The Legislative Powers of the President of India

1. Legislative Powers-

The President is not a member of either House of the Parliament. But he is an integral part of the legislative process. He plays an important role in the making of laws. Lawmaking is not initiated by him. But he can significantly influence it.

(a) Summoning the House-

The President has the power to summon and prorogue the two Houses of Parliament. He has also the power to dissolve the Lok Sabha.

The President can summon joint sitting of both Houses of Parliament. If there are differences between the two Houses, he can ask them to sit together to resolve those differences.

(b) Addressing the Houses-

The President may address each House separately or he may address them jointly. When the first session of each is commences, or when the Lok Sabha meets after a General Election, the President addresses the joint-sitting of both Houses. Besides this, he can also address each House or their joint sitting any time.

(c) Sending Message-

The President has the power to send messages to either House of Parliament either regarding any pending bill or any other matter. It may, however, be noted that the President so far has not sent any message either to the Lok Sabha or to the Rajya Sabha.

(d) Nomination-

The President nominates 12 members to the Rajya Sabha from among those who are eminently known in the fields of Literature, Science, Art or Social Services. He also nominates two members to the Lok Sabha from the Anglo-Indian community, if it is not properly represented in that House.

(e) Giving Assent to the Bill-

No bill passed by the Parliament can become a law without the assent of the President. There are certain bills which cannot be introduced in the Parliament without the permission of the President. Similarly, without his prior permission, some specified bills cannot be introduced in state legislatures. For example, such bills which seek to redistribute territory of states or alter their names, boundaries or areas, cannot be introduced in the Parliament without the prior consent of the President.

For introducing Money Bills in the Parliament, the prior authorization of the President is required. A bill aiming at imposing certain restrictions on the freedom of trade, commerce or intercourse within the state cannot be introduced within the state legislature if the prior authorization of the President has not been obtained.

A bill duly passed by the Parliament is sent to the President for his assent. It becomes an Act when the President gives his assent to it. The President may send back a bill to the Parliament for reconsideration. But if the bill, after such reconsideration, is again presented to him for his assent, he is bound to give assent to it.

He has also the power to withhold assent from a bill. But when a Money Bill, being duly passed by the Parliament comes to him, he cannot return it for reconsideration. It is obligatory on his part to give assent to a Money bill because it is introduced in the Lok Sabha with his prior sanction.

There is no time-limit regarding the presidential assent to the bills passed by the Parliament. The constitution simply says that if the President wants to return a bill for reconsideration, he has Jo do it 'as soon as possible.' How long or short a period this phrase, 'as soon as possible' implies is not clear. A President may defeat the purpose of a bill by just remaining silent a state Governor has the discretion to reserve a bill for the assent of the President.

When a bill, passed by the state legislature, is sent to the Governor for his assent, he may send it to the President for his consideration. The President may give assent to such a bill, may withhold his assent from it or he may return it for reconsideration. When, after reconsideration, the bill is again presented to the President, he is not bound to give assent to it. He may give his assent to the bill or he may veto it. Further, there is no time limit regarding the presidential assent to a state bill when it first comes to him.

The constitution has not fixed any time limit regarding it. When two different political parties are in power at the centre and in a state, the central government can create problems for the state by directing the Governor to reserve certain bills for presidential assent and by advising the President to remain silent about them or to veto them.

(f) Ordinance-

The President has the power to promulgate ordinance during the recess of Parliament. When the Parliament is not in session, the President can promulgate an ordinance to meet some exigency. When both Houses of Parliament are not in session, under Article 123, the President can promulgate an ordinance if he is satisfied that a situation has arisen which makes it necessary for him to take 'immediate action.' An ordinance has the same force as an Act of Parliament. It has to be approved by both Houses within 6 weeks of their reassembly.

Otherwise, it will cease to operate after the expiry of 6 weeks from the date of the reassembly of the Parliament. An ordinance is of temporary duration. It can be withdrawn by the President. It can also be revoked if it is disapproved by both Houses of Parliament by adopting resolutions to that effect.

The possibility of the President misusing his ordinance power cannot be ruled out. He may abuse this power in the interest of the party in power, because he normally acts on the advice of the Cabinet. But if somebody feels that the President has misused his ordinance power, he can challenge his action in the court of law. The ordinance power of President is not immune from scrutiny by the Court of Law.

(g) Regulation of Union Territories-

The President has the power to make regulations for the administration of Union Territories.

