The real winners at Bali
At the ninth ministerial meeting at Bali in Indonesia, trade Ministers, representing the 159 members of the World Trade Organization (WTO), managed to reach an agreement in the wee hours of December 6. The fact that an agreement was possible at all is seen to be as significant as the issues on which a consensus was reached. This is because the WTO and the Doha round, in particular, needed a booster shot as it were to retain their relevance.
Days before the Bali meet, discussions, among trade officials, were leading to nowhere. It was widely feared that the Bali ministerial would go the way of all its predecessors.
The Doha development round was launched way back in 2001, soon after the terrorist attack in the U.S. in a bold move to infuse confidence in world trade. Yet, several ministerials, attended by political leaders and countless negotiations involving officials at the WTO headquarters at Geneva and elsewhere, failed to produce a single agreement during the 12-long years.
So much so, the feeling was universal that the Doha round had slipped into irrelevance. Its moribund state called into question the very basis of multilateral trade that the WTO has been propagating.
A dwindling faith in multilateralism has spawned several moves to bypass the WTO. Thus, as member-countries started reposing faith in bilateral agreements among countries and regional pacts to reap short-term gains, world trade was getting ‘balkanised’, making the eventual move towards multilateral trade that much more difficult. India and other developing countries, even while actively pursuing the bilateral route and regional pacts, had every reason to worry over the long-term consequences of the drift away from multilateral trade.
In many ways, the Bali agreement was driven by a fear that the big emerging economies would be left out of two giant trade pacts in the offing. Specifically, the U.S. and the EU have launched negotiations to conclude a trans-atlantic trade agreement. Japan and ten other Pacific Rim countries are getting close to finalising a Trans-Pacific Partnership. India, Indonesia, Brazil and Russia, which are unlikely to figure in the above pacts, see in a revived WTO their best hope for having a voice in global trade.
To the WTO’s rescue
The role of the new WTO Secretary-General, Roberto Azevedo, has been very significant. In fact, many commentators say he is the real star of the Bali meet. There were apprehensions that a career diplomat from Brazil, a developing country, would not quite fit the bill. Neither the E.U. nor the U.S. had backed his candidature unequivocally. In these circumstances, Mr. Azevedo pulled off a deal, which, under WTO rules, requires unanimous support from all members.
A revived WTO is good for all countries. Its success in years to come will depend how the more intractable parts of the Doha round are taken care of.
The Bali Declaration has major implications for India and other developing countries. Of the two main issues — food security and trade facilitation — on which the agreement was reached, the former concerns India and other developing countries, which need to subsidise food for the poor, while the latter is significant for developed and developing countries. India, represented by Commerce Minister Anand Sharma, has claimed victory for holding out and eventually securing important concessions in food subsidy.
The core discussions on agriculture centred on two viewpoints on the price benchmark for the valuation of food stocks that a country can legally hold. India wanted current prices to be the basis, but that was not acceptable to the U.S. and many others.
Among other reasons, it would involve amending the Uruguay Round agreements. India, as an alternative, proposed an interim solution.
The U.S. suggestion for a sunset clause of four years was not acceptable to India. A final deal was struck to have an interim agreement until a more permanent arrangement was worked out. So, obviously, many more rounds of discussions are on the cards.
The interim nature of the agreement is just one of the reasons that diminish the gloss from India’s ‘victory’
Quarries may not be let off on 10-hectare rule
Public hearing to be held even if mining area is less
The State Expert Appraisal Committee has received complaints against quarries causing environmental hazards in some parts of the State.
With many quarries using the 10-hectare limit to escape holding public hearings for getting environmental clearance, the State Expert Appraisal Committee on granting the approval may lend its ears to public complaints about environmental hazards caused by mining.
Since the State Environment Impact Assessment Authority has made the hearing mandatory only for quarries with mining areas above that limit, no application showing a higher area has reached the committee for clearance, a panel member says.
Encroachment
But the committee has received a few complaints against quarries in Kottarakara, Neyyattinkara and some other parts of the State. Besides complaints about environmental hazards, some of these units have allegedly encroached on government holdings. In such cases, the committee is likely to hold public hearings before considering their applications for environmental clearance, another member says.
Social auditing
Social auditing needs to be carried out in case of the mines facing public complaints. The panel will move in that direction and listen to the voices of the public, he adds.
The committee has received 110 applications from miners seeking environmental clearance. The Union Ministry of Environment and Forests has directed that all quarries should get environmental clearance from the committee before December 31.
The responsibility of holding the public hearing rests with the District Collectors. Recently, some of the panel members were blocked by people as they reached a quarrying site near Thiruvananthapuram for inspection, the member says.
In some cases, quarry owners have filed separate applications for contiguous plots to come under the 10-hectare limit after splitting the mining area.
As the contiguity of such plots can be identified from the maps submitted along with the applications, those were rejected or delisted, he says.
Owners’ plea
Registered metal crusher unit owners say the legal provision for public hearings has become void following a recent order of the National Green Tribunal. alathingal Abdul Razak, coordinator of the Registered Metal Crusher Unit Owners’ Association, says the tribunal has clarified that the order for public hearing is applicable only for sand-mining and not for quarries and crusher units.
Barring a few mega granite mining units, the operations of most quarries were restricted to five hectares or below. The association will demand that the tribunal order be implemented in the State, he says.
Panel to monitor major projects
A high-power committee has been set up to scrutinise and grant approval to 10 major infrastructure development project proposals, release funds, ensure timely implementation of the projects, and check the lapse of Rs.846.03 crore provided in the budget.
