It was a historic judgment for India when the Supreme Court decriminalized gay sex, but  LGBTIQ activists say there’s a long way for acceptance and normalization in terms right to marry, child adoption, and property inheritance.

The arc of the moral universe is long, but it bends toward justice

— Dr Martin Luther King Jr

The LGBTIQ community today has much to celebrate. For 158 years, it has suffered in silence — ostracised, humiliated, attacked and beaten by society monitors due to sexual orientation. Like Bill Pullman in the 1996 movie, The Independence Day said: “We are fighting for our rights to live, to exit. We will not go quietly into the night, we will not go vanish without a fight, we’re going to live on. We’re going to survive”.

In this regard, the scrapping of Section 377 is a landmark judgment in which Supreme Court decriminalised homosexuality. This is the first step to bring about a larger impact in society by changing the mindset of people and the demand for civic right and inclusiveness. However, the Pride Parade will continue to take place to break gender stereotypes. A long way to go in achieving this, but by raising awareness through active and continuous discussions at school, college and workplace and impactful reportage the ultimate change may come.

According to The Humsafar Trust (HST), between 2016–2018, HST’s crisis response team attended to 83 crises cases in Mumbai. Of these 83, 6 cases involved an adult, homosexual male being blackmailed by the police under the threat of Section 377 of the IPC. In 12 cases, adult, homosexual males were threatened with false accusations under this section and victims of extortion by ordinary persons, sometimes climbed to Rs 1 lakh.

While reversing an earlier decision, the court termed the Section irrational and arbitrary and ruled that the LGBTIQ community would from now on have rights similar to other citizens. In other words, consensual gay sex is no longer illegal provided it is in private. The SC also said that there should be respect for these rights and criminalising gay sex was irrational and indefensible and must be interpreted as per the requirement of changing times.

The ruling came in light of a writ petition filed by dancer Navtej Jauhar, journalist Sunil Mehra, Chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur and 20 former and present students of various IITs. The issue was first raised by Naaz Foundation, an NGO which had approached Delhi High Court in 2001.

With this judgment, India joins the list of countries like Vatican City (1890), the US (2003), Fiji (2010), Nepal (2007), Seychelles (2018) and Canada (1969) to decriminalise homosexuality. Incidentally, it has never been illegal in countries like Indonesia, North Korea, South Korea, Poland, Taiwan and even Vietnam.

Section 377 referred to gay sex as an unnatural offense and punished carnal intercourse against the order of Nature with any man, woman or animal, with 10 years of imprisonment.

Welcoming the verdict, Ashok Row Kavi, Humsafar Trust founder-chairperson, says: “We believe this is the beginning of a new journey for the LGBTIQ community in India. This verdict comes after sustained advocacy for over 18 years on the issue. At long last, the law does not criminalise consensual sexual acts between adults, occurring in private.

“The LGBTIQ Indians can finally enjoy equality before the law, freedom of expression, personal autonomy and right to dignity as expressed in Articles 14, 15, 19 and 21 of the Constitution of India. It is now time to gear up for our fight towards further rights including legal recognition, marriage rights, employment rights, anti-discrimination laws, adoption and other legal rights which have been historically denied to us.”

Agreeing with Kavi, Yashwinder Singh, program manager at the Trust, tells you that verdict against section 377 will be a huge support to deal with the crisis cases and the fight for the human rights of the

LGBTIQ community. “All the people under the LGBTIQ umbrella can live and ask legal assistance without the fear of being prosecuted under Section 377,” he tells you.

Filmmaker Onir says that this is just a beginning. “The scrapping of 377 doesn’t guarantee us civil rights and inclusion. It is just giving us the right to have consensual sex between two adults of the same sex. But with this move, we are empowered to take the fight forward to get our civil rights, including the right to marry same-sex people, right to adoption, rights at workplace, right to inheritance and other benefits like rights that guarantee us equality, liberty, respect and dignity of life irrespective to cast, creed, gender, religion and sexuality. It is a long journey still,” Onir adds.

The director, who has made films like My Brother Nikhil and Shab, opines that his work will now get accepted and screened by satellite channels. “My next fight is going to be for inclusion. For years, I had to fight with satellite channels requesting them to show my film My Brother Nikhil on TV. Even for my last film Shab, I fought for eight months for a U/A certification from the Central Board of Film Certification and am still facing a hurdle for a satellite release. There is an unspoken homophobia that muted my voice every time I raised my voice to screen my films.

“Today, I hope they will accept the SC’s order and accept my films. There are very few people coming up with films on the LGBTIQ community. I hope that after this verdict many more filmmakers will come up and tell stories that need to be told to make the society understand and accept homosexual people. It is about becoming a better human being and a  better society which accepts and celebrates people,” Onir tells you.

Filmmaker Sridhar Rangayan faced a similar fate when he started working with the LGBTIQ community in 1990 with the launch of the first gay magazine Bombay Dost. He has been organising Kashish Mumbai International Queer Film Festival for nine years which exclusively showcases films on the lives and challenges of people from this community.

“I faced several challenges. Not many people like to attend a film festival that talks about LGBTIQ people. Even companies and brands would not extend financial support.  With this judgment, we are hoping to have a turnaround,” Rangayan says.

Prince Manavendra Singh Gohil, an LGBTIQ activist who has been running The Lakshay Trust which works for the community, feels that Section 377 was not used as much as it was misused by enforcing authorities. “I have been working with Lakshay Trust, the first organisation which started working with transgenders and gays in Gujarat. We have been contacted by the Government for HIV prevention and when our workers would go to distribute contraceptives for safe sex practices, they would be harassed by the police and tortured on grounds that we were violating Section 377. So this kind of misuse will stop and scrapping this law is definitely going to help us to fight HIV. It has also been notified by the Health Ministry that Section 377 has been an impediment to HIV control,” Prince Gohil asserts.