Breaching the Vienna Conventions

In the outrage over the arrest of Devyani Khobragade, we are perhaps not asking if the grounds the United States has given for this unusual step are morally or legally sustainable. The U.S. is right that Ms. Khobragade falsely stated when she applied for her domestic help’s visa that the woman would be paid over the minimum U.S. wage of $7.25 an hour. Every Indian diplomat in the U.S. has told the same lie, because none of them can afford to pay the local minimum wage when their own pay, even with the foreign allowance, is barely more than that. The U.S. government knows this, because the bank account of every Indian diplomat posted there, to which it has easy access, will make this plain. If it issues visas nevertheless, it is complicit in the lie.

The U.S. has a right to expect that no one brought there will be ill-treated. That forms the basis of its second charge, that because Ms. Khobragade did not pay her help the minimum U.S. wage, she treated the woman like a slave. Indians who agree, and believe the help is the real victim, perhaps do not know the facts.

Need and perception of need

The minimum wage in the U.S., as in India, is the government’s fanciful notion of what it costs to keep body and soul together, but civil society has long argued that it is woefully inadequate. Several U.S. non-governmental organisations make calculations for every city and county what the living wage should be, taking into account that the wage-earner must pay for food, housing, medical care, transportation and other essentials, including clothing. They hold that the minimum living wage in New York city for a single person is $12.75 an hour. For a single parent with two children, the dominant family pattern, it is $32.30, four times the official minimum wage.

This gap between actual need and the government’s perception of it translates into widespread poverty and hunger, particularly among the blacks and the Hispanics who form the bulk of the population that works at the minimum wage; they cannot live on it and therefore sink into debt. NGOs estimated that in 2012, 49 million Americans lived in food-insecure households. Households that had higher rates of food insecurity than the national average included households with children headed by single women (35.4 per cent), black households (24.6 per cent) and Hispanic households (23.3 per cent).

While the U.S. argues that anyone in New York paid less than the minimum U.S. wage is being ill-treated, what is in fact the case is that anyone who has to live only on that wage is — as the U.S. NGOs so vehemently argue — condemned to a life of poverty and hunger. Forbes pointed out in an article earlier this year that the unemployed who live on welfare get more in several States than those who work for minimum wages. In New York, Forbes calculated the annual take-home from welfare at $43,700 a year, or $21.01 an hour, almost three times the minimum wage.

It is important to remember this because a help employed by an Indian diplomat has none of the expenses that are assessed to compute either a minimum or a living wage. She stays in a room in the diplomat’s house, with her food, clothing, medical bills and transportation all paid for. Every dollar she earns is saved. If Sangeeta Richard was paid $500 a month, she was saving that a month. No one living on minimum wages in the U.S. has savings; most are up to their eyes in debt. Saving $500 a month for them is a pipe dream. The black and Hispanic women who work as domestic help and charwomen in the U.S., and form its underclass as the societal and lineal descendants of slave labour, would happily trade places with Sangeeta Richard.

Members of our civil society who argue that she was bonded labour, as defined in our Bonded Labour System (Abolition) Act, perhaps do not know the terms under which domestic help are employed by Indian diplomats. Neither that Act, nor any of the judgments of the Supreme Court which interpreted it, applies to them.

Convention and obligations

Those who claim that the Indian government has no interest in protecting domestic workers, and therefore is indifferent to Sangeeta Richard’s plight, ask why it has not ratified Convention 189 of the International Labour Organization (ILO) “Concerning Decent Work for Domestic Workers,” which came into force in September 2013. This is unfair because the government of India voted for the draft, and has since prepared a draft “Policy for Domestic Workers,” incorporating many of the provisions of the Unorganised Workers’ Social Security Act (UWSSA), 2008.

It is also not germane to this case because ILO Convention 189 would protect a domestic worker abroad only if the host government has ratified it. Like India, the U.S. government also voted for the Convention in 2011, but made a remarkably candid statement in explanation of vote: “In the case of the United States, a number of the provisions present complex issues with respect to our existing law in practice, including in regard to our federal system of government. Accordingly, we want to make clear that our vote to adopt this Convention entails no obligation by the United States to ratify it.”

Convention 189 offers all the protections that the U.S. claims Sangeeta Richard was denied. If these are already statutory requirements in the U.S., it is hard to understand why the convention presented it with “complex issues,” which had to be reconciled with its laws.

What is disturbing is that the U.S. “evacuated” the Richard family after issuing them “T-visas,” given to the next of kin of victims of human trafficking. This meant that, in its view, Sangeeta Richard was a victim of human trafficking as defined in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which supplements the United Nations Convention against Transnational Organized Crime (UNTOC).

The protocol defines “trafficking in persons” in detail. None of the conditions precedent applies to Sangeeta Richard, and a person travelling on an official passport of a democracy run by the rule of law by definition is not someone who is being trafficked. Moreover, when the Indian Embassy had asked the U.S. government to help trace her when she absconded, the T-visas in response make it clear that the U.S. considered the Indian government complicit in human trafficking.