The government has issued guidelines for the release of funds for the 10 projects, which include the Capital City Development Programme, monorail in Kozhikode and Thiruvananthapuram, High-Speed Rail Corridor, ICTT Vizhinjam, Kochi Metro, and Kochi-Palakkad National Investment and Manufacturing Zone. The Additional Chief Secretary (Finance) will head the committee, which will have the State Planning Board Secretary and the Industries, Transport, Sports and Youth Affairs, and Ports Secretaries as members. The Secretary, Planning and Economic Affairs, will be the member coordinator of the committee, and the heads of the departments concerned will be the special invitees.
Bottlenecks
The setting up of the committee comes in the wake of the finding that there are several bottlenecks in the timely utilisation of funds provided for major projects, especially in the initial stage, official sources told The Hindu . The funds provided either lapse or are utilised for other schemes by re-appropriation.
The Petroleum Chemicals and Petrochemical Investment Region, Kannur International Airport, Mobility Hub, and 35th National Games figure among the 10 projects. The outlay of Rs.846.03 crore will be controlled and operated by the Secretary, Planning and Economic Affairs Department. The amount was provided under a single head in the 2013-14 budget with flexibility to utilise against any of the 10 projects, depending on requirement. The release of the funds will be need based and when the actual expenditure falls due. It has been decided that ad hoc/advance release of funds before expenditure becoming due will not be allowed.
Guidelines issued
As per the guidelines issued, the respective departments will have to submit proposals to the high-power committee for approval and sanction.
The departments have been asked to submit the proposals in accordance with the general guidelines prescribed by the Special Working Group. The committee will scrutinise the proposals and grant approval. It has also been given the power to consider the proposals on a first come, first served basis, and decide the amount to be released for each project.
It will ensure
implementation
in time
Government has issued guidelines for fund release
It’ll be ‘collaborative approach’ in India-Canada civil nuclear ties
We can meet India’s huge need for uranium, says High Commissioner
Stewart Beck
India and Canada are aiming for closer partnerships in civil nuclear energy and hydrocarbons with the dissipation of distrust that kept them estranged for 40 years after India had conducted a nuclear test in 1974.
India will take the first cargo of oil sourced from Canada’s east coast in January. Indian refiners are interested in importing Alberta blended bitumen from its Saint John terminal.
This relationship would be supplemented with a “collaborative approach” in the civil nuclear sector, decks for which have been cleared with the signing of a civil nuclear accord and finalising of administrative arrangements, Canadian High Commissioner Stewart Beck toldThe Hindu .
Canada’s ties in the nuclear sphere began in the mid-1950s and lasted till India’s first nuclear test in 1974. Last year, Canada closed that chapter when its Foreign Minister John Baird said his country had “turned the pages of the last century.”
Now, Canada’s ice-free marine terminal at Saint John would cater for very large crude carriers (VLCC), thus making transportation economical. “Indian refiners like that product and there will be significant benefits for them,” pointed out Mr. Beck.
The two sides have just completed an energy dialogue which has been elevated from the bureaucratic to ministerial level. Consultations on foreign policy issues have also picked up and External Affairs Minister Salman Khurshid visited Canada in September for this purpose.
“The idea of developing shale oil and gas, mainly by the U.S. and Canada, has galvanised the geopolitics of the energy market,” noted Indian Council of World Affairs scholar Zakir Hussain. Three scenarios might emerge. First, the lowered gas prices will force key producers to readjust production and they may consider forming a cartel; second, gas may begin to be independently priced; and third, this independent pricing would ultimately have an effect on oil prices, he says.
“We are now putting in force a civil nuclear partnership. India has several reactors derived from Canadian technology but since then it has gone on its own path of development. We are now in a situation where the two can talk to each other. There is a huge need in India of uranium which we can sell,” said Mr. Beck.
Bilateral trade
Both Prime Ministers had set the bilateral trade target at $15 billion by the end of 2015 fiscal. It was to be assisted by a Comprehensive Economic Partnership Agreement (CEPA). Even as CEPA continues to be discussed after eight rounds of negotiations, Mr. Beck is pessimistic about the bilateral trade target.
However, he forecasts a breakthrough in investments as Canadian pension funds are looking at India’s infrastructure requirements. The Canada Pension Plan Investment Board (CPPIB) has already announced investment of $200 million. This is a small amount but precursor to more funds lining up to invest in India such as the Ontario Teachers’ Pension Plan.
As for education, Mr. Beck sees it as a low-hanging fruit and claims that Canada’s efforts are not about attracting Indian students but replicating the Canadian system of strong elementary and high schools. Students will then opt for either university or the vocational stream with no stigma attached to the latter.
In hydrocarbons tie-up, India will take first cargo of oil sourced from Canada’s east coast next month
Energy dialogue elevated from bureaucratic to ministerial level
We can meet India’s huge need for uranium, says High Commissioner
A mission to secure currency for bitcoin
It’s stored in electronic wallets, can be traded on online exchanges and converted into cash
With India’s first bitcoin exchange gearing up to start operations hopefully by next March, hundreds of investors, enthusiasts and banking officials gathered here on Sunday, on a mission to convince the government that the virtual currency is enduring and serious.
Started in 2008, bitcoin is the most prominent amongst a group of digital currencies — money that exists in the form of computer code —that do not have a central issuing authority. These virtual currencies are stored in electronic wallets and can be traded on online exchanges and converted into cash.
At India’s first bitcoin conference — organised by digital currency awareness organisation CoinMonk— the top issue was how to convince the government and regulators that the bitcoin ecosystem would be a valuable economic innovation and not the currency of choice for money laundering and illegal drug purchases.
