Source: “THE HINDU Editorials 25-08-2017”:-
Paper II: Indian Constitution – Features, Amendments and significant provisions
Citizen Vs State
- In a rare unanimous verdict pronounced by nine judges, the Supreme Court has ruled that privacy is fundamental right that requires constitutional protection.
Right To Privacy:
- Privacy was always known to be a common law right.
- Occasionally, it was recognized in some verdicts as fundamental right.
- The Supreme Court has established that the right to be left alone is an inalienable part of being human.
- This stand of the court, nullified the perverse argument by the Union government in the course of the hearings on the validity of its Aadhaar based unique identity scheme that privacy is not a fundamental right.
State’s flawed argument:
- The above argument also shows how the state ignored the constitutional underpinnings of privacy as a value in itself and as an ineluctable facet of human dignity.
- There was even a suggestion that privacy is an imported value and that it is elitist.
- It has established that some rights are natural and inherent.
- It is only the constitution which recognizes them and makes them explicit.
Implications of the ruling:
- The ruling would have on state policy and citizens’ rights will be the core issues in future.
- The verdict makes it clear that sexual orientation is part of privacy and constitutionally protected.
- This effectively nullifies the 2014 verdict upholding Section 377 of the Indian Penal Code.
- Regarding Aadhar, judges have referred to the restrictions and limitations that privacy would be subject to.
Limitations of Privacy:
- The validity of any such restriction is that it is reasonable and based on fair procedure.
- It can also be based on compelling state interest.
- The relief they grant based on wide and open-ended claims of breach of privacy, should be carefully handled.
- The verdict has advanced and revivified core constitutional principles.
- The needs of a knowledge society and even socio-economic policy free from biases bringing about an equitable relationship between citizens and state.
Paper I: Salient Features of Indian Society
Caste and Class
- That reservation in jobs and education did address socio-economic disparities in India to some degree is true.
- But the benefits of reservation have not been distributed equitably.
- A large segments of the weaker sections and backward classes continue to have no access to quality education or meaningful employment.
- The relatively rich and dominant sections among the backward castes have tended to take up a disproportionately larger share of the reservation pie.
The concept of Creamy Layer:
- The concept of ‘creamy layer’ to isolate the well-offamong those eligible for reservation was perceived as an attempt to limit the benefits of reservation.
- The creamy layer politically divide the beneficiaries of reservation.
But, properly implemented, it could have had the effect of allowing a more equitable spread of the benefits of reservation.
- The Union Cabinet’s decision to set up a commission to examine the issue of sub-categorization of the Other Backward Classes speaks a great truth.
- The long years of failure in effectively preventing large sections of the creamy layer from taking advantage of the quota system to the detriment of the poorer sections among their own caste groups.
- The central government is now ensuring a more equitable distribution of reservation benefits.
- This it does by further differentiating caste groups coming under backward classes on the basis of their levels of social and economic backwardness.
- The sub-categorization came on the same day they decided to raise the ceiling for deciding who remains outside the creamy layer.
- This is at cross purposes with the move toward sub-categorization.
Vote-bank politics has a lot to do with the prioritizing of caste-based categorization over income-based differentiation.
- Political mobilization on the basis of caste is far easier than on the basis of income.
How do the numbers compute
Paper I: Role of Women and Women’s organization
- Making sense of the Supreme Court’s split verdict on triple talaq.
- Triple talaq was an element of statutory law — the Muslim Personal Law (Shariat) Application Act, 1937 and, being arbitrary, was unconstitutional.
- They did not answer thequestion of whether religious personal laws were immune from constitutional scrutiny under Article 25.
- The Shariat Act of 1937 contained no reference to triple talaq and merely declared that the Shariat would be applicable uniformly to all Muslims in India.
- Before the passage of this Act, Hindu inheritance laws were applied to certain Muslim communities.This had a particularly pernicious effect on the rights of Muslim women.
- In a second judgement, the practice of triple talaq, being a component of personal law, was protected by Article 25 of the Constitution and could not be interfered with by the court.
- The third and the deciding judgement held that holds triple talaq to be inoperative not because it violates fundamental rights, but because it is, on his reading, “Anti-Quran” and hence violative of the Shariat.
- It is clear that three judges of the ShayaraBano v. Union of India case did not come to the determination that triple talaqis gender discriminatory and hence unconstitutional.
Judges of the Supreme Court ought to be held accountable to high standards in their task of clarifying the law.
Endgame for Section 377
- In a unanimous verdict, a nine-judge Constitution Bench of the Supreme Court on Thursday declared that privacy is intrinsic to life and liberty and an inherent part of the fundamental rights enshrined in the Constitution.
- The nine judge bench also observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.”
The decision on Triple Talaq:
- It was not too long ago that guillotine has fallen on the right of men to unilateral divorce by mere pronouncement in one go.
- But none of the judges came to the conclusion of the unconstitutionality of triple talaq via the path of equal rights.
- Rulings by the Supreme Court can have significant spread effects.
- Even when rulings in one case may not directly impact those in other areas, they have the potential to change behavior across society.
- The activists see the ruling against triple talaq as generally empowering women among India’s Muslims.
- Similarly, the ruling that has closely followed it in time, namely the one upholding privacy as a fundamental right of the citizen under the Constitution, is believed to have major implications for the lives of Indians.
- It stalls the incipient rise of the surveillance state.
- But it also has the potential to impact the Indian state’s regulation of sexual relations.
- The ruling has a bearing on the constitutional validity of Section 377 of the Indian Penal Code (IPC) which criminalises acts “against the order of nature”.
- This immediately devalues by association the homosexual condition.
The Religious Angle:
- All religions drawing upon West Asian culture have strictures against homosexuality.
But it was theWest that justified sexual persecution on aesthetic grounds.
- For instance, UnderHitler homosexuals were to be exterminated so that Germany would be populated by the perfect race.
- But the Christian West that has taken the lead in reversing the historical prejudice against homosexuality.
- And that members of its political class have played a leading role in this.
- The Supreme Court’s ruling on the primacy of privacy laws, has implications for Section 377 as no longer can sex acts in private be overseen by law.
- Hence it is not an argument that is made by activists for gay rights.
Premising Gay Rights on the Right To Equality:
- Hence, the argument against Section 377 not to be based on the right to privacy but to be premised instead on the idea of the right to equality before the law.
Privacy is of paramount importance but in itself it cannot be the clinching argument in the context.
- Do individuals have the right to violence in the privacy of their homes?
We are unlikely to agree with his right to domestic violence. He has no right to subjugate his spouse through violence, not even in the privacy of his home.
- What the Indian law as it stands does is to violate the right to non-discriminatory treatment of the LGBT community who invariably reject this position.
- So are we witnessing the endgame of Section 377?
- The Supreme Court judges and the positions they had taken in the Triple Talaq verdict is not encouraging.
- The NALSA judgment of 2014 is a landmark one in that it upheld the right to choose one’s sexual orientation.
- However, it did not go far enough to call for a repeal of Section 377.
- The political parties sloganeer that they are together with everyone for everyone’s progress!
- But they leave the voiceless always behind.
- If the Kinsey report on sexuality based on the United States experience is to be taken as a benchmark, we would have to heed its finding that around 10% of men are homosexual.
- Among India’s political parties, the CPI(M) alone has frontally sought repeal of Section 377.
The way ahead:
- The LGBT movement of India is here to stay.
- Chances are that in a city near you preparations are on right now for the next annual ‘Pride’ march.
- It would be a party with a difference as all parties are welcomed. You could even walk your talk.