The Tribune, Chandigarh, India

ARTICLE

Challenges in dealing with US
Threats of sanctions on Indian exports
G. Parthasarathy

Faced with criticism from an assertive Republican Party, President Obama also faces a credibility deficit in his conduct of foreign and security policies. He is widely depicted as being “weak” on issues of national security and foreign policy. The insensitive handling of relations with India is symbolic of the malaise which afflicts his second term. In fairness, allegations of his being "weak" and “indecisive” are somewhat uncharitable. He faces accusations that he should have resorted to military force in Syria and beefed up the NATO alliance after the Russian actions in Crimea. He is also accused of being “weak” and vacillating in the face of Chinese military pressures against allies like Japan, the Philippines and South Korea. But at the same time, he cannot ignore public weariness at recent military misadventures and the loss of many American lives in Iraq and Afghanistan.

In a larger perspective, the American establishment has yet to come to terms with the reality that unlike the years immediately after the collapse of the Soviet Union, the world order today is more democratised and no longer unipolar. An American military involvement in Syria would have resulted in a takeover of the country by Al Qaida-linked Salafi extremists. Obama acted wisely by listening to Russian advice on the subject, but then sought to undermine Russian influence in Ukraine, resorting to not so covert and clumsy means. He found that while right wing Ukrainian mobs could forcibly take over the capital Kiev, they inevitably provoked President Putin to retaliate in the Russian-dominated eastern Ukraine. The reintegration of Crimea with the Russian federation and the takeover of cities in eastern Ukraine with large Russian populations by armed Russian resistance inevitably followed. Moreover, Americans constantly threatening sanctions nowadays sound reminiscent of the boy who cried “wolf” too often!

Similar bungling has characterised the Obama Administration's dealings with China’s growing assertiveness. After objecting to China's unilateral declaration of an Air Defence Identification Zone (ADIZ), the Obama Administration meekly asked all its civilian airlines to bow to Chinese demands on the ADIZ. Shockingly, this came just after Japan and South Korea refused to fall in line with the Chinese demand. Moreover, while Tokyo has reacted strongly to Chinese transgressions of international law close to the disputed Senkaku Islands, which have been controlled by Japan since 1895, the US has spent time on counselling "restraint" on Japan and nitpicking on issues pertaining to the Yasukuni shrine.

The US has stood by silently as the Chinese have used force to militarily take over the Mischief Reef, located well within the Philippines Exclusive Zone and the Scarborough Shoal. With Indonesia now joining other affected ASEAN countries to challenge China's exaggerated claims on its maritime borders, American credibility, in the Asia Pacific, is being called into question. Relations with India have also entered into a tailspin in the second Obama Administration, after John Kerry took over as Secretary of State. In the days of Hillary Clinton the State Department engaged in a robust dialogue with India on the Asia-Pacific. Under Kerry's watch, this dialogue has been virtually discontinued.

Differences between India and the US have also arisen over approach to developments in Bangladesh. India's relations with Bangladesh have been excellent ever since the Awami League Government headed by Sheikh Hasina assumed office five years ago. Apart from earmarking significant economic assistance, including transmission lines for the supply of electricity from India, New Delhi acted swiftly to help when a mutiny by members of the paramilitary in Bangladesh spilled across the border. Bangladesh, in turn, forced out of Bangladesh members of Indian insurgent groups, which enjoyed the support of her rival Begum Khaleda Zia and her Islamist allies. Differences with the US widened after the Americans, unlike Russia, China and virtually all Asian powers, ignored the fact that the boycott of the recent elections by Khaleda Zia and her Islamist allies like the Jamat e Islami was unconstitutional and that the elections held in Bangladesh were valid constitutionally. There have been similar differences over the approach to the ethnic issue in Sri Lanka where the US has chosen to act unilaterally in the UNHRC, ignoring the perspectives of India and virtually all its Asian neighbours.