It follows that the U.S. does not have the slightest intention of abiding by Article 8 of the Protocol, which sets out the terms under which a victim of trafficking is sent back to her country. In turn, this violates the assurance the U.S. gave when it ratified the protocol, to which it entered a reservation, but clarified that “this reservation does not affect in any respect the ability of the United States to provide international cooperation to other Parties as contemplated in the Protocol.”

Iran case

Instead, the U.S. claims that its laws were broken, and since a consular officer does not have the full immunity of an accredited diplomat, Ms. Khobragade was not immune from either arrest or subsequent prosecution. This, though, is not what the U.S. argued as the applicable international law when its diplomatic and consular staff were taken hostage in Iran in 1979, and the government in Tehran threatened to prosecute them for acts that were, in its view, crimes in Iranian law. The U.S. moved the International Court of Justice and in its submission, claimed inter alia that: “Pursuant to Articles 28, 31, 33, 34, 36 and 40 of the Vienna Convention on Consular Relations, the Government of lran is under an international legal obligation to the United States to ensure that … the consular personnel of the United States be treated with respect and protected from attack on their persons, freedom, and dignity; and that United States consular officers be free from arrest or detention. The Government of Iran has violated and is currently violating the foregoing obligations.”

The court ruled in favour of the U.S. on all points, by a large majority on most, but unanimously on the U.S. contention, examined at length in its judgment, that the Iranian threat to prosecute diplomatic and consular staff was a violation of the Vienna Conventions. The court held that: “no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness.”

The U.S. therefore does not really have a case, on either moral or legal grounds. What is surprising is that it was prepared to offend a country that is now of some strategic and commercial interest to it, and so blatantly breach the Vienna Conventions that protect its diplomatic and consular agents as much as they do all others. Except, it seems, in Iran in 1979 and in the U.S. in 2013.

(Satyabrata Pal, a former High Commissioner to Pakistan, is a Member of the National Human Rights Commission.)

Collective Parroting and Political Culture

Teacher education is said to be nationally important, yet it stays hidden from public view. Where it belongs in the system of education is also unclear. It is neither fully a part of higher education, nor is it fully owned by the state. It entails a history of low status and paucity of attempts to reform. Today, it ranks high on the list of sectors that have been corrupted by poorly regulated privatisation. Its problems got so messy that the Supreme Court had to appoint a commission to examine it. Chaired by Justice J.S. Verma, this commission submitted its report in 2012. The National Council for Teacher Education (NCTE) is currently deliberating on these recommendations for further action. If they are implemented with imagination — and not merely with bureaucratic fuss over details — they can bring about functional changes in the system and reduce the scope for corruption in it. But functional changes will not suffice to rejuvenate teacher education in India. The sector has been institutionally isolated for more than a hundred years. Its uncertain position between the university and the state has also caused chronic insularity and insecurity. It urgently needs academic nourishment and recognition as a sensitive and complex area of higher education.

In addition to its own malnourishment, teacher education in India is also afflicted by a larger crisis — the policy vacuum in education. Significant expansion and changes have taken place in the system of school education — especially at the elementary level — since the early 1990s. These processes have culminated in the promulgation of the Right to Education (RTE). A vast amount of hard work has gone into improving the design of curriculum and the infrastructure of schools. The fruits of this vast effort would go waste if the Centre and the State governments fail to change their perception of the relationship between different sectors and stages of education. Lack of leadership and relevant policies have caused widespread cynicism. The systemic and political consequences of sustained cynicism could be deadly. In the specific context of teacher-related issues, there are major causes for worry. One is the ongoing recruitment of more than a million teachers; the other is their training.

Training or education?
The term ‘training’ hides a long history of India’s system of education. Towards the second half of the 19th century, the British colonial government gradually established its control over education and shaped the system we have today. Following the practice prevailing at the time in England, ‘normal’ schools were set up to train teachers. An ‘ideal’ atmosphere was maintained at these training schools and trainees were expected to deliver ‘ideal’ lessons on the basis of pre-designed formats. The trainee’s dress, gestures and posture were supposed to follow a standardised pattern. That is why these institutions were called ‘normal’, i.e. norm-setting. As a result of the policies pushed by teacher unions and labour governments, teacher training eventually became a part of higher education. This integration meant that the curriculum was expanded to include theoretical knowledge drawn from philosophy, sociology, psychology and history.

The new courses, given at universities rather than at ‘normal’ colleges, aimed to impart rational autonomy to the future teacher. The term ‘training’ was replaced by ‘teacher education’ and focussed on building the teacher’s knowledge of the subject matter and of children. The new goal was to impart the capacity to take pedagogic decisions.