The life of homosexuals was full of hurdles earlier. A reflection of this was shown in films like My Brother Nikhil. “A lot of people were forced to live double lives as they were considered criminals. People feared to come out in open. They were made to feel ashamed for their sexual orientation. This was misused by law enforcing bodies. There are people who think that gayism spreads diseases. First, there is nothing called gayism. Second, statistics say that homosexuality does not cause diseases, unsafe sexual practices do. They misquote history, culture and science to prove their regression,” Onir says.

The fact that Section 377 has now decriminalised gay sex is a boost to the community’s confidence. “You are a citizen of this country and not a criminal. We may not be afraid now to reveal our identity” Rangayan says.

Now, while the State is behind the LGBTIQ community, the next step is to change the mindset of the people who need to accept the community. In this regard, Justice Nariman has asked the State to give wide publicity to the judgment and to sensitise key actors like the police.

“With the help of media, satellite channels and other social media platforms, we will be able to tell stories that will help people to understand and learn to accept

LGBTIQ people. It will not happen overnight. It is everybody’s duty to make the difference,” Onir tells you.

Agrees Rangayan, adding that the legal change has to be followed up with social changes. “The society needs to understand that LGBTIQ are just people with different sexual orientation or gender identity. There is nothing different about them. One’s identity is not just being gay or lesbian or bisexual. One’s identity is one’s personality, nature and the kind of work we do. We are hoping to get social acceptance at a larger level. This will give confidence to the families to support their children. We need to understand that same-sex has been part of India for centuries. It is not a western import. It is as natural as anything else. That is the change we would like to see in the people. We should talk to religious groups, Government officials, doctors. All of them have to be sensitised,” Rangayan says whose award-winning film The Evening Shadow is the curtain raiser film at the ongoing Lonavala International Film Festival.

Through Kashish Forward Programme, Rangayan is also spreading awareness amongst youth by screening LGBT films to them. “Youth’s minds are open to imbibe new ideas. I have also been a part of a group — Swikaar — which supports and connects parents in accepting their homosexual child. Children feel more confident to reach out and talk to other parents. Being gay or lesbian is not a disease,” Rangayan says explains.

Prince Gohil says the next step has to be the implementation of the judgment and advocacy at all levels. “We have to work towards implementing this judgment so that it reaches to the masses. For this, we need the support from the Government and other stakeholders to ensure equal rights and zero discrimination. We need to do advocacy at all levels and create more and more allies to get the support and acceptance from people who are not from the community. I have already designed a model which talks about LGBTIQ issues and this will get implemented at Karnavati University in Gujarat where I give lectures.  I am going to provide a safe place for the people who are thrown out of their house by their parents for being a homosexual. I am also educating parents to accept their child. We can reduce the hypocrisy at the lowest level possible,” Prince Gohil says.

Dr KK Aggarwal, president, Heart Care Foundation of India tells you that the medical community has always considered homosexuality as a normal and natural phenomenon and not a disease or crime. “It becomes important now for a medical doctor to know if the person is an

LGBTIQ. Till now, many of them did not come forward and disclose their orientation fearing the law. The job of a doctor or of the judiciary is to change with the changing times and broaden, delete or re-interpret the laws as per the changing needs of the society. It is heartening that the SC is now coming to the rescue of people, which will help in reducing the mental and social disorders in the society.”

Even the Indian Psychiatric Association indicates that homosexuality is not a psychiatric disorder. Clinical psychologist Dr Pulkit Sharma, welcoming the SC’s decision, opines that the judgment is only a part of the solution. “There are a few gay couples outside of India who feel that while the passing of a law is a move in the right direction, it is the society’s perception that needs to change towards homosexuality. Till that happens, such people will find it difficult to overcome their fears and the problems they face because of their orientation,” Sharma says, adding that the scrapping of the Section will help such people facing psychological problems but the society needs to change its mindset first.

Social activist and advocate Ashok Agarwal tells you that today’s society is healthy and progressive. “People should have liberties. If two men and/or women want to live together they should be allowed. More freedom should be given. For a country to progress, it is necessary for the society to progress. We must learn something from the scrapping of Section 377. We must move beyond archaic thinking. And the good is that now LGBTIQ people will not be blackmailed by unscrupulous elements,” Agarwal states.

Tripti Tandon, a lawyer with Lawyers Collective, who represented two petitioners RS Jafar and Kavi, has a similar take and tells you that the best part is that the community will now not be blackmailed because of its sexual orientation and personality.

“First, Section 377 was used to criminalise the expression of one’s sexuality and personality because there was no distinction between consensual and non-consensual. This is gone. Second, because of this, two people of the same sex engaging in an intimate act have the same right as heterosexual people. The LGBTIQ community faced blackmail, violence and extortion. This happened to them every day and they couldn’t report it. If they did, the police would label them criminals. Now, the community can report a crime against it and seek justice. Third, the court says that LGBTIQs are entitled to a full spectrum of rights. This is very powerful. It will mean that LGBTIQ people can enjoy all rights like other citizens in every sphere, work or education. No discrimination will be tolerated,” Tandon explains and adds that the scrapping of the Section has opened the door for same-sex marriages.

