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Front Page / NATIONAL
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INTERNATIONAL
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Editorial/OPINION
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ECONOMY
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Indian Express
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Live Mint
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Leveraging the sun to power India’s future
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Costs and benefits of the currency swap
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Revamping the Income Tax Appellate Tribunal
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Koushal judgement and three years later
Click here to Download 9 PM Daily Brief PDF (13th Dec. 2016)
Front Page / NATIONAL
[1] Cyclone Vardah brings Chennai to a standstill
Context
The weather system that was first noticed nearly five days ago, grew into a ‘very severe cyclonic storm’ and by the time it crossed the city near the Chennai Port, it had weakened into a ‘severe cyclonic storm’ with maximum wind speeds touching 110 kmph-120 kmph.
Lull as eye crosses the city
This was a large weather system, measuring nearly 40 km in diameter, which explains the time taken for the system to cross.
Rain deficit still persists
While vast devastation was caused to trees and property, the total rainfall received has only partly bridged the city’s rain deficit. Before Vardah struck, the annual rainfall deficit was over 60 cm, and while the storm has narrowed the gap, there is a solid 40 cm of rainfall the city needs for the reservoirs to fill up and meet its water needs until the next monsoon.
Holiday for schools
The government declared Tuesday would be a holiday for educational institutions in three districts.
INTERNATIONAL
[1] India, Indonesia resolve to fight terror
Context
Article deals with the two day presidential visit of Indonesian president to New Delhi
Decisions taken
- Boosting trade and investment: To boost trade and investment in the areas of oil and gas, renewable energy, information technology and pharmaceuticals
- Expansion of defence and maritime ties: To expand their defence and maritime security ties and resolved to deal with terrorism
- South China sea issue: On the issue of South China sea both countries said that the matter should be resolved peacefully
- MoUs signed: Two memoranda of understanding were signed to provide for cooperation in youth affairs and sports and standardization
- Illegal fishing:A joint communiqué on combating illegal and unregulated fishing was also agreed upon
Joint statement
As per the joint statement,
- Condemning terrorism: Two leaders condemned terrorism in all forms, saying there must be “zero tolerance” of acts of terror. It said all states must deal with transnational terrorism emanating from their territory through effective criminal justice response.
- Implementing UNSC resolution: Both nations called upon all countries to implement the United Nations Security Council Resolution 1267 (banning militant groups and their leaders) and other resolutions designating terrorist entities. This is seen as an apparent reference to China blocking India’s move to get Jaish-e-Mohammed chief Masood Azhar designated as a global terrorist
- Eliminating safe havens: In an apparent message to Pakistan, the two leaders also asked all nations to work towards eliminating terrorist safe havens and infrastructure, disrupting terror networks and their financing channels and stopping cross-border terrorism.
- UN Reforms: Both leaders reiterated support for reforms to the U.N. and its principal organs, including the Security Council, with a view to making the the global body more democratic, transparent and efficient.
[2] No change in China’s position on NSG, Masood Azhar’
Context
China has reiterated that there was no shift in its position either on New Delhi’s inclusion in the 48-nation Nuclear Suppliers Group (NSG) or on imposition of U.N. sanctions on the chief of Jaish-e-Mohammad (JeM), Masood Azhar.
Give it a go through once.
Editorial/OPINION
[1] The essence of education
Context
Present article deals with the judgment that has been delivered by Delhi HC on an appeal against the earlier decision on Delhi University copyright case.
Note: The DU copyright case has been dealt in detail in the 9pm Brief dated 19th September 2016
What has happened?
The Delhi High Court has restored for trial the issue whether photocopying study material for course packs is a violation of copyright.
- The court, meanwhile, allowed DU’s Rameshwari Photocopy Service to continue preparing course packs on a condition that it files a record of the same in the suit every six months.
Backdrop
The case of copyright infringement was filled in the court in 2012. In September, Justice Endlaw said that, according to Section 52 of the Copyright Act, this instructional use did not amount to copyright infringement.
- He said, “Copyright, especially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations.”
- Justice Endlaw added, “Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public
The Judgement
Backbone of the Delhi HC’s judgement: If the predominant purpose of the law is to provide exclusive rights to owners of copyright, this right sometimes has to be muted to serve other equally important purposes such as education.