These developments eluded us. The hold of mechanical orientation stayed tight despite the liberal curriculum adopted by the Central Institute of Education (CIE), set up immediately after independence to give a fresh direction to the field. Another significant beginning was made by the NCERT, with the starting of four-year integrated courses at its regional institutes. However, these initiatives could not transform the essentially bureaucratic ethos of training institutions in the rest of the country. Primary teachers’ training stayed under the government’s control while secondary-level teacher education (B.Ed.) remained poorly integrated into the university system despite being affiliated to it. And nursery teachers’ training failed to get due recognition, so it was left to the mercy of market forces. Commercially-minded institutions mushroomed across the country and teacher education lost all semblance of public dignity.

Despite its statutory status, the NCTE could not control the rot. The scenario sank into chaos and corruption, compelling High Courts and, ultimately, the Supreme Court to intervene. The latter’s Justice Verma Commission (JVC) has given an elaborate critique and many recommendations. The NCTE will follow these recommendations but legal remedies can at best bring order into financial and administrative practices. Only the professional community representing the sector can restore its dignity and reorient the various courses toward the aim of personal and intellectual development of teachers. The NCTE will have to build professional consensus in a broken community.

Lack of practical experience

There are two sides to the problem teacher education faces. One has to do with the structure and substance of courses; the other pertains to the role of schools where trainees are sent to gain practical experience and exposure to school life. The course structure of most teacher education programmes is obsolete and devoid of theoretical depth. Some people say that teachers need no theory, and their training should be confined to skills and management. This view echoes the old ‘normal’ school ideology. It ignores the range of social and psychological challenges that teachers now face. The far-reaching social goals of RTE can hardly be addressed unless teachers grasp the insights embedded in contemporary social and psychological research and theory. The second aspect of the challenge involved in teacher education concerns the schools where trainees are sent. These schools need to feel responsible for the welfare and professional development of the new entrants to the profession. Letting them take the required number of classes merely serves a formal necessity. The initial exposure to school life must be mediated by opportunities to analyse the school’s own constraints. Noticing links between the theoretical knowledge acquired at the training institute and the experience gained at school is a basic necessity to make the course worthwhile.

At present, trainee teachers go to school with their own memory of school life guiding them to expect nothing new. They prepare written plans and teaching aids for the stipulated number of lessons. Their subject knowledge remains unrelated to the theoretical knowledge they are given in foundation courses. In the absence of any expectation that they will personally explore the meaning of being a teacher, they slip into age-old practices like posing simple questions that elicit a chorus recall of memorised facts.

Occasionally, a teacher will have an individual student raise their hand to answer, but chorus recitations remain the staple feature in a conventional classroom. The sound of children collectively parroting the teacher’s explanation has reassured generations of principals and inspectors that something is going on in the school. A classroom where children are engrossed in solving a problem individually or in small groups does not impress headmasters and visiting officers, no matter how many in-service courses have tried to tell them that this is what modern child-centric education is all about. The officials fail to see that habitual chorus answering at school has cast a long shadow on India’s political culture. By getting small children accustomed to spiritedly copying the teacher’s words, teachers undermine the democratic ideal of individual freedom and equality.

(Krishan Kumar : The writer is a professor at Delhi University and a former director of NCERT)

An abuse of immunity?

The arrest of Indian Deputy Consul-General Devyani Khobragade in New York and the alleged mistreatment she faced have resulted in a diplomatic row between India and the United States. The Indian stance, after initial assertions that she enjoyed “diplomatic status” and that she should not have been arrested, now appears to focus on the manner of her arrest and her subsequent treatment. The U.S. has sought to justify the arrest on the grounds that the proceedings do not relate to Ms. Khobragade’s official acts, and has asserted that it followed the “standard procedure” in relation to her treatment. On the diplomatic front, India is reported to have initiated some tough measures, including the removal of security barriers around the U.S. Embassy in Delhi.

Question of immunity
At the outset, it is important to draw a distinction between diplomatic agents of states and consular staff. While the 1961 Vienna Convention on Diplomatic Relations covers the privileges and immunities of diplomatic agents, the treatment that consular staff are entitled to is laid down in the 1963 Vienna Convention on Consular Relations. As the Deputy Consul-General at the Indian Consulate in New York, Ms. Khobragade was, at the time of her arrest, a member of consular staff, and not a diplomat.

Unlike the 1961 Convention, which vests diplomatic agents with absolute immunity from arrest, the 1963 Convention states that “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority” (Article 41(1)). Article 43 of the Convention goes on to vest consular officers with immunity from jurisdiction of the receiving State in respect of official acts.