She also tells you that despite the backing of the State, it is the society that needs to change. “This is the reason why the SC has urged the society to change its mindset. It has said that the scrapping of the Section has to be widely publicised and made available on social media platforms so that people read it. How does society change? Someone needs to stand up. Then only will, larger numbers will follow. That is what people did after the Naaz judgment of Delhi High Court. People came forward and said: ‘I am legal. There is nothing criminal about my personality’. This has happened again. The SC has said that LGBTIQ has full rights. When someone stands up against with them with this judgment, the society has to take notice,” Tandon says.

Irrespective of the political ideology, supporters of extremist violence in India must be brought to book.

The reaction of the simpatico to the crackdown on Maoist sympathisers — urban Naxals, in popular parlance — via multi-city raids by Pune police which has led to the arrest of five activists, some of them lawyers and academics, is symptomatic of communitarian discourses having overtaken common sense, the primacy of individual rights, due process and faith in the law of the land in contemporary India. While it is entirely correct that being of an extreme ideological persuasion, ultra-Left in this case, is no crime, and dissent is vital to democracy, it is equally important to remember that words and actions including providing material/logistic support intended to promote and/or normalise violence, whether against individuals, the state and its institutions, or class, caste, community groups is illegal and those who do so must face the full might of the law. This applies across the board, of course. So, the lack of discernible strong action against revanchist organisations — Right-wing outfits, in popular parlance — also accused of promoting/normalising violence will and should raise eyebrows. But that is no excuse for saying those who have been identified by police after a months-long investigation as suspects should be exempt from going through due process because of their social standing, ideological position, gender, age, profession, academic qualification, purported advocacy of human rights or any other such factor. The law is blind.

Indeed, it is illustrative that some of the detained suspects are using the legal remedies available to all Indian citizens,thanks in the main to the adherence of Indian state instrumentalities to due process, to question their arrest/remand and they have every right to do so. That those sympathetic to the Maoist/Naxalite cause have through propaganda, agitprop and the propagation of communitarian ideologies been in the forefront of justifying a violent overthrow of an allegedly oppressive Indian state is, in the above context, rather ironical. But then spouting an incendiary discourse against the state and its institutions even while utilising its benefits (justified as tactics’) is a hallmark of extreme ideologies of leftist provenance so it should not surprise us. All this, naturally, is not to say that innocents are not framed by police in this country or false and malicious allegations not made for personal gain/political benefit. But who is to be the judge of that? It is the legal system, decrepit and flawed as it is, which is still the only arbiter of whether a charge is, even prime facie, sustainable and that is because contrary to what some would have us believe, we are not a police state.

The charges against the five detenus, which are a part of sustained Government crackdown on Maoist sympathisers over the past few months, relate to the violence in Bhima Koregaon on January 1, 2018, as well as the investigations carried out by police over subsequent months into the support, logistical and material, allegedly provided by what they have termed Maoist think-tanks. Unlike those who make careers out of cooking up malicious and false allegations and then manipulate simpatico media or use social media to run vicious campaigns against upright institutions and individuals but never approach the courts themselves because their allegations would then be subject to scrutiny at the threshold level itself for prima facie substance before being admitted, when police and/or investigative agencies charge a suspect they know that their actions will be subject to the most rigorous scrutiny by the law courts. It behoves us all to await the result of that scrutiny before rushing to a conclusion one way or the other.

Writer & Courtesy: The Pioneer  

The SC order has put the Central govt in a bind

A vacation bench of the Supreme Court has passed the interim order on June 05, 2018 clarifying that Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter.

The Supreme Court interim order will permit the government to fill a large number of vacancies in government departments. The circulars issued by the department of personnel and training can be followed to make promotions as per existing reservation policy.

The Government was not able to fill up vacancies in the wake of conflicting judgments by different courts. The Supreme Court’s decision will protect the government from being in contempt. Now, the government can proceed with promotions in accordance with laws. But which are these laws? That, however, is not clear yet.The court should have clarified on what circular or rules should the government go ahead with the promotions until a final judgment is given by the Supreme Court.

even the Nagaraj judgment given by the Supreme Court in 2006 has to be revisited. With regards to the power vested with the government for reservation in promotions, there are three conditions that must be met before promotions are decided. These are backwardness, inadequate representation, and efficiency in administration. Since various circulars issues by Government for reservation in promotion had not taken care of these parameters laid down by the Supreme Court, many High Courts struck down the Government circulars thereby stalling the whole process of promotions in Government Departments.

It is to be remembered that provisions under articles 16(4), 16 (4A) and 16 (4B) of the Constitution providing for reservation in promotion are only enabling provisions and not a fundamental right. A few years ago, there was a case relating to reservation in appoint
ment for faculty posts in the super specialties in AIIMS. The Supreme Court ruled that no reservation in promotions would be given. All parties had protested this decision, but nothing happened after that.

The Supreme Court while passing the interim order on June 05, 2018 has clarified that the Government is not debarred from making promotions in accordance with law, subject to further orders. Effectively it means that inter
im order is only a temporary relief and till the Constitution Bench delivers the Judgment. The Government will still have to make promotions in accordance with law and that law is enunciated in Nagaraj case too. Filling up the vacancies with principles of reservation in promotion under the interim order will be subject to final decision of the Apex Court.

By PK Malhotra: Former Law Secretary of India

India pursuing a fake brand of secularism has spoiled the secular aspirations of a large number of Indians.

The decision of the All India Muslim Personal Law Board (AIMPLB) to establish Sharia courts in all districts across the country has stirred up a controversy and brought us back to the debate on the fundamentals of a secular state, which began in the Constituent Assembly over seven decades ago. It now appears that the concerns expressed by some eminent law-makers in that Assembly, including BR Ambedkar, over objections to a common civil code, have come to haunt us all over again.