Several Indian companies, whether they are online exchanges, trading platforms or bitcoin ‘mining start-ups,’ have already started hiring lawyers and lobbyists to make their case to various government agencies and to demonstrate to potential banking partners that they take regulators seriously.
‘Remittance tool’
“In India, bitcoin can help solve the problems of the unbanked rural population. It is also a potential remittance tool. We are working with lawyers to draft possible policies that we could present to the RBI and other government agencies by next month,” said Sunny Ray, Director of Business Development at Buttercoin, a free bitcoin exchange that is backed by investors including Google Ventures.
Buttercoin hopes to tentatively start its India operations by next March, which would make it the first domestic exchange.
The Reserve Bank of India, which has so far maintained silence apart from issuing a statement that it is adopting a ‘wait and watch’ stance on bitcoin, had a few observers at the conference. They, however, refused to speak to the media.
For the team that is developing India’s very own digital currency, dubbed ‘laxmicoin,’ the RBI has been unresponsive.
“We need a local digital currency to help local businesses. That’s how laxmicoin started. We sent them [RBI] queries and proposals awhile ago and are waiting to hear from them in order to start the launch of laxmicoin,” said Deepak Mantwal, a founding member of the Jaipur-based Laxmicoin team.
For many others, the Bangalore conference was a step forward in the eventual creation of a bitcoin trade group or association that could protect the rights of users and entrepreneurs.
“We don’t want banks or the government to shut down exchanges and other companies that thrive on the bitcoin system just because it’s scary. Close to Rs. 1.20 crore worth of bitcoin transactions are done from India every month. We need to figure out a way we can all exist,” said Karthik Jeyraj, a bitcoin enthusiast and researcher.
RBI adopting wait and watch stance; observers present at Bangalore conference
“Don’t shut down exchanges and firms thriving on bitcoin system just because it’s scary”
‘Rs. 42,000-crore loss in power sector due to policy and bureaucratic logjam’
The policy and bureaucratic logjam has caused a loss to the tune of Rs. 42,000 crore in power sector alone.
The phenomenon has impacted 78,000 megawatt power production in coal and gas-based power plants, according to Arvind Kumar, Union joint secretary, Ministry of Finance.
Speaking at Ravi Mathai Memorial Lecture held by the alumni of the Indian Institute of Management-Ahmedabad at Hyderabad on Saturday evening, he said, “As of December 11, 400 projects worth Rs. 17.68 lakh crore in power, steel, coal, mining and petroleum are pending with Cabinet committee on investments for clearance. We need to ease logjam, improve quality of infrastructure to get commissioned and financed projects going.”
Delivering the keynote address, K.V. Kamath, non-executive chairman of board of directors, ICICI Bank, said the economy was given a wrong medicine in the form of increasing interest rates.
‘No reaction to
any medicine’
“The economy has not reacted to any medicine, even the repeated interest rates. For the economy to pick up momentum, one needs to address the problem of supply and distribution, especially in food and related issues,” Kamath said.
The forthcoming government should learn from the past mistakes and challenges and should give momentum to the cycle of growth.
“We need to stall the on-going projects and get new ones,” he said.
There has been a significant drop in the financing of infrastructure projects at ICICI bank in the past two years, according to him.
Incorporation of “backward villages” sparks row in J&K
Home districts of Ministers in-charge bag lion’s share
In the latest incorporation of the ‘backward’ villages in Jammu and Kashmir, the proverbial lion’s share has gone to none other than the Ministers in-charge of the Social Welfare Department: 17 of the 23 villages declared as ‘backward’ by the Omar Abdullah Cabinet in Kashmir division on December 9 are situated in the Minister in-charge Sakeena Itoo’s home district of Kulgam. Almost all the 22 villages picked up in Jammu division are either from the Minister of State for Social Welfare Weqar Rasool Wani’s home district of Ramban or from the adjoining Doda district — a Congress bastion.
Candidates from the “backward villages” get a reserved quota in government jobs, scholarships and professional training admissions. Identification of such villages is the responsibility of the autonomous Jammu and Kashmir State Commission for Backward Classes [SCBC] which practically functions under the administrative control of the Social Welfare Department.
The task of incorporating in the list the last uncovered village of Ms. Itoo’s Assembly constituency of Noorabad has now been accomplished.
In a conversation with The Hindu , Ms. Itoo admitted that the village picked up from Noorabad was the last uncovered hamlet of her constituency. “Entire Noorabad constituency stands declared as backward since the time of my father (former MLA and Assembly’s Speaker Wali Mohammad Itoo).”
She confirmed that eight villages each had been picked up from her junior Ministerial colleague Mr Wani’s Banihal-Ramban belt.
Among two of the State’s most backward districts, two villages have been enlisted in Kupwara and none in Budgam. Ms. Itoo, however, sought to dispel the impression that she and Mr. Wani had influenced the selection.
“SCBC is a fully autonomous body. It conducts the whole exercise independently according to 53 socio-economic indicators. It recommends the identified villages to the Cabinet through my department, but we don’t make any additions or alterations”, she asserted.
Some of the well-placed officials nevertheless insisted that the Minister had influenced the selection and got 17 of her district’s villages incorporated through the District Development Commissioner. “That’s not true. It’s just the beginning of a continuous process as the SCBC was not operational for over two years. We have just revived the commission. It will soon extend to other districts,” Ms Itoo said.
Secretary, Social Welfare, Mohammad Shafi Rather, said that the SCBC comprised four members and Chairman who were all “known for their integrity”.
“Two of them are former district judges. The Chairman is a retired judge of J&K High Court. Nobody has ever raised a finger of doubt over their competence and integrity,” he said.