The atmosphere of India-US relations has soured after the Devyani Khobragade affair. While the US Ambassador and her colleagues cannot escape blame for being disastrously wrong in assessing what India's reaction would be to the handcuffing and arrest of an Indian diplomat, it would be wrong to presume that action was taken without the approval of the Secretary of State. Worse still, there seems to have been total lack of coordination and sensitivity. When just after the US Ambassador called on Mr. Narendra Modi, the State Department announced that there was no change in their position on the denial of a visa to the prime ministerial candidate. Moreover, one cannot but feel outraged when Sonia Gandhi is summoned in a politically motivated case by a US Court, when reportedly undergoing medical treatment in the US. This, after former ISI chief Shuja Pasha was granted diplomatic immunity by Senator Kerry, when charged with involvement in the 26/11 terrorist attack.

The US is India's most important and largest trading partner. Annual trade in goods and services is $120 billion. But this relationship now faces challenges from threats of sanctions on Indian exports in the crucial pharmaceutical sector, issues of solar energy, visas for IT professionals, taxation issues and Intellectual Property Rights. India's Ambassador in Washington S Jashankar recently noted: “The sensible thing to do is to switch to the problem-solving mode. There has to be public acceptance that there is a context in which we both operate. If tax issues loom large in the business relationship, let us not forget that enhancing revenue is not a goal of the Indian government alone. The pharmaceutical field has emerged as another field of contention. Details apart, the underlying reality is, that affordable health care cannot be the prerogative of a few”.

MIDDLE

When I met Khushwant Singh
Mukul Bansal

I met Khushwant Singh in the late 1980s at his house in Sujan Singh Park, New Delhi. As a student, I used to avidly read his column, “With malice towards one and all”, with KS sitting inside a bulb — the famous Mario Miranda cartoon — with books, yards of writing paper, a bottle of wine and a curvaceous woman.

I liked KS's chatty style of writing and the light and scholarly subjects he would write on regularly, his favourite being “Whether God exists”. He would pop the profound question and run for cover because thousands of believers would react angrily. KS's way of getting out of the soup would be to declare that he was an agnostic and that he had no proof of God's existence.

I first came into contact with KS when I sent two of my poems in English to him. I was studying in Delhi University. I asked for KS’s “brutally frank” opinion. “Rubic's Cube" and “Come to Ifshaan” were the titles of my poems. A few days later I received KS’s hand-written reply on a postcard: “Both of your poems read well. You should try and get them published.” I never tried it but my respect for the amiable man grew.

The second time I wrote to KS was when Alliance Francaise in New Delhi invited people for the screening of French films around the same time and there was nothing but inconvenience for the visitors when the screening was called off. Angry at this mismanagement, I wrote a minute-by-minute account of the happenings to him, hoping that it might find a brief space in his weekly column. Nothing of the sort happened! Instead KS again sent me a post card that brought some relief to me: “I was amused by your account of your frustrations. The French are notoriously the most ill-mannered of the civilsed nations — worse than Hong Kong Chinese and Arabs. I have lived in France some years — good food, wine and amenable women — but men absolute bastards.”

The only time I met Khushwant Singh in person was when the Sunday Mail (now extinct) sent me to discuss with him “Reading habits of people”. When I entered his room he was sitting in a chair and had his legs comfortably placed on a ‘murrah’ turned sideways, his usual pose.

After an introduction, he warmed up to the discussion and said, “The reading habit is not going up as much as it should. The crux of the problem so far as India is concerned is that the readers’ knowledge is restricted because of their obsession with religiosity. It has constricted people’s want to what they call 'good books' which preach and moralise.”

“Not many Indians indulge in book buying mainly because books have become so expensive”, he said and added “Rich people’s homes are healthily clear of books. I hardly ever see a book in their homes. You see a lot of magazines or they may have an ornamental shelf devoted to Encyclopaedia Britannica which is never touched.”

We finished off at this point because KS had another appointment. God bless his soul!

OPED-LAW

Social and legal status of the third gender
Provisions of the much-debated and dreaded Section 377 are couched in the most neutral language, without making specific reference to a category of persons. That a certain category of people are criminalised under the section, despite its gender-free use of terminology, is due to its interpretation that does not follow the golden rule of literal construction
Virendra Kumar

Gender issue has finally been released from the clutches of majority; of the limitation of male and female sex. Society has finally acknowledged the existence of a third gender, through the legal route. The Supreme Court judgment of April 15, 2014, in National Legal Services Authority vs Union of India and others (per K.S. Radhakrishnan and A.K. Sikri, JJ.) has been hailed as ‘historic.’ It recognises the transgender community (Hijras, eunuchs, apart from binary gender) as “third gender” and securing them the constitutional protection of fundamental rights as guaranteed to all other socially and educationally backward classes of citizens. It also entitles them “to decide their self-identified gender” by specifically directing the Centre and state governments “to grant legal recognition of their gender identity such as male, female or as third gender.” In order to make them “feel that they are also part and parcel of the social life and be not treated as untouchables,” the Government is duty bound to address the problems being faced by them “such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma.”