Political developments in recent years and the politics of appeasement practised by several political parties, including the Congress, provide ample proof of the congenital maladies that the Nehruvian establishment injected into India’s polity at the time of the nation’s Independence.

The Constituent Assembly began its sittings on December 9, 1946. Eight months hence, India gained independence and the Muslims of India succeeded in dividing the country and creating a separate Islamic State — Pakistan. But, even two years after the vivisection of the country on the basis of religion, Muslim members of this Assembly, who represented Muslims who preferred to stay back in secular India, raised demands like separate electorate and successfully stalled the proposal to introduce a common civil code. The vehemence with which they protested against a constitutional provision to enable the drafting of a common civil code shocked many members of the Assembly, including Ambedkar.

Here are some excerpts of the debate on this issue in the Constituent Assembly on November 23, 1948. Now that the AIMPLB is planning to have a separate legal and judicial network across the country to deal with many matters pertaining to civil law, readers will realise the price the country is paying today for Jawaharlal Nehru’s pusillanimity at the time of Independence and the shadow that this has cast on the secular aspirations of a majority of Indians.

When the issue came up for discussion in the Constituent Assembly on November 23, 1948, Mohamad Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Baig Sahib Bahadur, Pocker Sahib Bahadur and Hussain Imam vehemently opposed the Article which said: “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” Mahboob Ali Baig Sahib Bahadur claimed that as far as Muslims were concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion. Other Muslim members echoed this sentiment. Mohamad Ismail Sahib wanted a proviso added to the Article that no group or community would be obliged to give up its own personal law. He claimed that a uniform civil code will generate disharmony whereas “if people are allowed to follow their own personal law, there will be no discontent or dissatisfaction”. Pocker Sahib Bahadur claimed that the Article was “a tyrannous provision which ought not to be tolerated”.

Mahboob Ali Baig Sahib Bahadur put forth a convoluted interpretation of secularism. He said that in a secular state, citizens belonging to different communities must have the freedom to observe their own life and their own personal laws. Pocker Sahib Bahadur claimed that it was the duty of the majority to secure the sacred rights of every minority.  Munshi challenged both of them: “Nowhere in advanced Muslim countries the personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of a civil code. Take for instance Turkey or Egypt. No minority is these countries is permitted to have such rights.” He said that majority among Muslims showed no such consideration to the Khojas and Cuthi Memons, who wanted to have their own personal laws. Therefore, he pooh-poohed their claim that the personal laws of minorities were always respected in other parts of the world. Alladi Krishnaswami Ayyar also challenged the contentions of the Muslim members. He asked whether these arguments would promote “the welding together a single nation, or is this country to be kept up always as a series of competing communities?” Further, when the British introduced one criminal law for the entire country, the Muslims had no objection. Nor did they object to a common law on contracts and such other laws. He felt that “the only community that is willing to adapt itself to changing times seems to be the majority community in the country”.  The point that is often reiterated by Hindus today.

Ambedkar said he was surprised to hear that Muslims had always followed their own personal laws because there was a uniform criminal code, a common transfer of property act, a Negotiable Instruments Act etc in existence. In other words, there is already a uniform civil code and the idea is to extend it to marriage and succession.   

The Muslim members said that many of the practices and injunctions came from the Koran and so, for 1350 years, it has been practiced by Muslims and recognised by authorities in all states. Ambedkar challenged this claim as well. He said, for example, the North-West Frontier Province followed Hindu Law in regard to succession and other matters until 1935. In the Malabar region, Marumakkathayam — a matriarchal law — applied not only to Hindus but to Muslims as well. He told the Muslim members who were objecting to a common civil code that there was no use making a categorical statement that “the Muslim Law has been an immutable law …from ancient times”. Therefore, if it was found necessary to evolve a single civil code applicable to all citizens irrespective of their religion in a new civil code, “I am certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

In order to put off the discussion on the common civil code, Naziruddin Ahmad claimed that the Constituent Assembly was ahead of its times. He said he had no doubt that a time would come when the civil code would be uniform.  This was wishful thinking indeed, as the recent decisions of the AIMPLB shows. In any case, this is one of Jawaharlal Nehru’s monstrous follies. His pursuit of a fake brand of secularism encouraged the Muslim minority to retain its separateness and thus impede national integration. Future generations of Indians will pay the price.

(The writer is Chairman, Prasar Bharati)

Writer: A Surya Prakash

Courtesy: The Pioneer

Long investigation process in India gives accused time to vanish into thin air.

So you become aware that some Indian investigative agencies are acting against you or might act against you. Whether that is because you have been accused and convicted in the court of law or that of a news television studio or because someone in power has told you that you are in a spot of bother, it does not matter.

The fact is that you think you are in trouble and in India, thanks to labyrinthine and flawed judicial process you are not sure that you will get justice in a reasonable amount of time or you are actually guilty, what would you do? You know that the authorities have not issued a lookout circular for you just yet, so you would do what anybody would, that is to catch the first flight to a friend jurisdiction like United Kingdom, or even get a long-term visa in the United States. And if you’re really smart you find a friendly Caribbean haven where you can buy a citizenship and spend the rest of your life may be sipping Pina Colada’s under a straw hat on a beach of white coral sand.

