Anupam Shukla – Kailasha Foundation

HOMOSEXUALITY: NO LONGER A CRIME IN INDIA!

Anupam Shukla — Thu, 06 Sep 2018 13:41:32 +0000

What is homosexuality?

Homosexuality, sexual interest is an attraction to members of one’s own sex. The term gay is frequently used as a synonym for the homosexual; female homosexuality is often referred to as lesbianism. At different times and in different cultures, homosexual behavior has been variously approved of, tolerated, punished, and banned.

Homosexuality was not uncommon in ancient Greece and Rome, and the relationships between adult and adolescent males, in particular, have become a chief focus of Western classicists in recent years. Judeo-Christian, as well as Muslim cultures, have generally perceived homosexual behavior as sinful. Many Jewish and Christian leaders, however, have gone to great lengths to make clear that it is the acts and not the individuals or even their “inclination” or “orientation” that their faiths prescribe.

Others—from factions within mainstream Protestantism to organizations of Reform rabbis—have advocated, on theological as well as social grounds, the full acceptance of homosexuals and their relationships. The topic has threatened to cause outright schisms in some denominations.[i]

Background of the legal battle in India:

The first step towards the law was taken by the Naz Foundation, an NGO, working to create awareness of HIV/AIDS and other sexual health issues. They filed a petition challenging the law in the Delhi High Court in 2001. New Delhi’s High Court decriminalized homosexuality among consenting adults in 2009, finding that applying its ban on “carnal intercourse against the order of nature” to consenting adults breached the rights to life, liberty, and equality enshrined in the country’s Constitution.

But the Supreme Court overturned the decision in 2012 while considering appeals from religious groups. In 2016, five petitions were filed in the Supreme Court by prominent LGBTQ activists to overturn the law. They claimed that Section 377 violated their sexual autonomy, privacy, and right to equality. The Court delivered the final judgment on 06.09.2108, Thursday/

Key Observations by the Supreme Court:

The five-judge bench of the SC led by CJI Dipak Misra decriminalized consensual gay sex unanimously in case of NAVTEJ SINGH JOHAR & ORS. V. UNION OF INDIA. The main observations made by the Court are:

Section 377 of IPC in so far as it criminalizes consensual sexual acts between man and man, man and woman or woman and woman is unconstitutional and struck down. Sex with an animal will, however, remain criminal. (The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.)
LGBT community possesses equal rights under the Constitution.
History owes an apology to members of the community for the delay in ensuring their rights,” said justice Indu Malhotra.
The primary objective of having a Constitutional society is to transform the society progressively; Constitutional provisions should not be interpreted in the literal sense.
The sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression.
“Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary,” the Chief Justice, Dipak Misra.
The provision of IPC had resulted in collateral effect in that consensual sex between LGBT person is criminalized and is violative of Article 14.
Justice Rohinton Nariman says one feature of his judgment is reliance on Mental Healthcare Act as per which Parliament has recognized that homosexuality is not a mental disorder.
Bodily autonomy is individualistic. Expression of intimacy is part of a right to privacy.
Discrimination on the basis of sexual orientation in violation of freedom of speech and expression.

With these words and many more references, the Supreme Court overruled The judgment in Suresh K. Koushal & Anr. v. Naz Foundation & Ors.[ii] Homosexuality is not a crime in India anymore and it is not a mental disorder. The country must salute the efforts of Sunil Mehra, Ritu Dalmia, Aman Nath, Ayesha Kapur, and Navtej Singh and many unknown activists for their fights and the society should welcome the change which the Supreme Court has intended to bring.

When love comes out of the closet, hate shall too raise its hood.

[i] https://www.britannica.com/topic/homosexuality

Anupam Shukla — Fri, 06 Apr 2018 05:30:58 +0000

While the whole society is busy talking about rights, it is desirable to know the duties too enshrined in the holy document i.e. the Constitution of India. A duty is something a man is supposed to do or not to do. It is an attribute of being a social animal. A right in regard to one’s self is a duty in regard to others. Duties and rights are the two sides of the same coin.

Gandhi Ji gave more importance to duties than rights. To quote him, “… the right to perform one’s duties is the only right that is worth living for and dying for. It covers all legitimate rights.” In Kathiawad Political Conference, 1925, he remarked: “the true source of right is duty… if we all discharge our duties, rights will not be far to seek…”

Origin of Fundamental Rights: Gift by the Socialist States

The concept of fundamental rights owes its origin to the socialist nations. USSR set the tradition and other socialist states followed it. Soviet Constitution declares that the “citizen’s exercise of their rights and freedom is inseparable from the performance of their duties and obligations.” It also provides that “a citizen of the USSR is obliged to respect the rights and lawful interest of other persons, to be uncompromising towards anti-social behaviour, and to help maintain the public order.”