It is evident that the allegations against Ms. Khobragade relate to her personal and not to her official acts. This means that she is not immune from the jurisdiction of U.S. courts in relation to this allegation. However, this in itself does not render the arrest legal. There may be situations where a country may have jurisdiction to try an offence, but an arrest would violate international law. An Indian domestic law analogy may be one where the police station has jurisdiction to investigate an alleged offence, a magistrate’s court may have the power to try the case, and yet an arrest may be illegal due to various reasons like the lack of a warrant where required, or arrest of a woman after sunset. Similarly, for Ms. Khobragade’s arrest to be legal, in addition to the U.S. possessing jurisdiction to try her for the offence, it needs to be established that the conditions laid out in Article 41(1) are satisfied: (i) that her arrest relates to a “grave offence” and (ii) her arrest was pursuant to a decision by a competent judicial authority.

The 1963 Convention does not define what qualifies as a “grave offence.” However, the rejection of an initial draft that suggested that arrest be restricted to offences that carry a maximum sentence of five years or more indicates that the Convention leaves it to each State to determine, under its own domestic law, whether an offence amounts to a “grave” one. The charges that have been levelled against Ms. Khobragade are categorised as felonies in U.S. law. This may be sufficient to meet the requirement of a “grave offence.”

As per the documents published in The Hindu, her arrest was pursuant to a warrant issued by Hon. Debra Freeman, United States Magistrate Judge for the southern District of New York, a judicial authority. Thus, both the requirements imposed by the 1963 Convention for the arrest appear to have been met.

Even if the arrest was legal, her treatment including handcuffing and a strip-search could amount to violations of Article 41(3) which requires that criminal proceedings against a consular officer be conducted “with the respect due to [her] by reason of [her] official position.”

In sum, the arrest itself appears to be legal. However, a challenge to the manner of the arrest and the subsequent treatment may be tenable.

Retaliatory measures
India has reportedly taken the following retaliatory measures: (i) removal of security barricades around the U.S. Embassy in New Delhi, (ii) withdrawal of airport passes and import privileges (iii) identity cards issued to U.S. diplomats to be turned in and (iv) refusal by several leaders including the Speaker of the Lok Sabha and the National Security Adviser to meet a visiting U.S. Congressional delegation. Some politicians have also suggested prosecution of same-sex partners of U.S. diplomats.

While some of these measures such as refusal to meet the delegation or withdrawing discretionary privileges are merely political in nature and are best left to the discretion of such politicians, other steps like reducing security measures at diplomatic premises and embassies may violate international law, specifically Article 22(2) of the 1961 Convention that imposes a special duty upon the host State (i.e., India) to take all appropriate steps to protect the premises of the mission against intrusion or damage, or disturbance of peace or impairment of its dignity.

Even presuming that the U.S. government is in breach of its international law obligations, it does not warrant retaliation by India, by means which breach international law. International law allows countermeasures (breach of international obligations in response to a breach by the targeted country) only as a last resort and in very narrowly defined circumstances. The only options available, that are viable in international law, are a withdrawal of discretionary privileges, declaration of certain members of the U.S. diplomatic and consular staff as persona non grata (which may be considered too drastic a step) or recalling of Indian consular staff and diplomatic agents posted in the U.S.

In terms of international dispute settlement, India has few, if any, legal options. Recourse to the International Court of Justice (ICJ), the only possible option, is not available in this case (unless the U.S. consents to the same), since the U.S. has not accepted the compulsory jurisdiction of the ICJ.

While the two countries attempt to iron out their differences through diplomatic and legal channels, Ms. Khobragade can, if she and the government of India so desire, avoid further encounters with the U.S. authorities by remaining in the Indian Embassy or the premises of the Permanent Mission of India to the U.N., which cannot be entered by U.S. authorities without authorisation from India.

Obligations of India and Indians
Notwithstanding the several privileges and immunities Indian diplomats and consular officers are entitled to, they have a corresponding duty under the 1961 Convention and the 1963 Convention, to respect the laws and regulations of the host State. Irrespective of how Ms. Khobragade was treated by U.S. authorities, we must not forget the original allegation that she is in violation of U.S. law.

This possible violation of host State law needs to be investigated by Indian authorities. It is imperative that India develop a framework to address misconduct of Indian officials abroad, who have been exempted from prosecution due to consular or diplomatic immunity. Though not an obligation under international law, such a step by India will go a long way as a goodwill diplomatic gesture. It will also ensure quick responses from other countries when pleading immunity on behalf of a national, since there would be an assurance that the offender would face legal consequences in one or other jurisdiction.