No really? Ask yourself, if you had the money the get out of India, what would you do? This is not to condone the actions of Mehul Choksi, Nirav Modi, Lalit Modi or Vijay Mallya and many others over the years, but the slow-motion proceedings against such alleged scamsters and fraudsters gave all of them ample amount of time to escape. And even in some cases when the noose was tightening, it was all too easy for them to catch a flight and leave, Mallya’s case being too bizarre to even state. The fact is that the Indian state and its incompetent and most certainly corrupt investigative agencies let these people escape.

Again, we come back to a simple point, the most urgently required reforms in India are in the police and judicial system to reduce corruption and lethargy. There will always be some fish who escape through the net but India’s investigative agencies have a net with huge gaping holes, and one has to be a really dumb fish or pursued aggressively to get caught. At the same time, it is imperative that the External Affairs Ministry’s legal cell assist Indian investigative agencies more robustly in order to get extradition treaties moving. We must fix the net, otherwise any criminal will just do the logical thing, and if not London then certainly Nepal beckons.

Courtesy: The Pioneer

The Indian Government is mooting a new law to stop exploitation of NRI marriages.

Finally, the Government is considering not just legal redress of abandoned NRI wives but ensuring that errant suitors-turned-husbands are penalised for exploiting the marriage market at will. Both the Ministry of External Affairs and the Ministry of Women and Child Development have acted on years of complaint and data analytics to bring about a law in the Parliament’s next session that will get runaway husbands where it hurts most, their wherewithal to sustain themselves or their families. Summons/warrants will be issued online through a new MEA website as most husbands change their addresses or list fake ones. Anybody not responding to them will be declared a proclaimed offender and his properties, or those of his kin, will be seized. Of course, passports will be cancelled too. Though this government is committed to empowering its women constituency, somehow NRI wives have so far been outside actionable policies. Yet if the MEA data is to be believed, then at least one woman married to an NRI calls home every eight hours seeking help to return after being deserted by her husband or being subjected to ill-treatment and physical torture. Contrary to expectations, the figures have been growing for the last three years — 3,328 complaints were received since 2015 — pointing to a far deeper malaise about women who are being systematically  exploited and abused in foreign shores, cut off from the protection and redressal systems at home and deliberately isolated from those available in host countries and at missions. THE WCD Ministry gets 10-12 complaints daily!

There are shocking tales of incarceration and captivity, especially among unsuspecting young brides of arranged marriages, who are consigned to housekeeping duties, lodged in shabby basements and stripped off vital papers with policed movements. Some of them are trafficked and inducted into the sex trade or made bonded labourers. Imprisoned and isolated, an independent phone line is their only link to the outside world. For the rural hinterland, marrying a daughter off to an NRI is still seen as social ascension and for the groom’s family reason enough to extort dowry as a passport to a privileged life. Educated women are as much victims and now with work visa curbs in countries like the US compromising their skills, they are at best subjected to economic servitude. More than 30,000 cases of abandoned wives are pending in Punjab alone. Our immigrant women need immediate rescue. For this we need a strong deterrent that is reserved for the most offensive fraudsters, one that ensures immediate extradition or deportation of errants and transfers their assets to their immigrant wives.

Writer:  Pioneer

Courtesy: The Pioneer

The recommendations of Srikrishna Committee on data privacy bill are strong in intent but there are many challenges ahead.

The Justice BN Srikrishna Committee’s report on data privacy that was submitted to the Government this week is a landmark for three reasons. First, it upheld the right to consent of the citizens in sharing personal data. Second, it provides legal protection to citizens and calls for the formulation of a law on data privacy to meet this end. Third, it seeks to impose strict punishment and fines for those who intentionally and/or unintentionally leak personal information. While the 200-page report will require a lot of reading and explanation, the essential point it makes is that the views of the ten-member Committee are in consonance with the Supreme Court’s order last year which upheld the contention that there is a fundamental right to privacy of every Indian citizen and that the state or private companies cannot interfere with their lives. In fact, the report is if anything even more robust in calling for legislation on the right to privacy and data protection, which is a must in this age of information-sharing. Data is shared within seconds and at every possible opportunity even as the right to privacy suffers. The Srikrishna panel calls for strict auditing to ensure that any violators of privacy are held accountable and do not shift responsibility. In essence, the report seeks to preserve the right of citizens in the sharing of personal information with other individuals and/or organisations, which the panel makes clear cannot and should not be shared without their approval. The committee has made broad classification of what may be considered ‘personal data’ and what is ‘sensitive personal data.’ While the former pertains to any generic details of a person, the latter is the most crucial as it pertains to areas like health, identification of sex, biometric data among others. But there is a flip side too: It gives the state the leeway to process data that it deems to be necessary for its functioning.

While the ramifications of the commission’s report remain to be seen, the proposed legislation makes citizens the supreme commander of their personal data. How to protect the grabbing of information by foreign technology companies, however, remains an issue to be addressed in greater detail. The most significant of all the recommendations was perhaps on Aadhaar which is now under the scrutiny of the apex court on account of a bunch of petitions challenging the validity of Aadhaar itself. The Committee’s recommendations may be crucial in providing inputs to the Court. The views of the panel, perhaps natural given the complexity of the issue itself, are complex. It strives to strike a balance by, on the one hand, calling for ensuring autonomy of the UDAI while on the other the consent-exemption clauses appear to enable the Aadhaar system to function without hitches. The hope is that the Committee’s report will push the legislature and the executive towards guaranteeing data privacy even as technology is used for the benefit of India’s millions. The onus now is on the Government — which must go through the nitty-gritty of the Committee’s report — as also the elected representatives to discuss threadbare the Bill on data privacy and protection before it is passed into law.