Recommendations of Swaran Singh Committee:

Fundamental rights were not originally incorporated in Indian Constitution. During the emergency, the government appointed a committee under Sardar Swaran Singh to make necessary recommendations about Fundamental duties. The committee suggested the inclusion of a new chapter as fundamental duties in the Constitution. The committee proposed that “the Parliament may by law provide for the imposition of such penalty or punishment as may be considered appropriate for any non-compliance with or refusal to observe any of the duties.” The committee had also suggested that duty to pay taxes should be the fundamental duty of every citizen. But it was refused by the then government.

Incorporation of Fundamental Duties by Forty-Second Amendment Act, 1976:

On the basis of the Swaran Singh Committee Report, a new chapter (Chapter IVA) was added to the Constitution by the 42^nd Amendment Act, 1976. There are 11 fundamental duties in Article 51A. It says it shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;

(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

The committee also recommended some other duties to be incorporated in the Chapter mainly:

To foster a spirit of family values and responsible parenthood in the matter of education, physical and moral well being of children.
Duty of industrial organisations to provide education to children of their employees.

Inclusion of Fundamental Duties was the first attempt of make the citizens realize their obligation towards the family, society as well as the nation. It tried to strike out a balance between the freedoms and obligations of a citizen.

Source:

Dr Fadia, B.L., Indian Government and Politics, Sahitya Bhawan, Agra, 2014.

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What is Kolpak Rule?

Anupam Shukla — Sat, 31 Mar 2018 05:30:17 +0000

There is a very little chance that you’ve heard about this Kolpak Rule, even if you are a die-hard sports fan. It is one of the lesser known and less discussed fact of cricket and rugby that has been controlling the game ever since 2003-04.

Background:

Maroš Kolpak, born in Czechoslovakia, a Slovak handball player, legally resident and working in Germany, was playing for the German second division handball side TSV Ostringen since 1997. The German Handball Association had a rule (Rule 15) which prohibited its member clubs from fielding more than two non-EU citizens. At that time, Slovakia was not a member of the European Union then (it joined the EU in May 2004), Slovakia did, however, have an Association Agreement with the European Union.

Kolpak was ejected from his club in 2000 as they had filled their quota of two non-EU players. He challenged the ejection on the ground that Rule 15 placed an illegal restriction on his freedom of movement as a worker by treating him differently from German citizens. The Association held that equality of treatment applied only to citizens of European Union countries and not to non-EU citizens. Maros Kolpak approached to the German court which referred it to the European Court of Justice to determine whether the Association Agreement between Slovakia and the European Union provided equal rights for Slovak workers who were living and working legally within the EU. The ECJ gave its landmark judgment on 8th May 2003, in favour of Maros Kolpak. And that is why the judgment is popularly known as Kolpak Rule.

It ruled that citizens of countries which have signed EU Association Agreement have the same right to freedom of work and movement within the EU as EU citizens. Thus, any restrictions placed on their right to work (such as quotas setting maximum numbers of such foreign players in sports teams) are deemed illegal under EU law. The decision put a wide impact with regard to English County Cricket and professional rugby.

The Kolpak Ruling declares that the status that only Citizens of EU countries are allowed to work in any other EU country does not remain the same. Citizens of countries that are part of European Union Association Agreements, which are free trade treaties between the EU and other countries, also get the same right after the judgment.

Effects:

Earlier to the Kolpak verdict, the Englan Cricket Board rules had limited each county to play one overseas (non-EU) professional. But the Kolpak rule allowed Players from countries with such deals with the EU to play cricket in any EU country without being considered an overseas player. This means they can sign contracts with English county sides without having to be fielded as overseas players.

To discourage this practice, ECB brought new rule in payment to counties. Every game a Kolpak player plays instead of an English qualified player, a county gets £1,100 less from the ECB. But, the system did not result in favour of ECB as the number of Kolpak players did not drop, the counties chose to continue to sign foreign players, rather than maximize their handout from the ECB. The numbers kept increasing and it went to its peak when in 2008 during a match between Northants and Leicestershire, 11 players took on the field who were from non-EU countries and exploited the Kolpak rule.[i]

Amendment to Cotonou Agreement:

The number reached to 60 Kolpak players in English cricket, which alarmed the dangers to ECB. It resulted in an amendment to the Cotonou Agreement. ( cricketing nations such as South Africa, Zimbabwe, as well as several Caribbean nations, forms the African, Caribbean and Pacific (ACP) Group of States. This group signed the Cotonou Agreement with 15 member nations of the European Union in June 2000 to reduce poverty in ACP nations and to establish trade co-operation between ACP and EU nations). The amendment gave some respite to England Board, which was keen to reduce the number of overseas players. In the amendment, EU stated that the Cotonou Agreement should not be interpreted as an avenue for free movement of labour, but should be treated as an opportunity for free trade of goods and services. United Kingdom’s Home Office later enforced further restrictions on Kolpak players by stating that only those individuals who have held a valid work permit for four years have the right to be treated as EU citizens. The amendment also allowed entry limitations to be decided by visa regulations.

