nearly 32%) contributes over 60% to the GDP and is projected to contribute around 75% in the next few years. Globally too, megacities (a megacity contains more than 10 million inhabitants) have played a significant role in the economic growth of nations. More than 12% of global city dwellers lived in the 28 megacities in 2014, of which Tokyo, Delhi and Shanghai were among the biggest. Delhi is projected to become the most populous city in the world by 2028, according to the United Nations.
Invest in urban infrastructure
•With the inevitability of migration to urban areas, the share of agriculture and allied services in GDP has shrunk to around 15% even as the sector continues to engage around 70% of our working age population. This has led to subsistence living and distress in rural India. Thus, rural India cannot provide sustainable livelihood to the youth. On the contrary, the GDP contribution of megacities and metropolitan regions is disproportionately high. With large-scale migration to the cities, we must focus on making our cities economically viable and environmentally sustainable so that they remain economic growth engines that provide employment. Investing in our urban infrastructure will lead to enhanced economic activity and result in large-scale employment generation and an improved quality of life. This is a much-desired socioeconomic outcome in a young nation where the majority of urban migrants are youth who are either unemployed or underemployed.
•But is it possible to create large-scale urban infrastructure to support the burgeoning urban population and provide high economic growth while ensuring environmental sustainability?
•This question has always bothered urban planners and administrators. And more often than not, environment has been the casualty. The high economic growth and prosperity of China came at a huge environmental cost, which the country is trying to address now. In Indian cities, there is lack of basic infrastructure and a deteriorating quality of life. This is reflected in the fact that nine of the 10 most polluted cities in the world are in Indi. Delhi is among them.
Least harm to the environment
•It is not an easy task but we have to work hard to ensure that our urban infrastructure causes least harm to the environment and has a net positive impact on our quality of life. Whether it is metros or elevated corridors, a net environment impact assessment must be conducted to justify the felling of trees and harm to water bodies. While the immediate direct environmental impact of cutting trees is obvious, there is a need to inform the stakeholders about the long-term positive impact of these urban infrastructure projects to justify their necessity. Environmental pollution caused by daily hour-long traffic jams on a 10-km stretch will do more harm to the environment and to people’s health than felling 1,000 trees to build a metro line or an elevated corridor. This data needs to be compiled and shared on public forums to educate people.
•Care must be taken to avoid any harm to the environment. This can be done by going either underground or elevated. Large-scale compensatory afforestation should be provided in the immediate vicinity, to the extent possible. But not creating essential urban infrastructure will only lead to a deteriorating quality of life. The line between development and environment is a fine one. We must tread it carefully.
📰 Monitoring financial firms
On the Financial Resolution and Deposit Insurance Bill
•The Financial Resolution and Deposit Insurance Bill, 2017 proposes a comprehensive resolution framework for specified financial sector entities and service providers to deal with bankruptcy in banks, insurance companies and financial sector entities.
•The Bill seeks to give comfort to the consumers of financial service providers in financial distress. Its objectives include the maintenance of financial stability during a crisis.
•The second schedule of the Bill lists 11 categories of institutions which would come under the definition of specified service providers. These include any banking institution other than eligible cooperative banks, including an insured service provider; insurance companies; any financial market infrastructure; any payment system, as defined under the Payment and Settlement Systems Act, 2007; any non-banking financial company; branch offices of body corporates incorporated outside India, carrying on the business of providing financial service here; and any other entity/ fund which may be notified by the government.
•The Bill proposes the setting up of a Resolution Corporation by the Central government. It would lead to repeal or amendment of resolution-related provisions in legislation, including the repeal of the Deposit Insurance and Credit Guarantee Corporation Act, 1961. This would mean the transfer of deposit insurance powers and responsibilities to the Resolution Corporation to streamline the deposit insurance framework for the benefit of retail depositors. The government lists the functions of the Resolution Corporation to include protecting the stability and resilience of the financial system, public funds, and consumers of covered obligations up to a “reasonable limit”.
•Section 13 of the Bill details the powers and functions of the Corporation to include providing deposit insurance to banking institutions, specifying the criteria for classification of a specified service provider into one of the categories of risk to viability, acting as an administrator for a specified service provider under critical risk, exercising powers in relation to certain termination rights in respect of specified service providers, resolving a specified service provider under critical risk, and acting as a liquidator for a specified service provider.
•The recently enacted Insolvency and Bankruptcy Code, 2016 to deal with the insolvency resolution issues of non-financial entities will be complemented by the proposed Bill.