Chairman SCBC Justice [retd.] Ali Mohammad Mir told The Hindu that there was “no question of interference” from the politicians and the government. “We have rejected even two villages recommended to us from the Chief Minister’s constituency of Ganderbal,” Mr Mir said
Candidates from these villages get a reserved quota in government jobs, etc.
‘SCBC comprises four members and Chairman who are all known for their integrity’
CMs reach accord on trade, agriculture
They agree on a 12-point agenda covering a wide variety of issues
The Chief Ministers of the two Punjabs have committed to further trade, develop people-to-people contacts and learn from each other in the areas of agriculture, livestock breeding and land administration – issues that concern the majority of the people in the two provinces.
In a joint statement issued in Amritsar, Pakistan Punjab Chief Minister Shahbaz Sharif and his Indian counterpart Parkash Singh Badal resolved to pursue the matter with their respective Union governments.
The two Chief Ministers plan to form a joint committee with three members from each side to facilitate increased cooperation between the two Punjabs and liaise with their Union governments for supportive policies in this regard.
The joint statement expressing the resolve to improve ties between the two provinces that share a common culture, social milieu, language and family kinships came just before Mr. Sharif was to cross over to Punjab, Pakistan.
Mr. Sharif, the younger brother of Pakistan Prime Minister Nawaz Sharif, was here on a four-day visit. .
The two Chief Ministers agreed on a 12-point agenda covering a wide variety of areas, including easy access for people of both sides of the border to religious places of their respective faith, contacts between professionals, students, academics, sportspeople and artistes.
As agriculture is the backbone of both States, the two Chief Ministers resolved to step up contacts to share their expertise in livestock, veterinary sciences and water management.
Agree to modernise the Attari- Wagah land border trading stations
Pakistan Punjab CM Shahbaz Sharif
and his Indian counterpart Parkash Singh Badal issue joint statement
Resolve to step up contacts to share expertise in livestock, water management, veterinary sciences
Going Against The Tide of History
The Supreme Court, in its judgment in Suresh Kumar Koushal and another v. NAZ Foundation and others (Civil Appeal No. 10972 of 2013) upholding the constitutionality of Section 377 of the Indian Penal Code, has been widely perceived to have espoused a principle of judicial deference to Parliament. This view has forced a shift of focus amongst gay activists and right-thinking citizens to the legislature, in the hope of corrective reform. In deferring to the will of Parliament in a matter that involves testing a statute against the touchstone of the Constitution, the Supreme Court was legally wrong and disingenuous, and seemingly allowed its personal ideological views to determine the interpretation of statutory law. The only silver lining which this otherwise woeful exercise of judicial decision-making provides is an opportunity to reconceptualise the Court in the public imagination, aligning it more closely to the reality of its present functioning rather than its erstwhile glory.
Matter of constitutional law
Three main constitutional questions confronted the Court in this case. First, whether Section 377 which criminalises “carnal intercourse against the order of nature” is discriminatory, thereby violating Article 14 of the Constitution; second, whether it violates the right of LGBT people to live with dignity, protected under Article 21 of the Constitution; third, whether criminalising private consensual acts between adults violates their right to privacy, also protected under Article 21 of the Constitution.
The Court summarily dismissed the first constitutional challenge on the ground that those who indulge in carnal intercourse in the order of nature and against the order of nature constitute different classes. This is a wholly insufficient and unreasoned justification. Instead, the key question should have been whether such classification is reasonable, an issue that the Court did not address. Using an analogy, by the Court’s logic, because men and women constitute different classes it is permissible to say that only men will be allowed to be enrolled as advocates who can practise before the Supreme Court, and not women. Such logic is as much absurd as it is incredible, coming from the Supreme Court of India — though not entirely surprising for those who closely follow the Court’s judgments.
Again, with regard to the argument based on dignity of LGBT people under Article 21, the Court holds that the purported harassment faced on account of misuse of this provision by police officials is neither mandated nor condoned by the Section itself. This is sophistry as it conveniently ignores a central facet of leading a life with dignity, that is, not being criminalised for being oneself. As far as privacy is concerned, the Court’s treatment is frankly unintelligible. It merely cites a key Supreme Court precedent laying down a right to privacy but does not even attempt to apply the law to the facts of the case.
A combination of inadequate justification, sophistry and a woeful non-application of mind makes the unfortunate conclusion inescapable that the judgment ultimately rests on a deep-seated prejudice shared by the two judges that has no place in a legal judgment. For a proper legal adjudication of the issues raised, it is imperative that a review petition is filed and taken up by the Court speedily.
Not a case for deference
Despite the questions in this case being squarely matters of constitutional law, an extraordinarily high degree of deference is shown by the Court to Parliament. This takes two forms — presuming constitutionality of the statute and suggesting that reform of the provision is the prerogative of Parliament, one that it has chosen not to exercise thus far. The former is unproblematic, an established principle of constitutional interpretation. The latter, however, is nothing short of judicial abdication of constitutional duty in the guise of deference. Deference as a principle refers to the attaching of different weights by courts to decisions of elected branches of government on grounds of legitimacy and competence. Widely used in common law jurisdictions, cases where courts defer to the government usually involve questions of government policy, or highly technical matters where the Court recognises its own limitations.
Effective legal remedy
Scarcely has it ever been accepted in a case concerning the fundamental rights of citizens. In fact, the European Court of Human Rights in Smith and Grady, a case pertaining to the United Kingdom’s policy of discharge of homosexuals in the armed forces, not only struck down the policy but found the extent of deference shown by the domestic courts to be violative of the legal requirement of providing an “effective legal remedy” under Article 13 of the European Convention of Human Rights. At the same time, never has the fact of non-reform of a law by Parliament been a reason to defer to it. This is natural since the converse would lead to an absurd proposition where the mere existence of a law creates reason to defer to Parliament thereby rendering futile the raison d’ être of a Court as a counter-majoritarian institution.