Qualifications of a Kolpak player:

To be a Kolpak player, he has to give up his right to play for his country. A Kolpak player must not have represented his country in the past 12 months and during the period of his contract with a county, he will not be eligible to represent his country. The Kolpak players will be eligible to play for England after plying their trade in the country for four years.

Consequences of Brexit:

Britain’s decision to leave the European Union, known as Brexit, has its impact on sports as well. As a non-member of the EU, those agreements (Cotonou Agreement, etc.) Britain may prevent players from taking up county contracts. As a result of the uncertainty signing long-term contracts with counties to take advantage of the rules. The real result of Brexit is still unknown and the future remains discouraging for such players.

Some Key Kolpak Cricketers:

South Africa: Ashwell Prince, Ryan McLaren, Faf du Plessis, Neil McKenzie, Alviro Petersen, Andre Nel, Colin Ingram, Justin Kemp, Paul Harris, Kyle Abbott, Rilee Rossouw, David Wiese, Lance Klusener.

Zimbabwe: Andy Flower, Grant Flower, Kyle Jarvis, Brendan Taylor, Anthony Ireland

West Indies: Shivnaraine Chanderapaul, Dwayne Smith, Pedro Collins, Brendan Nash, Corey Collymore, Ottis Gibson, Ravi Ranpaul, Tino Best,

New Zealand: Andre Adams

Netherlands: Ryan ten Doeschate

[i] http://news.bbc.co.uk/sport2/hi/cricket/counties/8325975.stm

Other sources :

https://en.wikipedia.org/wiki/Kolpak_ruling#cite_ref-bbc4_5-0

http://www.cricbuzz.com/cricket-news/70926/the-kolpak-deal-frequently-asked-questions

http://www.espncricinfo.com/story/_/id/18411981/the-kolpak-rule-explained

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What is Communalism : Causes and Solution

Anupam Shukla — Fri, 30 Mar 2018 05:30:34 +0000

One of the greatest dangers for any country in the recent times has been communalism. The Merriam-Webster Dictionary defines communalism as “social organization on a communal basis or loyalty to a sociopolitical grouping based on religious or ethnic affiliation.” In a broader sense, commitment to a religion or religious system is not communalism, attachment to a religious community or religiosity is not communalism. But using a religious community against other communities and again the nation is communalism. Communalism means the opposition of religious communities to each other. The ideology focuses on the separate identity of a religious group and tries to promote its own interest at their expense. Communalism means to believe or to propagate that the socio-economic and political interest of one religious, caste or an ascriptive group are dissimilar, divergent and antagonistic to those of others.

Communalism is a political orientation that recognizes religious community and not the nation as the focal point of political allegiance. Therefore, it is a political strategy opposed to nationalism as a process of multi-ethnic, multi-lingual, multi-religious communities. It also opposes the idea of secularism and socio-cultural co-existence.

The growth of Communalism in India:

Communalism owes its existence in India to British imperialism. It was a desperate design to sow disaffection and conflict. It was used to promote the social & cultural differences and then to extend political divisions by treating Indians basically not as Indians but as members of religious communities. The voters were classified as Hindu or Muslim and so were the candidates and representatives. It is the contribution of British that communalism came to acquire the meaning of being opposed to national identity, of being against the secularization process, of being too narrowly and negatively attached to one’s own religious community and that essentially for political benefits.

Causes of Communalism:

The main causes of rising and extension of communalism in India are as follows:

Political opportunism
Communal Parties and Organisations
Economic Backwardness of the Muslims
Appeasement Policy of the Congress Party
Separatism and Isolationism among Muslims
Communal Media, Literature and Textbooks
Hindu Chauvinism
Electoral Compulsions

Eradication of Communalism:

Communalism cannot be uprooted from a society like India. However, there are certain measures by application of which communalism can be checked. They are:

A ban on communal organisations,
Balanced development of all the communities,
Increasing the sense of security in Muslims by way of economic growth among them,
Separation of religion from politics,
Removal of communal orientation in textbooks and other sources in schools,
Avoidance of rumours and fake news likely to promote communal prejudice,
Joint enjoyment and celebration of festivals…

Apart from these, the state machinery should understand its role in the society and the law and order machinery should be depoliticized. They should be made directly responsible for any communal tension in their jurisdiction.