Also, India’s latest step of re-designating Ms. Khobragade as a diplomatic agent to the U.N., with a view to bring her under diplomatic immunity, may be viewed internationally as an abuse of the international legal process, given that Section 14 of the 1946 Convention on the Privileges and Immunities of the United Nations (which governs immunities of representatives of the Members to the U.N., since the 1961 Convention is silent on it) expressly states: “Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently, a Member not only has the right but is under a duty to waive the immunity of its representative in any case where the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.”

(Deepak Raju recently graduated with an LLM in international law from the University of Cambridge. E-mail: deepakelanthoor@gmail.com; Rukmini Das is a research fellow at Vidhi Centre for Legal Policy, New Delhi.E-mail:rukmini.das@vidhilegalpolicy.in)

The Legislative Court

In Koushal v Naz, a two-judge bench of the Supreme Court overturned a 2009 decision of the Delhi High Court decriminalising sodomy by Section 377 of the Indian Penal Code. In doing so, it has recriminalised every Indian who has ever had oral or anal sex (irrespective of the gender of the person they had it with, and irrespective of consent).

Koushal represents two structural failures of the Supreme Court, at least one of which has sometimes been commended as a great success by some commentators. The first structural failure is the near-total abandonment by the Supreme Court of the principle of separation of powers, and its transformation into a populist, legislative court of governance. The second failure, one that flows from the first one, is the court’s routine dereliction of its duty to give reasons for its decisions. Let me explain both of these failures in turn, and how they have facilitated the decision in Koushal.

Playing to the gallery

In Koushal, the court could barely conceal its disdain when it described lesbians, gays, bisexuals and transgendered people as “a minuscule fraction of the country’s population” with “so-called rights.” This may seem bizarre to those of us who believe that one of the primary functions of unelected constitutional courts is the protection of vulnerable minorities from majoritarian excesses. Clearly, a “minuscule” minority should be of particular concern to a counter-majoritarian institution.

The court’s position is easier to fathom if understood in the context of its history following the Emergency imposed by Indira Gandhi. During the Emergency, the court agreed to the suspension of Habeas Corpus, a fundamental right against the arbitrary detention of citizens by the state. After the Emergency, the court started to reinvent itself to gain institutional legitimacy. This reinvention was, however, not in terms of pitting itself against the representative organs of the state, but by competing with these organs. The process, which began in the 1980s, only intensified in the 1990s which saw an end to one-party-dominance in politics. Coalition politics and weak legislatures remain a feature of our politics to this day. The court, in the meantime, became a populist institution of governance — stepping in to fill the void left by an increasingly dysfunctional Parliament. In a country where the majority of the population suffers significant disadvantage, Majoritarianism can often become aligned with “progressive” politics. A majoritarian court continued to play to the gallery and wreaked havoc on the principle of separation of powers.

It should not surprise us that this majoritarian populist institution found it impossible to respect the “so-called” rights of a “minuscule” minority. Of course, our courts have sometimes stood up for minority rights. So has Parliament. What matters here is the self-image the court has been allowed to cultivate, which overwhelmingly determines its institutional course of action. This self-image is not that of a counter-majoritarian institution correcting the excesses of democracy, but one that is acutely conscious of the reception of its judgments by the people (such consciousness extends only to the outcome of a case, not its reasoning). Under this model, if representative bodies did a good job of representing the people, the courts would be unnecessary. The court is a political actor, which wants to be judged as politicians are judged. Its legitimacy rests on popular acceptance, not constitutional mandate.

This political context explains, rather than complicates, how the bench in Koushal suddenly discovers the joys of separation of powers. The court first extends the presumption of constitutionality to a pre-constitutional colonial law by suggesting that the democratic Parliament has “adopted” it by failing to amend it. It specifically mentions a 2013 legislation amending the law dealing with sexual assault as proof that “the legislature has chosen not to amend the law or revisit it,” ignoring completely the fact that there was no need for Parliament to do so after the Delhi High Court had read down Section 377 to exclude private sex between consenting adults from its ambit. That the 2013 legislation was enacted after the hearing in Koushal was concluded, thereby affording no opportunity to the parties to challenge its use by the court, is another matter.

This ostensible deference to democratic will is an opportunistic fig leaf of a populist court with little more than contempt for the representative institutions of democracy. In an act of concluding magnanimity to the legislature, the final sentence of the judgment grants it permission to consider the “desirability and propriety of deleting section 377.” The fact that it thought such a clarification was necessary tells us that this is not a court deferential to the legislature — this is a court with unhesitant pretensions of being the legislature.