Parliamentary debate: HC referred to the parliamentary debate that led to the enactment of the Act in 2012. In that debate the minister piloting the bill had said that ““Of course, non-profit libraries should not be charged. Many of these copyrighted materials can be used, should be used and must be used in non-profit libraries”
Distinctions ignored: The judges chose to ignore the technical distinctions sought to be made between education and instruction, and between textbooks and course packs. Court held that teaching is fundamental to the progress of the society and right learning material is necessary to take care of the learning needs. Such material may be called by varied names like textbooks, guide books, reference books, course packs etc. Proliferation of education thus requirespromotion of equitable access to knowledge to all segments of the society, irrespective of their caste, creed and financial position
Principle of Fairness
Court said that the utilization of the copyrighted work would be a fair use to the extent justified for purpose of education meaning if the copyrighted material is used to make a learner understand what needs to be understood by him then it is fair use.
Example: If photocopying of a particular chapter from Lakshmikant is necessary for making students understand, let us say, centre-state relations, then it would come under fair use because the extent of fair use, which involves photocopying a copyrighted material in this case, is for the purpose of education.
Significance
The significance of this interpretation is that,
- It explicitly rejects the adoption of American standards (the four factor test) into Indian copyright law and grounds the principle of fairness within a philosophy of education, rejecting any claim that there should be either a quantitative or a qualitative restriction imposed
What is fair use doctrine?
Fair use is a US legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship
A publication contention
Argument by publishers: Publishers had argued that Sec. 52 of copyright Act 1957 allows for reproduction of a work, but by making it available through photocopies it is no longer a reproduction but a publication
Court’s stance: Court rejected the above argument and held that a publication has an element of profit (for instance, in mass publication), and neither does the use of a photocopy machine nor the use of an intermediary (a photocopier) qualify automatically as publication, and the only relevant test is whether copying is “in the course of instruction”.
How to test whether copying was done in the course of instruction?
The test to see whether copying is “in the course of instruction” involves “considering whether the inclusion of the copyrighted work in the course pack was justified by the purpose of the course pack i.e. for instructional use by the teacher to the class
Difference between September 16th and present judgement
While Justice Endlaw’s September judgement found absolutely no fact that was worthy of being tried since there was no prima facie infringement, in the present judgment the court has held that the specific question of whether the reproduction of full works are in the course of instruction is a matter that can be determined in a trial and has consequently remanded that issue back to a trial judge
Something you can quote in exam
It is important to remember that the very first copyright statute dating back to 1710, the Statute of Anne was called “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies
Conclusion
This is a very welcome judgment which has immense significance beyond India and could serve as a model for the interpretation of copyright statues in other countries which also face the challenge of sharp inequalities and high cost of learning materials.
Read More: Four factor test, Sec 52 of Copyright Act, DU Photocopy case
[2] Beyond the court’s remit
Context
The court has crossed its legal remit by extending a government policy of prohibiting liquor outlets in the vicinity of places of worship.
What has happened?
In a recent judgement Uttarakhand HC has banned liquor sale and consumption in three districts in the State
- It has also banned tobacco products within a five-km radius of three gurdwaras
Author’s contention:
- Crossing its legal ambit: Author states that the court has crossed its legal remit (scope) by extending a government policy of prohibiting liquor outlets in the vicinity of places of worship, to cover Rudraprayag, Chamoli and Uttarkashi from April 2017
- Assumed the power: The court has assumed the power to make regulations on its own even after observing that the State government “has taken laudable measures to prohibit the sale of liquor in specified areas”
- No such ban sought: Petitioner in the case had sought no such ban. The court has used a petition challenging the grant of a bar licence at a location near Haridwar as an opportunity to moralise on the evils of drink
- Conflicting judgement:Ironically, the Division Bench has found no illegality in the grant of licence as the bar concerned is situated outside the municipal limits where the prohibition operates. However, it has assumed to itself the power to give “sanctity” to the government order that prohibits liquor in the vicinity of the Char Dham (four holy shrines) by clamping judicial prohibition in the whole of the three districts.
Basis of court’s judgement
- Article 47: Court has cited Article 47 of the Constitution (Part of Directive Principles of State Policy), which says it is the duty of the state to raise the level of nutrition and standard of living of the people and improve public health, and to prohibit the consumption of intoxicating drinks and drugs
- Previous judgements: The Bench cites several judgments that hold that engaging in the liquor business is not a Fundamental Right.
Counter 1:However, these precedents invariably arise from challenges to government policies regulating or prohibiting the manufacture, sale and consumption of alcohol.
Counter 2: Earlier in 2016, the Supreme Court refused to entertain a petition seeking a nation-wide ban on alcohol, observing that this was a matter of policy into which it cannot venture
Conclusion
Author concludes by stating that judges should be wary of the fact that policy making is the domain of the executive and assuming such powers would only amount to judicial overreach, which is not healthy for a progressive and liberal democracy.