After the Supreme Court recognised the third gender, the long-marginalised transgender community has gained an identity. Photo Reuters

Impact of the court’s verdict

There is yet another significant consequential impact of the Supreme Court judgment. It takes out the transgender out of the class of persons of the same genus, who are conventionally classified as LGBT (Lesbians, gays, bisexual, transgender), and colloquially called ‘homosexuals.’ This simple quirk of the Supreme Court judgment has given rise to a legitimate expectation that the left-out others should also be entitled to the same constitutional fundamental protection and privileges as has been granted to the transgender. In fact, it is this sentiment that finds an echo in the observation of the United Nations when it is said: “The historic ruling by India’s Supreme Court to legally uphold rights of transgender people raises hopes that the court will now review its earlier decision upholding a 160-year-old provision of the penal code criminalising consensual, same-sex relationships.”

Here, the reference is to an earlier judgment of the Supreme Court in Suresh Kumar Koushal and another vs. NAZ Foundation and others (delivered on December 11, 2013), that upheld the constitutionality of Section 377 by reversing the decision of the Delhi High Court, inasmuch as it proscribes ‘homosexuality’.

Reversal of judgment

The Supreme Court in its reversal judgment disapproved the stance of the Delhi High Court by taking the plea that the percentage of the affected community is very minuscule. The judgment observes, “While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexual or transgender (LGBT) and in the last more than 150 years, less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 and this cannot be made sound basis for declaring that Section ultra vires (unconstitutional), provisions of Articles 14, 15 and 21 of the Constitution.”

In order to examine the rationale of this decision, especially in the light of the latest judgment of the Supreme Court in respect of the transgender, we need to revisit the provision of Section 377 of the IPC afresh,

What is Section 377?

Section 377 provides: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.” In the appended explanation, it is clarified that “penetration” is sufficient to constitute carnal intercourse necessary to the offence described in this section.

On the basis of literal construction, which, indeed, is the golden rule of interpretation, this provision is couched in the most neutral language without making any reference to any specific category of persons, who are criminalised. The neutralising impact is vivid and clear by the use of the opening term, “whoever,” which is gender-free. This provision simply defines which of the acts of the doer bear criminal consequences, with least reference to any specific category of persons or group of persons to be indicted or arraigned. If so, then where is the occasion for holding that Section 377 of the IPC criminalises lesbians, gays, bisexual or transgender!

Obscenity and unnatural offence

Section 377 of IPC, which deals with “unnatural offences” (the offences “against the order of nature”), is located in Chapter XVI of the Indian Penal Code that carefully clusters Sections (Sections 299-377) directed to deal with “Offences affecting human body.” This Section, as such, has nothing to do with offences affecting the public health, safety, convenience, decency or morals, which are clearly and categorically covered under Chapter XIV (Sections 268-294), of course, with lesser degree of criminality. Obscene act in any public place, for instance, entails punishment with imprisonment of either description for a term which may extend to three months, or with fine or with both (Section 294).

By clear implication, therefore, the issues of violation of culture and tradition, laying down the norms of decency or morality, are outside the pale of Section 377. The singular objective of this arraigned provision is to deal sternly with cases in which “unnatural offences” result in “affecting human body” although the carnal intercourse intended to be in privacy of the home and with mutual consent remain outside the purview of Section 377.

Ambiguity of the Section

The pivotal expression, ‘against the order of nature,’ in the provision of Section 377 has nowhere been defined under the Indian Penal Code. How come Lord Macaulay could make such a glaring omission, who is otherwise credited to have crafted a Penal Code for Indians, which is so complete in itself that we could not venture to replace it till date, after more than 150 years of its existence!