The Supreme Court, by referring to the fact that Parliament has chosen not to reform the law as a factor which must “guide [their] understanding of character, scope, ambit and import” of the provisions that squarely raise purported violations of fundamental rights, has used deference to shy away from performing its own constitutional duty.
Further, such usage is entirely disingenuous. The Court’s parting words in this case, “[n]otwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 of the IPC from the statute book”, are remarkable. Though in substance a platitude, given that Parliament can legislate on whichever issue it desires without any necessity for a judicial imprimatur, it is phrased as an extraordinary concession on the part of an all-powerful Court as if Parliament were its delegate. It hardly reflects the tone of a genuinely deferential Court.
Re-engaging with the Court
This judgment has understandably caused great dismay amongst LGBT activists and advocacy groups that use judicial intervention to redress grievances against minorities of all stripes in India. Though such dismay is entirely justifiable, the extent of outpouring of rage and grief stems in some measure from the belief that the Supreme Court of India, as a respected judicial institution, would certainly rule in their favour.
Such a view, that the Court will always ‘do the right thing’, is unarguably a testament to the Court itself and its long history of rectitude and progressiveness. But over the last few years such a view has been largely based on a mythical view of the Supreme Court as an apolitical institution, acting when the recalcitrant political class fails to, saying the things that we want to hear. The widespread public support for the Court has thus been built on a combination of support for the result the Court reaches, as well as the nostalgia associated with the heady early days of public interest litigation, enshrined today in popular perception of the Court in mainstream media.
This judgment must lead to deep introspection with regard to this perception. For many years, those who follow the Court have, often privately, rued the abject deterioration of the quality of its judgments. But when a judgment so deficient in its reasoning and so sloppily formulated in a case of such magnitude is delivered, it must serve as a call to arms for all those in a position to critically engage with judicial decisions. Public criticism is the only real accountability device for an otherwise unaccountable institution. It is imperative that the Court is taken to task, not only for this decision, but for all its other decisions whose results we might agree with as citizens, but whose reasoning is inexplicable at best and absurd at worst, using methods that violate every canon of judicial discipline.
At the same time, it is equally imperative to see the Supreme Court of India, not on the basis of what it was meant to be by the framers of the Constitution or what it was in its early history, but what it has become today: an overtly political institution.
On an everyday basis, the Court adjudicates legal and moral questions that affect the lives of millions of people, it makes value judgments, uses its discretion to fill gaps in the law, makes choices in preferring one argument over another. For too long we have refrained from asking the basis on which the Court comes to these conclusions, sanguine in the antiquated and artificial view of the Court comprising a few good, apolitical men. In upholding the constitutionality of Section 377 of the IPC, the Court has made a judgment that is value-laden and based on a particular worldview that many disagree with.
By doing so, it has unarguably exercised a political choice. If it is legitimate for the Court to make such a choice, it is even more legitimate for citizens to ask: who will judge our judges? It is high time the Supreme Court reaps what it sows.
(Arghya Sengupta is founder and research director of the Vidhi Centre for Legal Policy, a New Delhi-based legal think-tank)
In upholding the constitutionality of Section 377 of the IPC the Supreme Court has made a judgment that is value-laden, based on a particular worldview that many disagree with
Going against the tide of history
Siddharth Dube writes of his experience of being gay in India, of how the country is now more accommodative of differences in sexual orientation than it was three decades ago, and why the Supreme Court judgment on Section 377 came as a major disappointment
Had the Supreme Court’s ruling reinstating Section 377 been delivered in 1986, the year I moved back to India after completing graduate studies in the United States, I would not have been surprised at all.
In that era, a quarter-century ago, as a 25-year-old trying nervously to make my way as a gay man, I had witnessed little else but homophobia. For gay men or women there were virtually no safe places in the world — where we were not criminalised, where we could live without fear, where we could hope to lead ordinary, full lives.
Even America was no haven. Just some months before I relocated, the U.S. Supreme Court ruled that sodomy laws were not unconstitutional — as a consequence, homosexuality remained a criminal offence in much of the U.S. until the court finally overturned that ruling in 2003.
My father had urged me not to return to India, apprehensive that my characteristic candour, including about my orientation in matters of the heart and desire, would lead to my being persecuted for being gay. I didn’t take his advice. I was aching to work back in my own country, on the issues of poverty and social justice, about which I felt passionately. And I thought I was aware of the difficulties I was likely to face.
But within months of moving to Delhi, I realised that my calculus had been naively optimistic. There was no escaping the burdens of secrecy and fear that came with being gay in India in that era, even for privileged gay men and women. The overwhelming majority desperately hid their orientation from almost everyone. Only the luckiest ones had been able to safely confide in close friends and relatives. Many had married despite being gay, in a desperate effort to keep their orientation from becoming known. The threat of exposure, blackmail and abuse by the police or thugs was an everyday reality because most gay men had no place to meet each other, or to have sex, beyond public parks and toilets, this being many years before gay groups and gay-friendly bars emerged in India. Over everything loomed the fear of being persecuted under Section 377 of the Indian Penal Code.
It was no doubt because of the constant stress that so few people were in relationships. And given the risks of being openly gay, there were still no prominent, outspoken gay Indians. Most of us did such a good job of hiding ourselves that we truly were invisible, individually and as a group. “The country’s most silent and secretive minority” was how we were described in a 1988 newspaper article.