Writer: Pioneer

Courtesy: The Pioneer

Still under discussion in the Parliament, the Anti-trafficking Bill is an amazing and bold step in combating and preventing human trafficking.

As Parliament discusses the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, threadbare, it must be said that the Bill is a bold move in the sense that it will raise the status of India at the world level in combating  human trafficking and the insidious exploitation of human beings by fellow men. The Bill resolutely affirms that ours is a nation that espouses, in letter and spirit, the motto of “zero tolerance” to any type of human trafficking. It will go on to strengthen, confirm and assert our unflinching commitment to the Constitution of India, which under Article 23, expressly prohibits human trafficking.

While deliberations for and against the Bill are very much in the news, if one were to take a dispassionate and objective look, there will be so much to say on behalf of the law enforcement agencies and the justice delivery systems, who are the statutory bodies to enforce and implement the law, once it is legislated. In this context, having the privilege to enforce the law for 35 years as an IPS officer, let me bring out a few salient features of the Bill that is still under consideration in the House.

Starting from the perspective of the victim of human trafficking, this Bill is a boon for them. It will, perhaps, be for the first time that the spirit of the Constitution will be captured in the Bill as it goes on to make relief and rehabilitation of the rescued person a matter of right. Transformation from the earlier ‘welfare perspective’ to ‘rights-based perspective’ is indeed a blessing in disguise and will provide whole-hearted support to the victims. The unheard voice of the survivors, who usually suffer in silence, is now set to be heard.

The Bill makes it clear that “rehabilitation of the victims will not be contingent upon criminal proceedings being initiated against the accused.” This provision is another feather in the cap as it guarantees the victims their right to dignity.  Further, there will not be any pressure on the victim to speak, state or depose in any manner.

The Bill calls for accountability of the rehabilitation agencies.  So far, under the existing law, it was the duty of the police to rescue the victims and there was no accountability of the agencies concerned in providing rehabilitation. By endorsing the new provision of bringing in accountability of agencies on matters of rehabilitation, it is not only the victim who is going to benefit but the entire justice delivery mechanism.

With the proposed changes, the victim, who will be counselled and rehabilitated, will be in a better position to argue his/her case. Further, a strident step by the victim in ensuring the prosecution of offenders will naturally expedite the judicial process. Effective and timely prosecution of offenders will be a great boon in prevention of crimes. Therefore, the provision of victim and witness care will go a long way in ensuring an established rule of law.

The Bill has given specific charter, shape and method to the entire rehabilitation process. Functions and roles of agencies have been delineated. The provision for the establishment of a national, State-level and district level committee  to monitor the rehabilitation process is a strident step in providing a single-window approach to the entire process. So far, it was a tedious task for civil society activists, who had to knock several doors to get across relief for the victim. This piece of legislation will make the entire investigative process easy.

From the perspective of investigation, a major challenge today is the issuance of trans-border jurisdiction and related investigation. Human trafficking is a borderless crime but jurisdictional issues come in the way of investigation, fanning out from the place of rescue ie, the destination, through transit to the source area. To tackle this problem, the Bill calls for the establishment of a National Bureau to effectively address this aspect.

We have seen the Narcotics Bureau working along with the State police and both have contiguous jurisdiction. Similarly, the National Bureau of Investigation  must be welcomed by law enforcement agencies.

The Anti Human Trafficking Units (AHTU) across the country, starting with the first nine districts being set up in 2007 under a joint project of the Ministry of Home Affairs and the United Nation and which was replicated to more than 300 districts, is all set to be legitimised and institutionalised. Special crimes need special attention. Hence, the setting up of these special units mandated in the Bill  is indeed an important step.

The method of trans-border cooperation, beyond the States and even beyond the international border, have been identified and addressed for the first time. A vast arena of confusion and conjectures has been made clear and lucid.

The system of nodal officers and nodal police officers in States, which was started in 2005 under the aegis of the National Human Rights Commission of India, has seen several ups and downs with ‘zero level’ functioning. This nodal system is very important to ensure the convergence of all concerned in preventing and combating human trafficking.  This Bill gives legal status to the nodal system, thereby providing a single window approach to the response system.

Against the existing provisions of the Immoral Traffic (Prevention) Act, (ITPA), this Bill allows any police officer to undertake rescue as and when they receive information.  There is no need for any notified police officer or the need to rush to the magistrate for prior approval. This provision will empower the police station and the AHTU to undertake swift action for conducting rescue operations, which will prevent further exploitation.

Prosecution of offenders, starting from recruiters, harbourers, transporters, financiers, abusers, exploiters, conspirators, abettors, among others has been a daunting task. Though there are several reasons and all of them cannot be addressed by way of a legislation, the new Bill makes positive and prospective effort in facilitating prosecution of offenders of what has assumed the dimensions of an  organised crime.

The presumption in respect of offences against children, women and the physically or mentally challenged people gives the prosecution adequate scope to ensure easy, fast and efficient disposal of complaints.  This will certainly bring certainty and speed in the delivery of justice. The Bill provides for freezing and confiscating of illicit assets, born out of trafficking crimes. This is indeed a landmark addition to the trafficking law.  Neither section 370 of the IPC or ITPA has any such provision.

The Bill is certainly an improvement over existing laws, including Section 370 of the IPC, which came in to effect only in 2013.  This section of the IPC defines trafficking and its derivatives but is silent on forced and bonded labour. The present Bill incorporates forced and bonded labour, surrogacy, false marriage and begging as aggravated forms of trafficking, and calls for enhanced punishment for offenders.