Read More: Uttarakhand HC judgement, Plea for nation-wide ban on alcohol
[3] The Indo-Pacific potential
Context
Article stresses on the need for India and Indonesia to work together to achieve a strong bilateral partnership
Issue: Indonesian president’s two day visit to Delhi
Reasons for India to advance the partnership with Indonesia
Author cites following reasons for India to work closely with Indonesia,
- Dormant Asian power: Author states that Indonesia has a huge potential. It is the world’s largest archipelago, in the Indian and Pacific Oceans
- Controlling the straits: It can potentially control virtually all the straits linking the southern Indian Ocean to the South China Sea
- Partnering up to counter China: India needs to look for partners who can play a stabilising role in the Indo-Pacific region as China is showing its naval muscle in the South China Sea and its strategic and commercial reach through the One Belt One Road initiative
- Security partners: India can team up with Indonesia to work towards security in the Indo-Pacific region. Partnering with Indonesia would address India’s policy concerns with respect to foreign powers whose strategic interest are based on their own perceptions which shift from time to time. For this purpose, the strategic partnership agreed in 2015 can be strengthened further.
- Role Models for each other: Indonesia is currently facing a struggle against the orthodox religious fundamentalist groups which view it as a Sunni Islamic state where minorities have to live by the rule of the majority. Being a multi-cultural and pluralistic society itself, India & Indonesia can work together on the model of peaceful co-existence of religious communities as an alternative to a rise of intolerance in many democracies.
- Economic & Cultural partnership:India and Indonesia can make a conscious attempt to enhance their economic and cultural relationship
- Economic partnership: India’s investment in Indonesia would be key in furthering this objective. Investing in a foreign country is a stronger tool for influence than trade. Indian investment in strategically important countries should thus be seen as an arm of its foreign policy. While there is already substantial Indian investment in areas like coal, textiles, steel, and the auto and banking sectors, much more can be done. Particular attention needs to be paid to increasing India’s presence in the manufacturing sector
- Industrial estates: A number of industrial estates have already come up in many places in Jakarta, Bandung, Surabaya, Medan and Batam. Of particular interest to India from a connectivity point of view should be the Medan industrial zone in north Sumatra. A shipping service from Chennai or Krishnapatnam to Medan via the Andaman Islands could be used to export Indian goods to neutralize, at least partly, the large imbalance in India’s trade with Indonesia
- Economic partnership: India’s investment in Indonesia would be key in furthering this objective. Investing in a foreign country is a stronger tool for influence than trade. Indian investment in strategically important countries should thus be seen as an arm of its foreign policy. While there is already substantial Indian investment in areas like coal, textiles, steel, and the auto and banking sectors, much more can be done. Particular attention needs to be paid to increasing India’s presence in the manufacturing sector
- Cultural partnership: In the areas of education, culture, and people-to-people relations, a thrust could be given to Indian Council for Cultural Relations scholarships in Indian universities, increased slots for training under the Indian Technical and Economic Corporation programme, closer academic exchanges, and vocational training by Indian companies in Indonesia.
- Lessons in tourism: India could also learn lessons on tourism promotion from Indonesia — from Bali, for instance, where Indians rank high in the list of nationalities visiting that island
- Simple Hinduism: India could also learn from Bali about a more ‘simple’ Hinduism that is relatively free from caste and sectarian divisions.
Conclusion
Author concludes by hoping that Indonesian president’s visit will spur a truly strategic relationship between India & Indonesia
ECONOMY
[1] Railways mulls exclusive suburban tracks
Context
The Railways will partner states through a special purpose vehicle (SPV)for suburban train systems, which would be empowered to propose a surcharge on passengers for recovering operating losses and capital costs of such projects.
What has happened?
Indian Railways may soon build exclusive rail tracks for suburban trains in a bid to ease congestion
Why?
Running suburban services on existing tracks adversely affects the capacity of freight trains and long-distance trains
Present situation
At present, the Railways is running suburban train services in certain sections on the tracks laid primarily for long-distance trains. The Railways has framed the draft guidelines to address the demand for more suburban trains from the state governments.
Equal participation
Suburban railway projects are proposed to be implemented and operated through a special purpose vehicle (SPV) with equal equity participation from the respective state governments and the Railways.