Communalism cannot be accepted as the necessary evil in the society. It is detrimental to the development, social change, democracy and the federal feature of the State. Jawaharlal Nehru had pointed out the issue and termed it as the greatest danger. And so he said that anyone who loves India would hate communalism and anyone who hates India would love communalism.

Source:

Dr Fadia, B.L., Indian Government and Politics, Sahitya Bhawan, Agra, 2014.

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Sources of Law: Precedent IV

Anupam Shukla — Tue, 27 Mar 2018 06:45:10 +0000

Read Previous Part Here

Do the Judges make Law?

There are two contrary views on the issue. First theory says that judges only declare the existing law while the other theory is of the opinion that judges do make law. The theories are:

Declaratory Theory, Judges declare law:

The theory suggests that judges while delivering judgments do not make law but declare them. They discover a law and then declare it. Blackstone, the great exponent of this view, says, ‘A judge is sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law but to maintain and explain the old one jus di cere et non-jus dare.’ Judges are law-finders rather than law-makers.

Dr. Carter, a strong supporter of Blackstone’s view, says ‘the judges were the discoverers and not the lawmakers of the law. If what the judges did was to declare a law not before existing, the subjection by them of one of the parties to liability for an infraction of the law in a transaction occurring before the existence of law would be an indefeasible outrage.’ Carter suggested that decisions merely declare the existing law.

In Rajeshwar Prasad v. The State of West Bengal,[i] Justice Hidayatullah stated: “No doubt, the law declared by this court (Supreme Court) binds Courts in India but it should always be remembered that this Court does not enact.”

This theory that judges declare the law and not make it has been highly criticized too. Bentham and Austin both rejected it. Bentham pointed out about this theory, “it is a willful falsehood having for its object the stealing of legislative power by and hands which could not or does not openly claim it.” Austin said that the theory is a childish fiction employed by our judges that Common Law is not made by them; but is a miraculous something made by nobody, existing, I suppose, from eternity and merely declared from time to time by the judges.

Original Law Making Theory, Judges make law:

According to this theory, Judges make law in the same sense in which the legislative body of the State does. This theory owes its existence in English Law where Judges have played a significant role in molding the law as Common Law is also known as the Judge-made law. Prof. Dicey says that a large part and as many would add the best part of the law of England is judge-made law, that is to say, consist of rules to be collected from the judgments of the court. Radcliffe states “There was never a more sterile controversy than that upon the question whether a judge makes law. Of course, he does. How can he help it.― Judicial Law is always a reinterpretation of principles in the light of a new combination of facts. Judges do not reverse principles, one well established, they do modify them, extend them, restrict them and even deny their application to the combination in hand.”[ii]

In Keshwanand Bharti v. State of Kerala[iii], the following observations of Justice Homes were approved: “I recognize without hesitation that judges do, must legislate, but they can do so only interestless; they are confined from molar to molecular motions.”

The application of both the theories depends on the legal system of the State. In common law states, the judges play a vital role in lawmaking while in states where the law is codified, they are less relevant and only interpret laws.

Merits of the Doctrine:

Shows respect for the opinion of one’s ancestors.
Based on custom and that’s why they get the support of the general public.
It brings certainty and solidarity in law.
Precedents are based on practicality and it fulfills the needs of the law more suitably.
Precedents provide ease to judges, lawyers as well as the general public as it saves expense and avoid delay and inconvenience to them.

Demerits of the Doctrine:

The increasing number of cases have brought the possibility of overlooking authorities.
The conflicting decisions of superior courts did not help lower court and put them in dilemma.
The development of law depends on the litigation i.e. if there is no litigation on an important issue, the law will remain unadjudicated.
Due to this doctrine, sometimes, erroneous decisions are settled as law for a long time.

Conclusion:

The courts are performing a valuable role in recent times. They are not only deciding cases but also actively participating in social upliftment. The rule of precedent has established its place in Indian judiciary. It brings integrity and uniformity in law and legal system. The only need of the time is to save energy in finding out the law from the rapidly multiplying volumes of reports and avoid the constant danger of overlooking authorities.

[i] AIR 1965 SC 1887, 1891

[ii] Radcliffe quoted in Robert Stevens, Law & Politics, The House of Lords as a Judicial Body (p. 44).

[iii] AIR 1973 SC 1461

Books referred:

Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
Singh, Dr. Avtar, and Kaur, Dr. Harpreet, Introduction to Jurisprudence, Lexis Nexis, Gurgaon, 2013.

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