Linking research into action has never been a mandate in the legislative process for our country. However, this methodology has been adopted in several countries.  The fact is that objective research is paramount in understanding the gaps and identifying the solutions. We have a case in point where the NHRC undertook a national research in 2002-2004 on trafficking in India. The report, which came up in 2005, was adopted by the Government and many suggestions were implemented.

A joint project by the Ministry of Home Affairs and the United Nations Office on Drugs and Crime on capacity-building of fake holders in five States in India, during 2006-2008, was one among the important outcomes of the research.  The project made commendable achievements in the five States. After independent evaluation, the activities in the project were upscaled and replicated across the country, making positive changes in response systems. This experiment has established the value of research and the need for marriage of research with action.  It is heartening to note that the Bill has appreciated this point and has made express provision for survey and research contributing to action.

The Bill is, therefore, a magnificent and bold step in preventing, combating human trafficking in India, making the Constitutional mandate a reality.  The fine print of the Bill requires tweaking at certain places, which can be accomplished even during the process of passage.

(The writer, an international expert in the field of human trafficking, is now with the Tata Institute of Social Sciences, Mumbai as Chair Professor)

Writer: PM Nair

Courtesy: The Pioneer

A bill aimed at checking the menace of human trafficking and three others were introduced by the government in the Lok Sabha.

Amid the din of the no-confidence motion, the vituperative barbs and the trivialising wink, Parliament did manage to transact some positive worth for itself as the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill  was tabled. If passed, it will be one of the most comprehensive anti-trafficking laws in the world and will have the distinction of being democratically drafted by every stakeholder, expert, activist and affected quarter. Human trafficking is the third biggest nightmare after drugs and arms and when it comes to India, the largest sufferers have been sadly children, who have been used as cheap fodder for the sex trade and couriers for terror networks. Nobel laureate Kailash Satyarthi, who has been crusading for child rights, has been advocating a strong law against human trafficking for years now. According to estimates, every eight minutes a child goes missing in our country and in majority of the cases, he/she is trafficked for sexual abuse, prostitution, forced labour, slavery, child marriage, organ trade and other purposes. Such is the extent of the rights violations that the Supreme Court defined trafficking as an organised crime for the first time in 2011. So this legislation, when it comes through, would be a legal shield for the most vulnerable human resource of our country.

The Bill targets all aspects of human trafficking, including economic, organised and sexual crimes, and while demanding stringent punishment for the accused also provides for special fast track courts, time-bound action and separate inquiry offices for the purpose of ensuring privacy and fairness of investigations. It further includes an investigation framework for victims from national to district level. Many may argue that existing laws have teeth and provision enough for swift inquiry and disposal but are not enforced in spirit. However, this is the first Bill that includes a provision for a rehabilitation fund for the victims and suggests a mechanism by which they can be mainstreamed in society. Of course, there have been protests from sex works who have objected to the criminalisation clause and their voluntary right to work in the sex trade. The strident raid and rescue model, they feel, will affect the lives of sex workers, who already bear the brunt of police brutality. However, the Bill is a consultative process and will almost try to factor in everybody’s rights. But it needs to be passed in a time-bound manner nevertheless as currently we use different laws to deal with human trafficking cases depending on the facts of each. A unified, cogent law will take care of a vacuum that cannot be allowed to exist in society and, therefore, should not be politicised.

Writer: Pioneer

Courtesy: The Pioneer

India bequeathed an archaic law on same-sex relationship from the British.

A Supreme Court Bench headed by Chief Justice, Dipak Misra should finally rid India of that anachronistic law that criminalised all sex against the course of nature. Section 377 of the Indian Penal Code (IPC) was one of the parts of the penal code that originated from the Foreign and Commonwealth Office in London when India was still subjugated by the British. Entire tomes of laws for various dependencies were written on King Charles Street in London and the joke goes that as the laws were distributed by ship, Africa got them first, followed by India and then Australia. And here is the funny thing, Section 377 exists in the penal code of 42 nations across the world in one form or another but the section number remains the same. Not just in the nations that once consisted of British India but also vast swathes of British Africa and South-East Asia. This section which criminalised sodomy has led to the persecution of many people across the world for decades, primarily because they were men loving other men.

And even though the United Kingdom itself has removed the shackles of its own Victorian morality to become one of the most sexually and gender progressive nations in the world — though not without the persecution of many over the years including World War II cryptographer Alan Turing — some other westernised former colonies got rid of the provision as well — Australia, New Zealand, Fiji and Hong Kong. It is time that India now takes the lead in individual rights/privacy jurisprudence and rids herself of this provision. There is however going to be a problem in changing minds among a large proportion of the public whose world-views are still shaped by Victorian morals. Queen Victoria might have taken a lot of precious stones from India and she certainly bequeathed to us a bunch of stone-age views on so-called morality in return. Views that have not become so entrenched in nations like India that there are people who with a straight face can argue that homosexuality is not just a sin, but against ‘our cultural norms’.

While this columnist will be the first to admit that he is confused by the expanding number of sexualities and gender-identities today, on a very simple basis, same-sex love is not an aberration or a disease like some claim it to be. It has been around in human history for a really long time, the ancient Greeks of course famously celebrated it, but even in some of Hinduism’s older texts India has had a long established tradition of a third gender. Interpretations are still being made on the role of this third gender as an object of sexual desire; however homosexuality, or love between men, has been a reality in India from the ancient Hindu kingdoms through the Mughal court.