Dedicated Fund
According to the draft guidelines, state governments would set up a dedicated urban transport fund through “levy of dedicated taxes, levies, betterment tax, impact fee”, among others in the “influence zone of proposed railway station” to finance the capital cost of suburban train projects.
- Restructuring of fares& imposition of surcharge: The Indian Railways, on request from the SPV, may restructure fares on suburban trains and impose a surcharge to recover the operating losses and the capital cost “if operating losses are not recovered from the dedicated urban transport fund.”
Land acquisition
States will have to ensure there is no delay in land acquisition and Indian Railways will only contribute its equity share to the SPV once 70 per cent of the land to be acquired is made available by the state government, as per another proposal. States will have to bear the complete cost of land acquisition, leasing of railway land and resettlement and rehabilitation.
What is a special purpose vehicle (SPV)?
The acronym stands for special purpose vehicle. The word vehicle can be interchanged with market entity. In the US, the term used is special purpose entity (SPE).
- The name SPV is given to an entity which is formed for a single, well-defined and narrow purpose. An SPV can be formed for any lawful purpose. No SPV can be formed for an unlawful purpose, or for undertaking activities which are contrary to the provisions of law or public policy
- An SPV is, primarily, a business association of persons or entities eligible to participate in the association
Is there any difference between SPV and company?
- SPVs are mostly formed to raise funds from the market. Technically, an SPV is a company. It has to follow the rules of formation of a company laid down in the Companies Act. Like a company, the SPV is an artificial person. It has all the attributes of a legal person
- It is independent of members subscribing to the shares of the SPV. The SPV has an existence of its own in the eyes of law. It can sue and be sued in its name. The SPV has to adhere to all the regulations laid down in the Companies Act. Members of an SPV are mostly the companies and individuals sponsoring the entity
Indian Express
[1] Rooting out graft
Context
A strong Lokpal and protection of whistleblowers hold the key to eliminating corruption.
Backdrop
There was a large scale anti-corruption mobilization in 2011 by movement led by Anna Hazare. It finally led to the passing of the Lokpal Bill in Parliament in December 2013 as the Lokpal and Lokayukta Act. A little less than six months later, a new government was in charge. But three years later, there is still no Lokpal.
- The Delhi Jan Lokpal bill which was passed by Delhi assembly in December 2015 was returned by Centre
Government’s argument
The search committee has not been formed because there has been no leader of Opposition in the Lok Sabha.
Note: It should be noted that SC has pulled up government for its dilly dallying attitude towards Lokpal. Article regarding this has already been covered in brief dated 24th November and 8th December
Difficulties in RTI implementation
In the light of the above info, author surmises that, only RTI is there presently which can be used to effectively fight against corruption and bring it out in the open but the implementation of RTI has been marred by difficulties.
- Pending appeals due to pending vacancies: First, according to VenkateshNayak, the co-convenor of the National Campaign for People’s Right to Information (NCPRI) and coordinator of Access to Justice Programme at the Commonwealth Human Rights Initiative, about 1.8 lakh appeals and complaints were pending before the 29 information commissions across the country in 2014-15. This is either due to lack of response from the public officers to demands for information or unreasonable delays in providing information.
Solution:This problem can be partially solved by reducing the number of vacancies, which represent 24 per cent of the 149 posts of information commissioners across the country
- RTI activists under pressure: RTI activists are under immense pressure. In 2011, Central Information Commission (CIC) had passed a resolution that if a complaint regarding assault or murder of an information seeker is received then it will examine the pending RTI applications of the victim and order the concerned department(s) to publish the requested information suo moto on their website as per the provisions of law. This resolution has not been systematically implemented and the situation has deteriorated even more.
- Whistleblower Protection (WBP) Act: To protect RTI activists, a whistleblower act was passed in 2014 but it falls seriously short of offering any respite to them and needs to be upgraded in several respects.
Suggested improvements to Whistleblower Act
- NCPRI’s recommendations: Read them here
- The Asia Centre for Human Rights has also made three recommendations
- Mandatory and immediate registration of FIR on complaints about the use of force or attacks against RTI activists
- Inquiry by a police officer not below the rank of deputy superintendent of police within three months
- Trial of the accused within six months if the offence is established by investigation.
Dilution of WBP Act
Author states that the above listed suggestions for improvement have not been implemented but various amendments were introduced in 2015 to dilute the WBP Act.
- One of them implied that the Official Secrets Act, 1923 applied to whistleblowers; this means they can be prosecuted for possessing government documents on which their complained were based
- The amendments also excluded from the ambit of inquiry any matter of “public interest” affecting the “sovereignty and integrity of India” or matters related to “commercial confidence
Conclusion
Author concludes by stating that the problem of corruption needs to be rooted out of our country and for that a strong Lokpal is the way to go.