I coped because I was young, because I loved my work, and because by a great stroke of luck I met a wonderful man with whom I began my first relationship. But once we began to live together in a rented flat in Jor Bagh, rather than at my family home, these myriad apprehensions intensified into a constant low-level fear, much like a chronic fever. My fear was always just this: Whether kissing, having sex, or just sleeping cuddled together, we were violating IPC Section 377 — even though we were in the privacy of our flat — and we could possibly be arrested and jailed as a consequence.
And then, less than a year after we had begun to live together, I found that my apprehensions were not misplaced. One night late in 1988, my boyfriend and I were arrested by the officer heading the Jor Bagh police station. The officer had called me earlier that day at my office at The Washington Post ’s South Asia Bureau, saying he had received some complaints and I should come by the police station. I had foolishly agreed, assuming that as an accredited foreign correspondent I could handle whatever problems emerged. But within seconds of entering his office I realised I had made a terrible mistake. The officer looked at me with such loathing that I momentarily thought he must have mistaken me for someone else. He then erupted, the words burning themselves into my memory: “Mr. Dube, I know all about you. I have enough complaints about you. You are a homo! You have naked men dancing at your house, exposing themselves. Go back to America! You think you can live here but you’re wrong. If you want to live here, you will live as an Indian, not like an American!”
Breaking point
The most hellish hours of my life followed. My boyfriend and I were held under armed guard in one of the station’s offices. I was not allowed to use the station phone to call anyone. Most terrifyingly, my boyfriend, who was dependent on insulin to keep his diabetes in check, was not allowed to return to our nearby home to have the injection that he needed by early evening.
Hour after hour passed. My beloved boyfriend was increasingly in physical distress. But even so, the officer refused my entreaties to let him have his injection and return. Finally, close to midnight, by which time my boyfriend had passed out on the bench, he was taken to our flat under police escort. A phone call to my family had me freed within minutes.
That night was the breaking point. I resolved that my boyfriend and I had to leave India. I was sick of feeling fearful every day just because I lived with him, tired of feeling that I was a criminal for being gay. I knew that the only reason that things hadn’t ended disastrously at the police station was because the homophobic officer had held back because of my social status. From all that I had seen in my years back in India, I knew that if I had been just an average gay man, my boyfriend and I would probably have been beaten, raped, and then blackmailed, our lives ruined, with no scope for recourse because under the law we were criminals.
We left India as soon as we could. From then on, I returned for extended periods only to do field research for my books — I had no plans to stay and I left as soon as my work was completed.
It was nearly two decades later, in 2006, by which time I was middle-aged, that my fears about living in India finally ended. My friend Vikram Seth and I began an Open Letter campaign in support of theNaz India Foundation ’s challenge to Section 377, which had languished for half a decade in the Delhi High Court. When the signatures of support poured in, I realised that the India of 2006 was not the India I had encountered in 1986. Then, I had feared that no one barring my family and close friends would help if I were persecuted.
Affirmations of support
But here were countless affirmations of support from eminent Indians from every walk of life — Swami Agnivesh, the legendary freedom fighter Captain Lakshmi Sehgal, former Attorney-General Soli Sorabjee, former chief of the Navy Admiral Ram Tahiliani, Doon School headmaster Kanti Bajpai, Planning Commission member Sayeeda Hameed, and stellar civil servants John Dayal, N.C. Saxena and J.B. D’Souza.
Amartya Sen joined us with a supporting Open Letter. He wrote: “It is surprising that Independent India has not yet been able to rescind the colonial era monstrosity in the shape of Section 377, dating from 1861… Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalisation.”
The Open Letters marked a turning point in my fears about India — I knew I could return there as an openly gay man as India had changed so much, that I and other gay people now had a legion allies and defenders, right-minded people who understood that our cause was a basic human rights concern for equality and fair treatment.
The following year, I moved back to India. It was indeed an astonishingly different place where gay issues were concerned. The killing invisibility of the past had ended — the invisibility which meant both that we were too stigmatised to even be mentioned in the press or in society, as well as too fearful to draw public attention to ourselves. There were gay support groups and openly gay men and women, not just in the metropoles but in smaller towns too. Gay issues were discussed seriously in literature and the news.
Most astonishingly, I soon came to conclude that there was a remarkable level of acceptance of same-sex love amongst average Indians, far more than in sharply polarised America. Almost no one I met socially — even in small-town Nilgiris where I settled — or interviewed for a forthcoming book on sex work and homosexuality, expressed any homophobia. I was finding that the traditional tolerance and acceptance that Ruth Vanita, Saleem Kidwai and other scholars of Indian culture had pointed to was indeed true for many Indians. My orientation was inconsequential and irrelevant to them, rightly so.
And then, on the morning of July 2, 2009, what I and countless other gay Indians had yearned and fought for became reality: Justices Shah and Muralidhar of the Delhi High Court ruled that “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14, and 15 of the Constitution.” They wrote: “The criminalisation of homosexuality condemns in perpetuity a sizeable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery…. This vast majority... is denied moral full citizenship.’"
Free at last...
I was free at last. I was no longer presumptively a criminal in my own country.
The source of my sharpest and most-abiding adult fears had been destroyed with this wonderful judgment. I was proud to be Indian. I was happy to be living in India. I even began to dream that one day soon I would have equal rights to other Indians, the trajectory in so many other societies by now.
My beloved father, ailing from cancer, told me he could pass away peacefully now that he knew he no longer had to fear for me because of this hateful law, as he had when I first returned to India a quarter century earlier.