However, one has to disagree with those who believe that social stigma towards Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community will disappear overnight thanks to the stroke of a judge’s pen, they have an inflated opinion of the power of the judiciary. Nothing will change overnight among people who grew up pre-1991; and 1991 is the watershed because it was not just economic reforms that came to India but it was also when India’s lowered her cultural barriers and satellite television began broadcasting Western soft-culture. There is today a large acceptance of homosexuality among the erudite, educated English-speaking population of India. But that does not mean that others do not continue to see homosexuality as a threat to their religious values and also propagate crazy and discredited theories about homosexuality being a disease that can be cured. Sadly, there will continue to be hate and violence directed towards the LGBTQ communities, even if Section 377 is struck off or read down and this must be addressed through legal means every single time.

Hate should not be allowed and the most important thing is education. That too will not happen overnight. We will need to build that acceptance of homosexuality in India. Possibly when a famous personality in sports, Bollywood or politics comes out openly will things be seen to be changing. And even though a couple of Bollywood personalities have all but admitted their sexual orientation, the fear of Section 377 and its potential for misuse, especially in a country where busybodies love filing irrelevant cases for media attention and a police force willing to go along, does call for being careful.

The Supreme Court is not looking at the issues of relationships and inheritance. This will need to be legislated, and even social progressives in India should realise that legalising gay marriage may be a step too far in today’s environment. Social changes are occurring in India and the gradual acceptance of homosexuality as a fact of life by the public at large is taking place. This will need to continue for a while. Gay marriage has been a hot-button topic in many western societies as well; in Australia it became a major electoral issue and many countries have resolved this using a referendum. In India, however, there will need to be legislation. But if we are to move towards an Uniform Civil Code, any new marriage act, which should use the Special Marriage Act as its basis, should not differentiate between genders as well.

Writer: Kushan Mitra

Courtesy: The Pioneer

India bequeathed an archaic law on same-sex relationship from the British.

A Supreme Court Bench headed by Chief Justice, Dipak Misra should finally rid India of that anachronistic law that criminalised all sex against the course of nature. Section 377 of the Indian Penal Code (IPC) was one of the parts of the penal code that originated from the Foreign and Commonwealth Office in London when India was still subjugated by the British. Entire tomes of laws for various dependencies were written on King Charles Street in London and the joke goes that as the laws were distributed by ship, Africa got them first, followed by India and then Australia. And here is the funny thing, Section 377 exists in the penal code of 42 nations across the world in one form or another but the section number remains the same. Not just in the nations that once consisted of British India but also vast swathes of British Africa and South-East Asia. This section which criminalised sodomy has led to the persecution of many people across the world for decades, primarily because they were men loving other men.

And even though the United Kingdom itself has removed the shackles of its own Victorian morality to become one of the most sexually and gender progressive nations in the world — though not without the persecution of many over the years including World War II cryptographer Alan Turing — some other westernised former colonies got rid of the provision as well — Australia, New Zealand, Fiji and Hong Kong. It is time that India now takes the lead in individual rights/privacy jurisprudence and rids herself of this provision. There is however going to be a problem in changing minds among a large proportion of the public whose world-views are still shaped by Victorian morals. Queen Victoria might have taken a lot of precious stones from India and she certainly bequeathed to us a bunch of stone-age views on so-called morality in return. Views that have not become so entrenched in nations like India that there are people who with a straight face can argue that homosexuality is not just a sin, but against ‘our cultural norms’.

While this columnist will be the first to admit that he is confused by the expanding number of sexualities and gender-identities today, on a very simple basis, same-sex love is not an aberration or a disease like some claim it to be. It has been around in human history for a really long time, the ancient Greeks of course famously celebrated it, but even in some of Hinduism’s older texts India has had a long established tradition of a third gender. Interpretations are still being made on the role of this third gender as an object of sexual desire; however homosexuality, or love between men, has been a reality in India from the ancient Hindu kingdoms through the Mughal court.

However, one has to disagree with those who believe that social stigma towards Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community will disappear overnight thanks to the stroke of a judge’s pen, they have an inflated opinion of the power of the judiciary. Nothing will change overnight among people who grew up pre-1991; and 1991 is the watershed because it was not just economic reforms that came to India but it was also when India’s lowered her cultural barriers and satellite television began broadcasting Western soft-culture. There is today a large acceptance of homosexuality among the erudite, educated English-speaking population of India. But that does not mean that others do not continue to see homosexuality as a threat to their religious values and also propagate crazy and discredited theories about homosexuality being a disease that can be cured. Sadly, there will continue to be hate and violence directed towards the LGBTQ communities, even if Section 377 is struck off or read down and this must be addressed through legal means every single time.

Hate should not be allowed and the most important thing is education. That too will not happen overnight. We will need to build that acceptance of homosexuality in India. Possibly when a famous personality in sports, Bollywood or politics comes out openly will things be seen to be changing. And even though a couple of Bollywood personalities have all but admitted their sexual orientation, the fear of Section 377 and its potential for misuse, especially in a country where busybodies love filing irrelevant cases for media attention and a police force willing to go along, does call for being careful.

The Supreme Court is not looking at the issues of relationships and inheritance. This will need to be legislated, and even social progressives in India should realise that legalising gay marriage may be a step too far in today’s environment. Social changes are occurring in India and the gradual acceptance of homosexuality as a fact of life by the public at large is taking place. This will need to continue for a while. Gay marriage has been a hot-button topic in many western societies as well; in Australia it became a major electoral issue and many countries have resolved this using a referendum. In India, however, there will need to be legislation. But if we are to move towards an Uniform Civil Code, any new marriage act, which should use the Special Marriage Act as its basis, should not differentiate between genders as well.

Writer: Kushan Mitra

Courtesy: The Pioneer