[2] Next Door Nepal: Mindless about the map
Context
Streets erupt as political impasse over reconstituting provinces continues.
Article gives an insight into the prevailing situation in Nepal and future turn of events that may follow.
Give it a go through once.
Live Mint
[1] Leveraging the sun to power India’s future
Context
This solar power sector has enormous potential but many challenges lie ahead as well.
Author starts the article by stating the general perception wherein India’s solar energy targets were considered too ambitious but slowly and steadily the answers are emerging.
India’s renewable energy target: 175GW of renewable energy, by 2022
- Break up: 100 GW from solar, 60 GW from the wind, 10 GW from biomass and 5 GW from small hydroelectric projects
Progress being made
- Rooftop solar power: Solar Energy Corporation of India (SECI) called for bids to install 1GW of rooftop solar power projects on central government buildings—its largest tender yet in this segment
- Largest single-location solar plant: India is already home to the world’s largest single-location solar power plant which has been set up by the Adani Group at Kamuthi in Tamil Nadu. The 648 megawatts (MW) project, built in a record time of eight months, dislodged California’s 550MW Topaz Solar Farm in September to secure the top spot and propel India past the 10GW total capacity threshold
- On track to achieve Paris targets: India seems to be on track to achieve its Intended Nationally Determined Contribution, promised as part of the Paris pact to fight climate change, to get at least 40% of its total installed power from non-fossil fuel sources by 2030
Progress: In stats
- Growth rate of solar sector: According to a Bloomberg New Energy Finance report, the solar sector has had an impressive compound annual growth rate of 59% in the last four fiscal years and its installed capacity at the end of the FY2016 was pegged at 6.8GW.
- Share of renewable energy increased: The share of renewable energy in India’s total energy mix has also increased from 12.5% in FY2013 to 14.1% in FY2016
Potential
According to the government-developed India Energy Security Scenarios,
- India can achieve 479GW of solar power and 410GW of wind power by 2047
Pricing
There have always been concerns regarding the pricing of solar energy.
- Record low tariff: In this regard also, SECI reached new frontiers yet again in November with a record low tariff offering of Rs3 per unit at an auction. The winning firm at the above auction has promised these rates specifically for Uttarakhand, Himachal Pradesh and Puducherry
- Falling tariffs: Author states that the solar energy tariffs have been falling since 2010 when they were at Rs 17.91.
Examples:
- Finnish company FortumFinnSurya Energy Pvt. Ltd quoted Rs4.34 per unit to secure the contract for 70MW solar plant at NTPC’sBhadla Solar Park in Rajasthan
- US-based SunEdison offered to sell power at Rs4.63 per unit to win NTPC Ltd’s contract for a 500MW solar park in Andhra Pradesh
Lower tariffs: A double edged sword
- Lower tariffs mean that solar energy can compete with energy produced from fossil fuels. Today, India’s cheapest electricity tariff is at around Rs1-2 per unit. This rate is for the farm sector which is followed by the residential sector and then the commercial sector.
- Lower tariffs have also fueled concerns regarding viability and project financing especially for the bids below Rs 5 per unit.
Work still left to be done
- Capital for developing infrastructure: India still has to make available the necessary capital for developing renewable energy infrastructure, the former Planning Commission had estimated under the 12th Five Year Plan that more than a trillion dollars will be required
- Addressing distribution issues: Several structural issues in the distribution of power need to be addressed. India’s installed capacity of 275GW is already in excess of its demand of 140GW. Yet, there are still parts of the country where there is no electricity while in many others, power cuts are the norm.This is due to a variety of factors such as coal supply shortage, transmission losses and the poor health of power utilities.
Read More: Indian Energy Security Scenarios
[2] Costs and benefits of the currency swap
Context
Has the govt prepared for the costs of its decision and done its homework on logical next steps to help India leapfrog to the next stage of development?
Article is on demonetization move by the government. Demonetization has already been covered in detail in previous briefs.
Give it a go through once.
[3] Revamping the Income Tax Appellate Tribunal
Context
The solution to delays could very well lie in prioritizing and scheduling the workload properly.
Issue: Improving India’s tax environment
Author states that the tax administration and adjudication infrastructure will face increased workload now in the face of recent demonetization move.
Reforms needed
Author states that Indian tax administration and adjudication needs urgent reforms.