So for me, the Supreme Court’s ruling is not just baffling, it is a tragedy of epic proportions. Welcomed only by irrational conservatives and the lunatic fringe, it goes against everything that so many Indians, whatever their personal orientation, have fought for over the past several decades. It goes against the wonderful quality of acceptance that is indisputably part of our cultural fabric.
It goes against the tide of recent history. It goes against every measure of justice. It must be reversed. It will be reversed. This is India after all, not Putin’s Russia or the Ayatollahs’ Iran.
(A senior fellow at the World Policy Institute, Siddharth Dube is the author of books on poverty and public health)
I knew I could return there as an openly gay man without my intense fears of the past, as India had changed so much that I and other gay people now had a legion allies and defenders, right-minded people who understood that our cause was a basic human rights concern for equality and fair treatment
Welcomed only by irrational conservatives and the lunatic fringe, the Supreme Court judgment goes against everything that so many Indians, whatever their personal orientation, have fought for over the past several decades. It goes against the wonderful quality of acceptance that is indisputably part of our cultural fabric
The Afghan challenge ahead
President Hamid Karzai’s visit to India, possibly his last before elections scheduled for April 2014, marks a critical moment in the development of the relationship between India and the new Afghanistan born amid the bloodshed of 9/11. India has been a partner in the process, but Mr. Karzai came asking how much more it might be willing to do. In the spring, the International Security Assistance Force which has provided the backbone of the state since 2001 will begin to return home. Although there are substantial international aid commitments in place, Mr. Karzai has been seeking a reassurance that the country’s most trusted partners will stand by it if things go wrong. He received some comfort from Prime Minister Manmohan Singh. Following more than a year of deliberation, India has finally committed to providing Afghanistan with the military assistance it seeks under the Strategic Partnership Agreement binding the two allies. The assistance will, for now, be modest. Indian-made light helicopters will join Afghanistan’s fledgling air fleet, while its army will receive transport and logistics equipment. This comes on top of a substantial programme of civilian assistance. Indian engineers have, despite credible Taliban threats, brought the Salma hydro-electric dam near Herat to within a year of completion. Indian experts have been involved in setting up an agricultural university at Kandahar, which Afghans hope will prove an incubator to rebuild livelihoods across the troubled south. India provides over a thousand scholarships every year to Afghan university students, and is building its new Parliament building. Preliminary plans exist for iron ore mining at Hajigak.
India’s investments, measured against overall international aid, are not huge. However, the reservoir of goodwill the assistance has generated is illustrated by the fact that all the competing presidential candidates in 2014 are vocal in their support for a deeper relationship. The reasons are rooted in history. Before 9/11, India, along with Iran and Russia, was at the heart of the small coalition of states which nurtured the struggle against the Pakistan-backed Taliban and al-Qaeda. India provided aid to the resistance. . India has clear interests in helping build a democratic Afghanistan. The alternative is the empowerment of jihadist organisations which threaten peace and stability in the region. For a decade now, India’s low-key partnership has piggy-backed on the western presence in Afghanistan. The day may not be far, though, when India, with others, finds itself called on to do more. New Delhi must start considering the challenges that lie ahead.
A troubling practice
Nationalistic outrage aside, the arrest of an Indian diplomat in New York for giving false information to obtain a visa for her domestic worker, and paying her less than the local minimum wage, has shone well-deserved light on a troubling practice that many Indians unfortunately think is normal. Devyani Khobragade is not the first Foreign Service officer caught on the wrong end of the law in the host country on charges relating to treatment of a domestic employee. The human aspect of the controversy and the seriousness of the visa fraud charge are at times lost through the shift of focus to technical and procedural issues, relevant as they are. While it is for the courts to pronounce on Ms. Khobragade’s conduct, there is no moral high ground to be claimed on this issue. It is well known that exploitative practices against domestic workers are rampant in India. With unskilled labour plentiful, and domestic labour comprising the lowest section in this category, there is no minimum or maximum age of employment, no fixed work hours, and certainly no minimum wage. Indians posted abroad are loathe to hire locals to do household work, especially in the West, as minimum wages are fixed, and translate into much more than what they would pay back home; the terms and conditions of employment too are not malleable, with specified holiday and leave requirements. Uncaring about violating local laws, they end up taking “the help” with them on Indian wages, sometimes even showing her as a member of the family for visa purposes. Ms. Khobragade was only hewing close to type, going by the charges against her, even though as a senior government official, she should have known better. The Ministry of External Affairs should put an end to the practice of its officials taking domestic staff with them abroad.
As a consular official, Ms. Khobragade does not have the same extent of immunity under the Vienna conventions as a diplomat in an embassy. In the United States, consular officials can be arrested for a serious crime on the basis of a warrant. It is of course debatable if the offence she is charged with falls in the category of felony, particularly as she was released on bail within a few hours. The dramatic manner of the arrest, which included handcuffing, is unusual treatment for any person, even if one were to disregard her consular status. Also, there is nothing to suggest she was about to flee the country. Sensibly, New Delhi made no claim of immunity for the official. While standing in solidarity with the official against the manner of her arrest, the government has also rightly made it clear that she will be available for the court proceedings against her.
The dilemmas of sting journalism
There are queries as to why the coverage in The Hindu of sting operations by activist media was on a low-key. The questions pertain to some of the recent expose that include Amit Shah’s illegal surveillance, IT companies creating fake following and manipulating the social media, and Members of Parliament writing letters of recommendation for a fee.
The answer lies in the very nature of sting journalism. It operates in a number of grey areas, and its authenticity cannot be verified independently. The act of verification and crosschecking is central to ethical journalistic practices.
