[Editorial # 56] Hope floats again on Section 377 : The Hindu

[Following editorial has been published in The Hindu on 3rd February 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

Section 377 of the Indian Penal Code, which criminalises gay sex, reflects only medieval prejudice. A lost opportunity to invalidate it has been dramatically resurrected. Two years ago, the Supreme Court declined to review its retrograde decision of 2013 upholding the validity of Section 377. By rejecting the review petition, the court then failed to make use of an opportunity to revisit the contentious Suresh Kumar Koushal verdict and bring the law in line with its own vision of fundamental rights, especially the idea that equality and dignity cannot be denied to any section. The court has now paved the way for a comprehensive hearing on how to protect the dignity and rights of individuals with alternative sexual orientation by referring the matter to a five-judge Constitution Bench. The Chief Justice has noted that the case involves questions with constitutional dimensions. The court has indicated that the larger Bench could traverse beyond the limits of a curative petition, which is essentially a limited, additional remedy to aggrieved litigants after the Supreme Court’s final verdict and the rejection of a review. There is new hope that the Delhi High Court judgment of 2009, reading down Section 377 to restrict its criminal import to non-consensual sexual acts involving adults and all sexual acts inflicted on minors, may be restored.

The latest challenge to its continuance on the statute book comes in a fresh context where the intervening years have seen considerable legal progress in the jurisprudence of sexual orientation and gender identity. In April 2014, while recognising the transgender community as a third gender entitled to the same rights and constitutional protection as other citizens, a Bench of the Supreme Court subtly recorded its criticism of Koushal. Departing from the Koushal formulation that there was no evidence that Section 377 was an instrument of harassment, the Bench had highlighted the misuse of the provision as one of the principal forms of discrimination against the transgender community. Further, it observed that “even though insignificant in numbers”, transgenders were entitled to human rights. That was obviously a rebuttal of the earlier Bench’s claim that those affected by Section 377 were only a “minuscule fraction of the population”, as though the relative smallness of a group’s size disentitled it from constitutional protection. On the global front, the United States Supreme Court held last year that the gay community was entitled to due process and equal protection in the matter of marriage, thus allowing same-sex marriages. In view of these developments, the time has come for an honest judicial evaluation of where India stands on the issue of homosexuality. Some may argue that it is up to the legislature to remedy the situation. In the backdrop of a provision that continues to have criminal and public health consequences for a section of society, the court has a duty to enforce their fundamental rights rather than wait for the political class to come up with a legislative remedy.

Questions:

1. Explain the following terms:

Review petition

Curative petition

2. Write a short note on Sec 377 of Indian Penal Code.

3. What is Indian Penal Code? When was it codified?

4. Why is the current case being referred to a larger bench? Mention a few instances from the past when similar such referrals have been made.

5. What are the various stands taken by different countries on homosexuality?

6. What are the various arguments given in favour of and against homosexuality in terms of its acceptability in Indian society?

7. Comment on the social conditions when IPC Sec 377 was enacted and its relevance in modern day Indian society.

8. Do you think Parliament has failed to protect the rights of LGBT community and the highest judiciary is well within its Constitutional mandates to protect their rights? Explain with examples how the Indian judiciary has played a role in bridging the legislative gaps left by the Parliament.

[Editorial # 55] Towards a law on euthanasia : The Hindu

[Following editorial has been published in The Hindu on 2nd February 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

The time for legislation to deal with euthanasia has come. The Union government has now informed a Constitution Bench of the Supreme Court that its experts are examining a draft Bill proposed by the Law Commission in its 241st report. However, it has been advised by the Law Ministry to hold back its enactment now, as the matter is pending before the court. Over a decade ago, the government felt that legislation on euthanasia would amount to doctors violating the Hippocratic Oath and that they should not yield to a patient’s “fleeting desire out of transient depression” to die. The government’s latest stand represents forward movement in the quest for a legislative framework to deal with the question whether patients who are terminally ill and possibly beyond the scope of medical revival can be allowed to die with dignity. The question was raised with a great deal of passion in the case of Aruna Shanbaug, a nurse who lay in a vegetative state in a Mumbai hospital between 1973 and 2015. In a landmark 2011 verdict that was notable for its progressive, humane and sensitive treatment of the complex interplay of individual dignity and social ethics, the Supreme Court laid down a broad legal framework. It ruled out any backing for active euthanasia, or the taking of a specific step such as injecting the patient with a lethal substance, to put an end to a patient’s suffering, as that would be clearly illegal. It allowed ‘passive euthanasia’, or the withdrawal of life support, subject to safeguards and fair procedure. It made it mandatory that every instance should get the approval of a High Court Bench, based on consultation with a panel of medical experts.

