Skip to main content

A lost opportunity

There are occasions when the finality of a judicial verdict is in unfortunate conflict with the interests of justice. The contentious case of Section 377 of the Indian Penal Code is one such. By declining to
review its retrograde decision to uphold the validity of Section 377, the Supreme Court has lost an opportunity to revisit a verdict that has drawn widespread criticism for failing to extend constitutional protection to sexual minorities. While it is true that the scope for review is limited, there was some hope for the LGBT community when the Union government came forward to seek a review of the December 2013 verdict in Suresh Kumar Koushal . Many jurists, activists and political leaders felt the ruling overturned a well-reasoned judgment of the Delhi High Court, which had read down Section 377 to de-criminalise consensual sex among adults irrespective of gender. It was seen as incongruous with the mores of our times. The verdict required a review on merits because of some intriguing conclusions. The Bench had ruled that “those indulging in carnal intercourse against the order of nature” constituted a different class, and that Parliament could treat the category differently from others. It had failed to see that ‘order of nature’ is itself an artificial construct rooted in the outdated view that alternative sexuality is unnatural. It had dismissed the LGBT community as a minuscule fraction of the population, as though the relative smallness of a group disentitled it to constitutional protection.
While holding that Section 377 suffered from no infirmity, the Bench had said it was open to the legislature to delete or amend it. The verdict had cast a shadow of doubt on the judiciary’s decisiveness in enforcing fundamental rights. In a recent case concerning death row convicts and mercy petitions, it was reaffirmed that the Supreme Court was best equipped to adjudicate the content of fundamental rights. “This Court has always granted relief for violation of fundamental rights and has never remanded the matter,” it said. The Bench that declined to review the verdict could have taken inspiration from these words and examined afresh the section’s chilling effect on fundamental rights, instead of leaving it to the legislature. A curative petition could provide one more avenue of redress, but its scope is limited to judgments passed in violation of principles of natural justice or in circumstances suggesting bias on the part of the court. The situation is ripe for a legislative solution, but the process may not be easy, for not all members and parties will be able to resist the influence of religious conservative groups that are likely to oppose any amendment.


Popular posts from this blog

Khar’s experimentation with Himalayan nettle brings recognition (downtoearth)

Nature never fails to surprise us. In many parts of the world, natural resources are the only source of livelihood opportunities available to people. They can be in the form of wild shrubs like Daphne papyracea and Daphne bholua (paper plant) that are used to make paper or Gossypium spp (cotton) that forms the backbone of the textile industry.

Nothing can compete with the dynamism of biological resources. Recently, Girardinia diversifolia (Himalayan nettle), a fibre-yielding plant, has become an important livelihood option for people living in the remote mountainous villages of the Hindu Kush Himalaya.

There is a community in Khar, a hamlet in Darchula district in far-western Nepal, which produces fabrics from Himalayan nettle. The fabric and the things made from it are sold in local as well as national and international markets as high-end products.

A Himalayan nettle value chain development initiative implemented by the Kailash Sacred Landscape Conservation and Development Initiati…

SC asks Centre to strike a balance on Rohingya issue (.hindu)

Supreme Court orally indicates that the government should not deport Rohingya “now” as the Centre prevails over it to not record any such views in its formal order, citing “international ramifications”.

The Supreme Court on Friday came close to ordering the government not to deport the Rohingya.

It finally settled on merely observing that a balance should be struck between humanitarian concern for the community and the country's national security and economic interests.

The court was hearing a bunch of petitions, one filed by persons within the Rohingya community, against a proposed move to deport over 40,000 Rohingya refugees. A three-judge Bench, led by Chief Justice of India Dipak Misra, began by orally indicating that the government should not deport Rohingya “now”, but the government prevailed on the court to not pass any formal order, citing “international ramifications”. With this, the status quo continues even though the court gave the community liberty to approach it in …

Cloud seeding

Demonstrating the function of the flare rack that carries silver iodide for cloud-seeding through an aircraft. 
Water is essential for life on the earth. Precipitation from the skies is the only source for it. India and the rest of Asia are dependent on the monsoons for rains. While the South West Monsoon is the main source for India as a whole, Tamil Nadu and coastal areas of South Andhra Pradesh get the benefit of the North East Monsoon, which is just a less dependable beat on the reversal of the South West Monsoon winds.