Duty to give reasons

A key feature of adjudication is the public articulation of reasons after hearing principled submissions by the parties involved, on the basis of which a judge arrives at her decisions. In this respect, adjudication differs from voting, which allows a decision-maker to decide without having to articulate her reasons (or even without having any reason). The following factual inaccuracies, unsupported conclusions, and omissions in the judgment are particularly noteworthy in this regard:

a. The court records the government of India’s position on the case as one defending the criminal provision under review. This, despite the fact that the government had chosen not to appeal the High Court ruling, and its top lawyer — the Attorney General of India — had clearly told the bench that the government supported the High Court’s decriminalisation of adult consensual sex. Remarkably, the court describes the Attorney General as “amicus.” This suggestion in the judgment that the Attorney General was simply a friend of the court appearing in his personal capacity forced him to publicly clarify that he had very much represented the government’s official position in the case.

b. The court found itself able to ignore the voluminous material placed before it to conclude that there was no evidence to show that “homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.”

c. Long-standing precedent is clear that Article 14 (right to equality) of the Constitution requires every legal classification to be based on an intelligible differentia and have a rational nexus with a legitimate state objective. The court, while repulsing the Article 14 challenge, finds it sufficient to say that the classification between “ Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature” is intelligible. It wastes no ink trying to identify the state objective being pursued, or asking whether the measure has any nexus with that objective.

d. Even this half-hearted attempt to give reasons is not made when rejecting the Article 15 (right against discrimination) challenge. No reasons whatsoever are provided.

e. The way the court deals with the challenge under Article 21 (the Right to Life and Liberty) is even more curious. After devoting several paragraphs quoting established precedents on Article 21, the court makes no specific finding with respect to Article 21! After these block quotations, the court moves seamlessly to simply assert that the use of Section 377 to “perpetrate harassment, blackmail and torture” is “neither mandated by the section nor condoned by it.” How the preceding six paragraphs setting out the established doctrine under Article 21 help the Court reach this conclusion, and how this conclusion repels the Article 21 challenge, is anybody’s guess.

The hearing in the case concluded in March 2012, and the judgment was delivered in December 2013, the day before the senior judge on the bench was due to retire. A cavalier attitude to its duty to give reasoned judgments is not uncommon in the court’s jurisprudence. Although unfortunate, this is hardly surprising. The pressure of its workload also results in the constitutional requirement that any constitutional case involving a substantial question of law must be heard by at least five judges (Article 145) being routinely ignored (including in Koushal). Only 0.12 per cent of all cases disposed of by the court between 2005 and 2009 were decided by a bench of five judges or more.

Given such volume, what is surprising is the respectable number of cases where our judges do manage to give reasoned judgments. The fragmentation of the court into small benches deciding thousands of cases every year had led to a situation where even a conscientious judge would find it next to impossible to respect stare decisis, the duty of the court to apply previous decisions (i.e. precedents). For less conscientious judges, the opportunity to cherry-pick precedents is limitless.

Furthermore, the academy simply cannot keep up with the judicial assembly line. Academic criticism is the real check on judicial power in a democracy. In the Indian context, academics are forced to focus on the outcome of the cases alone — only a handful of cases (like Koushal) that really stand out receive proper academic attention.

The outrage that this judgment has inspired among politicians, activists and academics presents an opportunity to rethink the fundamental structural weaknesses of the Indian Supreme Court. Most of the recent debate on the reform of the court has focussed on changing the appointment system of judges (currently, the court appoints its own judges) and dealing with the lack of diversity in the judiciary. While who gets to be a judge is an important issue, unless these structural infirmities are addressed, even Herculean judges cannot change the situation very much. The court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must do less and do it well. It must stop voting and stick to adjudicating.

( Tarunabh Khaitan is the Hackney Fellow in Law, Wadham College, Oxford. )

Sec 377: Men fear being framed by Women

Oral And Anal Sex A Criminal Offence Under Law Upheld By SC

 • A twenty-something woman in the city, barely a year into her marriage, kept a record in her diary of the number of times she had anal and oral sex -- described by Victorian law-makers as being ‘against the order of nature.’ The diary filled up fast. She soon filed for divorce on grounds of cruelty but didn’t go into the details. This was about ten years ago. 

• Earlier this year, a fortysomething woman four years into an extra-marital relationship with a 60-year-old man filed a case against him alleging unnatural sex soon after her husband learnt about the relation. She claimed she had agreed to unnatural sex only under threat. 

    The first case ended in a divorce through mutual consent; the second landed the man, a resident of a Mumbai suburb, in jail. His bail plea has been rejected once already. 

    It’s not just gay sex that Section 377 of the Indian Penal Code criminalises. The Supreme Court’s unequivocal declaration that every consensual sexual act barring peno-vaginal intercourse forms a criminal offence under the section has sparked concerns even among heterosexual couples. The fear is greater among men because, although the section is genderneutral, it explains that ‘penetration’ is sufficient to constitute an offence. Thus, even oral sex would be punishable, even if it is consensual. 