A peep into the history of ‘offences against the body,’ including the ‘unnatural offences’ under Section 377, reveals the reason for persistent ambiguity. In Note M of the Introductory Report of Lord Macaulay to the Draft Code on Offences Against the Body betrays that such offences as ‘offences against the body’ “relate to an odious (repulsive) class of offences respecting which it is desirable that as little as possible be said.” “We are unwilling to insert, either in the text, or in the notes, anything which could have given rise to public discussion on this revolting subject; as we are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

It is this absence of legislative exposition of ‘unnatural offences’ that has led the courts, we may venture to suggest, to treat lesbians, gays, bisexuals or transgender as criminals, falling in the category of persons who voluntarily have sexual intercourse ‘against the order of nature.’ This, indeed, is not right. Such an interpretation of Section 377, in our view, is fallacious, at least for two separate and distinct reasons. One, sexual orientation of LGBT community is not ‘against the order of nature.’ According to mental health professionals, who have been practicing as psychiatrists, clinical psychologists and behavioural psychologists in reputed medical institutions the world over, and who claim to have considerable expertise in addressing the mental health concerns of LGBT, hold the view that their sexual orientation is an “immutable characteristic and is present at birth,” and, therefore, fall outside the ambit of Section 377. Two, the provision of criminality would be attracted only if the unnatural offence has resulted in ‘affecting human body’ and not otherwise.

Violating fundamental rights

The issue of constitutionality of Section 377 of the IPC came to the fore before the Delhi High Court in 2009 when the sex orientation of LGBT, implying penile-non-vaginal sex relations, was perceived to be ‘unnatural’ by the dominant members of society and the law enforcement agencies of the State, who labelled them as criminals under Section 377. In precipitant form, the question to be answered was whether Section 377 was in violation of fundamental rights guaranteed under the Constitution.

The High Court of Delhi declared that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is in violation of fundamental rights under Article 21 read with Articles 14 and 15 of the Constitution. In special leave to appeal, the Supreme Court reversed the decision. It is the rationale of this decision that requires a review.

Rights of the minority

The criminalisation of LGBT under Section 377 of the IPC deeply affects their right to dignity, identity, privacy and equality, which is otherwise guaranteed to them under the Constitution like any other citizen of India. However, their being in minority, constituting “miniscule fraction of the country’s population,” is no ground of denial of fundamental rights to them. In fact, in a democratic constitutional system of government, minority rights need to be protected with added special care and concern.

Moreover, once the Supreme Court has recognised in National Legal Services Authority (2014) that any denial of fundamental rights to the transgender is a clear violation of the basic norms of the Constitution, there remains no rationale for not extending the same constitutional protection to other ‘homosexuals,’ namely, lesbians, gays, and bisexuals.

Reconsidering law

Section 377 of the IPC, so far as it criminalises homosexuals requires reconsideration. It needs reinterpretation so that it becomes constitutionally consistent and in conformity with the emerging human rights jurisprudence. There is no constitutional morality which permits the majority to impose their own notions of right and wrong on the community of minorities, howsoever feeble in number they might be.

Once we are willing to ratify and adopt various international conventions, such as the Universal Declaration of Human Rights (1948) and International Covenant on Civil and Political Rights and European Convention on Human Rights, and make them the basis for evolving new human rights perspectives in the interpretation of our own Constitution, why should there be any reluctance when the most recent judgment of the Supreme Court and also the decisions of the courts in other jurisdictions persuade us to annul the obsolete provision of Section 377 of the Indian Penal Code of 1860? Its continued criminalisation of homosexuals is an open invitation to perpetuate discrimination and reinforce societal prejudices held for long.

Looking back

* When IPC was framed, it was a ‘cutting edge’ expression of modern law. That was in 1860.

* In July 2009, a judgment by the Delhi High Court held Section 377 constitutionally invalid thereby legalising gay-sex.

* The culmination of 12-year-long gay rights activism stressed that Section 377 violated article 14 of the Indian Constitution which recognises every citizen as equal in the eyes of law.

* In December 2013, a Supreme Court verdict upheld Section 377. The judgment was termed as “outrageous”, “insensitive” and “disappointing” by a large community
of people.

The writer is former Professor and Chairman, Department of Laws, Panjab University Chandigarh, and UGC Emeritus Fellow in Law.