Lord Justice Leveson in his ‘An inquiry into the culture, practices and ethics of the press’ frequently uses the term “journalistic dark arts” to some of the methods the British tabloid press deploys to secure information. He takes a serious exception to giving money to public servants to secure information. Citing the British law, the Bribery Act 2010, he contends that “the making of payment for information for stories is clearly illegal as a matter of criminal law” and that “there is no defence based on actual or perceived public interest.”
Leveson also finds fault with the blanket usage of the term ‘investigative journalism’. He writes: “Most substantial use of subterfuge and deceit is generally the preserve of investigative journalism, that is to say, when subterfuge and deceit are used the press generally term the result ‘investigative journalism’, regardless of whether that label is strictly merited”.
Apart from the ethics and accepted norms, I also feel that this technique exposes only the gullible, who are not at the top of the political pyramid.
The ethical quagmire
Does The Hindu prohibit its journalists from indulging in sting operations? How does it respond to stories emanating from sting? Is there a written policy to deal with this increasing practice that has consumed a section of the media? Acknowledging the moral dilemma and the ethical quagmire posed by sting journalism, Editor-in-Chief N. Ravi explained three issues that influence the editorial judgment of this newspaper.
First is the difficulty in verifying the authenticity and factual accuracy of material gathered by an editorial process of which the paper has little knowledge, much less any control. Second, in his view, sting operations involving some deception could be used only when justified by an overwhelming public interest involving such questions as prevention of crime, some grave risk to the public, preventing people from being misled by public personalities, and so on. Thirdly, he felt that the drastic lengths to which one can go in conducting a sting operation — some forms of enticement including payments of money and dubious hospitality — would seem to vitiate the operation. He said: “For instance, waving money in someone’s face to test his integrity is to be seen as entrapment, and there are specific guidelines even in the case of traps set by law enforcement agencies in the case of corruption — they can only become part of an existing tendency to corrupt practices, they cannot initiate one where it does not exist.”
While the newspaper is wary of publishing the findings of any sting operation as conclusive proof of wrongdoing, when they become a matter of public debate in which the persons charged with wrongdoing and others also participate, it does not refrain from reporting it as a controversy.
As far as The Hindu is concerned, the Editor-in-Chief was categorical: “we ourselves do not resort to sting operations, and our journalists go about seeking information, openly, revealing their identities.”
In his media column, Sashi Kumar, Chairman of Asian College of Journalism, wrote: “It may appear to be a matter of professional propriety or social grace for one newspaper or television channel not to comment adversely on the performance of another. But for a calling whose lodestar is the public interest and where even not so legit means like the hidden recorder or camera or other intrusive methods of ‘sting’ journalism are absolved or pass muster in the name of the larger public good, this pretence of not noticing the sins of omission and commission in its own ranks smacks of hypocrisy.” The conscious decision of The Hindu regarding sting journalism makes it an exception.
Leveson has forcefully argued that paying for information is essentially unethical. “First, the source may require payment for the very reason that he or she has obtained the information in question by illegal, unethical or otherwise dubious means, and the payment is, at it were, the price for taking the risk. Second, the fact that a source apparently required payment for supplying the information in question may well be an incentive for exaggeration and embellishment. Third, the offering of money for stories may well encourage members of the public to engage in intrusive methods in circumstances where there is no clear public interest.”
Sting journalism can never aspire to occupy the high moral ground that a rigorous investigation could achieve and deliver for genuine public interest.
NSA may leave spying programmes unchanged
A participant in a White House–sponsored review of surveillance activities described as “shameful” an apparent decision to leave most of the National Security Agency’s controversial bulk spying intact.
Sascha Meinrath, director of the Open Technology Institute, said that the review panel he advised was at risk of missing an opportunity to restore confidence in U.S. surveillance practices.
“The review group was searching for ways to make the most modest pivot necessary to continue business as usual,” Ms. Meinrath said.
Headed by the CIA’s former deputy director Michael Morrell, the review is expected to deliver its report to the United States President, the White House confirmed, although it is less clear when and how substantially its report will be available to the public.
National Security Council spokeswoman Caitlin Hayden said she would have no further comment “on a report that is not yet final and hasn’t yet been submitted to the White House”. Should the review group’s report resemble descriptions of it that leaked, the report “does nothing to alter the lack of trust the global populace has for what the U.S. is doing, and nothing to restore our reputation as an ethical internet steward,” said Ms. Meinrath, who met with the advisory panel and White House officials twice to discuss the bulk surveillance programmes that have sparked international outrage.
Leaks about the review group’s expected recommendations to the New York Times and Wall Street Journal strengthened the long-standing suspicions held by Ms. Meinrath and other participants that much of the NSA’s sweeping spy powers would survive. The New York Times quoted an anonymous official familiar with the group saying its report “says we can’t dismantle these programmes, but we need to change the way almost all of them operate”.
According to the leaks, the review group will recommend that bulk collection of every American’s phone call data continue with tighter restrictions than the “reasonable, articulable suspicion” standard for searching through them that the NSA currently employs. Less clear is whether the review will recommend removing authorities the NSA possesses to allow searches for Americans’ identifying information in its vast data bases of foreign communications content.
The leaks suggested that the review group would do less to restrain the bulk spying on foreign nationals, which is a more traditional NSA activity, although the Wall Street Journal referred to additional privacy safeguards. For surveillance of foreign leaders, the group looks likely to recommend that such spying be personally approved by the President or White House officials.
The report also embraces the idea of allowing a privacy advocate to contest government collection requests before the Fisa court. — © Guardian Newspapers Limited, 2013