- The latest World Bank Doing Business Index ranks India 172 out of 190 countries on the “Paying Taxes” parameter
- Only first level appeals considered: Even this metric is based on only the first-level appeals—from assessing officers to commissioner of income tax (appeals) [CIT(A)]. And, as the ParthasarathiShome Committee has pointed out, in about 75% of the cases, CIT(A) rules in favour of the tax department
Income Tax Appellate Tribunal (ITAT)
The mechanism through which citizens have re-course against the Indian tax administration is the Income Tax Appellate Tribunal (ITAT), which is not considered in the World Bank rankings.
- ITAT is an independent tribunal dedicated to direct tax litigation
Authors state that stringent actions by tax department would result in more appeals to ITAT, which if not adequately resourced could result in deterioration of performance
Study: Evaluation of current performance
To adequately resource ITAT, it is important to first know what is its current performance. A recent study was conducted by the authors, using publicly available data from cause-lists published by ITAT, and rulings available on Indiankanoon.org.
- This gave them details of around 500,000 hearings over 39 months (January 2013 to March 2016) of 126,000 cases and around 28,000 rulings. Analysing its workload and functioning gave authors novel insights into ITAT’s performance
Current performance
ITAT operates across 21 cities with 105 members. Each city has one or more benches. As of July, ITAT had on an average about 880 cases pending per member
- Time taken to dispose a case: ITAT takes on an average 36-48 months to resolve a case. This compares favorably with the five-six years taken on an average across the subordinate courts in the country. The volume of cases is likely to increase if the government is serious about reducing tax evasion. Unless ITATs are resourced to handle this sudden increase in workload, the average time taken for disposal of cases may see a sudden increase from the current 36 to 48 months
- No uniformity: As per the study, the highest number of pronouncements in Mumbai (24% of its yearly pronouncements) happens in May, while for Delhi it is March (14%). January to March have 30% of the yearly listings. In Kolkata, about a third of all cases listed in a year are in March. This shows that ITAT does not function uniformly throughout the year (much like many other courts in the country).
Performance improvement
- Remedy 1: increasing the number of judges or the number of benches to deal with increased caseload
Problem: Authors’ analysis suggests that while a minimum level of infrastructure is important, merely increasing the number of benches or judges is unlikely to deliver better results, as cities with similar numbers of benches and members exhibit very different performance levels
- Remedy 2: Scheduling and prioritizing the workload properly. Although ITAT is a specialized court, there are variations in the complexity and urgency of the cases that come before it. Rules can be framed as to how different types of cases can be prioritized.
Conclusion
Authors conclude by stating that more such studies are needed so that India can improve its ranking on the “Paying taxes” parameter and ensure that citizens have access to an independent and impartial appeals mechanism.
[4] Koushal judgement and three years later
Context
The most insidious effect of Section 377 is to warp the relationship between the State and the citizen.
Backdrop
- In July 2009, Delhi HC under its landmark judgement held that Section 377 of the Indian Penal Code did not criminalize adult same-sex consensual sexual relations
- In July 2013, while delivering its judgement in the Suresh Kumar Koushal v. Naz Foundation, the Supreme Court reversed this finding and once again made homosexuals criminals in their own country. SC held that if a law has been enacted by parliament then it cannot change it and have to presume that it is constitutional
Author’s counter argument:
- Author argues that SC forgot that the Section 377 was never enacted by the Indian Parliament. It had been enacted in 1860 by the British Parliament and thrust upon the Indian people without any public discussion or debate.
- Secondly, judicial review, a power conferred upon SC to protect the constitutional rights of the minority against the possible tyranny of the majority should have been used in this case
Present situation
Although SC admitted curative petitions against the Koushal judgement but still the law stands as good and discrimination against homosexuals continue.
Mere existence of law is a threat enough
Many argue that Section 377 is rarely enforced and so has little relevance. Author states that this view is highly wrong as a provision need not be formally enforced when the mere threat of its enforcement can have a chilling effect. There are multiple instances of police and other authorities threatening the invocation of the provision for the purposes of extortion.
Relationship between citizen and state: In criminalizing the sexual act felt most natural by a class of people, the Section seems to disallow a citizen the freedom to live life to the fullest extent guaranteed by the Constitution. The State has today told us whom we may not love. Tomorrow it may tell whom we have to. The Section also violates basic norms of private sexual conduct.
Conclusion
Author concludes his article by hoping that the court would find time in its busy docket to take up and overrule the Koushal judgement. The hundreds of thousands of people in the closet are waiting for the court to unlock them and guide them to freedom.
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