    A senior criminal lawyer said the SC judgement penned by G S Singhvi upholding the constitutional validity of Section 377, along with a recent judgement of a constitution bench that the police have a mandatory duty to register a Frist Information Report (FIR) on receiving any information which discloses a cognisable offence, can result in the section being misused. 

    An offence can be registered against any person, including a woman involved in an act of unnatural sex. A complaint can be filed by anybody, and as can be seen in the Tarun Tejpal case, an FIR can be registered suo motu by the police based on ‘credible’ information coming from any source. 

    Lawyer Swapnil Kothari said, “Section 377 is an antiquated legislation capable of being abused by a girlfriend who has been cheated. She could file a criminal complaint against her unfaithful boyfriend saying he had anal sex, albeit consensual.”

    Psychiatrist Anjali Chhabria said, “It is common for couples to indulge in oral sex and be sexually experimental as long as they are comfortable with each other and there is no element of force.” 

    However, it is possible that police stations may now receive midnight calls with complaints of unnatural sex from women against husbands or boyfriends, she said. 

    Women earlier were “diffident” and did not like to disclose the different forms of sexual intercourse within their marriage, said family law advocate Mridula Kadam. 

    “They would be made to feel dirty and were not sure who to turn to or lacked courage to lodge a complaint, just as they would not report a rape,” she added.

( From Times of India )

Specious Arguments against Decriminalization of Homosexuality

  A number of Specious arguments have been advanced to argue against decriminalization of homosexuality.

• That it is unnatural. There’s a wealth of scientific evidence that suggests otherwise, and that it’s part of the genetic coding of a section of the population (please refer to our edition of December 13).

• That it is against ‘our culture’. Again not true, because our ancient texts and our art are replete with instances of homosexuality (see TOI of December 12 and 13). Fact is, the anti-gay law was enacted by our erstwhile colonial masters 153 years ago and reflected their Victorian values, not ours. (Even the British have long since discarded it, and have now cleared same-sex marriage.)

• That it is immoral. So, a man who is in multiple relationships with women would perhaps be considered “immoral”. But are his actions criminal? 

    Ultimately, that’s what it boils down to: Is it criminal? Even if, for the sake of argument, one were to consider the homophobic claim that homosexuality is “unnatural”, “immoral” and “against our culture” — none of which it is — the question we need to ask is, is it criminal? Does it hurt anyone, except the sensibilities of our self-appointed moral police? Does it threaten public peace and order? 

    It does not. 

    Justice A P Shah, in his judgment of 2009, cut to the heart of the debate when he placed “constitutional morality” above “public morality” even if it was the public morality of the “majority”. The Constitution guarantees its citizens liberty, equality and privacy — and Section 377 violates every one of these values. 

    Which brings us to another disturbing and dangerous argument that the Supreme Court has made, and which is being repeated by fundamentalists of all hues and religions: that homosexuals are a “minuscule fraction” of our population. First, that is incorrect: Given the estimate that they are 7-13% of our population, even if we were to consider just our adult (18+) population of 762 million (and not the entire population of 1.2 billionplus), it adds up to almost 100 million at the upper end of the range, which is larger than the population of Australia, Canada, Switzerland, Denmark, the Netherlands, Singapore and Finland put together. 

    Even at the lower end, that’s 7%, it’s about the size of India’s entire tribal population and half its dalit population. So, even if one were to accept a conservative estimate of the size of the country’s gay population, it is by no means “minuscule”.
    But if, again for the sake of argument, we were to accept the “minuscule” argument, does that mean that our tiny Parsi community should have no protection under the Constitution? They are, after all, “minuscule” compared to Hindus, Muslims and several other religious and ethnic groups/ denominations. 

    What if someone tomorrow were to decide that cremations and burials were the only “natural” way to dispose of the dead? Would that make the Parsi tradition of disposing of their dead as the “unnatural” acts of a “minuscule” community? Should it be declared “criminal”? Should their dakhmas (towers of silence) be shut down and should Parsis who bid their loved ones goodbye in their own traditional way be thrown into jail? 

    When Independent India was born, our nation-builders provided for two nominated seats in Parliament for representatives of the Anglo-Indian community — because they felt the community was perhaps too small to secure representation in a general election. 

    Our democracy needs to be large-hearted enough to accept people of diverse faiths, beliefs and orientations, as long as they do not subscribe to hatred and violence. Who and how they choose to love, consensually and in private, shouldn’t be anybody else’s business.

( from Times of India )