The question now before a Constitution Bench on a petition by the NGO Common Cause is whether the right to live with dignity under Article 21 includes the right to die with dignity, and whether it is time to allow ‘living wills’, or written authorisations containing instructions given by persons in a healthy state of mind to doctors that they need not be put on life-support systems or ventilators in the event of their going into a persistent vegetative state or state of terminal illness. The government’s reply shows that the Directorate-General of Health Services has proposed legislation based on the recommendations of an Experts’ Committee. The experts have not agreed to active euthanasia because of its potential for misuse and have proposed changes to a draft Bill suggested by the Law Commission. However, there seems to be no support for the idea of a ‘living will’, as the draft says any such document will be ‘void’ and not binding on any medical practitioner. It is logical that it should be so, as the law will be designed specifically to deal with patients not competent to decide for themselves because of their medical condition. This has to be tested against the argument that giving those likely to drift into terminal illness an advance opportunity to make an informed choice will help them avoid “cruel and unwanted treatment” to prolong their lifespan. To resolve this conflict between pain and death, the sooner that a comprehensive law on the subject is enacted, the better it will be for society.

Questions:

1. What is meant by Euthanasia? What is its history? 

2. What are its various types of Euthanasia? 

3. Is Euthanasia legal in India? Which countries in the world have legalised it?

4. What is a Constitutional Bench of Supreme Court? For what reasons is such a bench constituted? Explain with examples.

5. What is Law Commission? How is it constituted? Is it a Constitutional body?

6. What are the ethical concerns related to Euthanasia? 

7. What are the various pros and cons of legalising Euthanasia? 

8. What is an NGO? Under which law/s NGOs are formed? What are the roles of NGOs? Give examples.

9. Do you think Euthanasia falls under the ambit of Art 21 of the Constitution of India? Justify.

[Editorial # 54] Gujarat must give up terror bill : The Hindu

[Following editorial has been published in The Hindu on 1st February 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

Gujarat should give up its persistent efforts to get the controversial Gujarat Control of Terrorism and Organised Crime Bill, 2015, approved by the President. First moved by Narendra Modi in 2003 when he was Chief Minister of the State, the Bill has been facing objections on the ground that it contains some draconian provisions. The Centre refused to clear the Bill three times when the United Progressive Alliance was in power. The Union Home Ministry has now recalled the Bill from the office of the President, to whom it had been sent for assent. The reason appears to be that it wants the Bill to be reworked based on additional inputs from the State government. The controversial nature of the GCTOC Bill became apparent after A.P.J. Abdul Kalam as President objected to a clause that made evidence based on interception of communication admissible in court. His successor, Pratibha Patil, too declined assent. In March 2015, the Assembly passed the Bill and sent it afresh to the Centre for presidential assent. The Centre ultimately prevailed in having the clause that permitted the State Home Secretary to authorise the interception of telephone calls on his own dropped. Under the Indian Telegraph Act, State Home Secretaries do authorise telephone taps, but using power delegated to them by the Centre. The watered-down Bill was sent last September to the President for his assent. It has been recalled now, possibly because of fears that President Pranab Mukherjee might refuse assent again.

India’s repeated experiments with anti-terrorism laws have been, by and large, unsuccessful. The Terrorist and Disruptive Activities (Prevention) Act, 1985, a law considered as draconian as the Rowlatt Act of the colonial era, and its latter-day version, the Prevention of Terrorism Act, 2003, had been allowed to lapse after it was found that they were prone to persistent misuse. However, with the substantive amendments made to the Unlawful Activities (Prevention) Act in 2012, the country does have an effective law to curb modern-day terrorism. The Gujarat law is modelled on the Maharashtra Control of Organised Crime Act, but that does not make it any more acceptable. The Maharashtra law itself has not achieved any remarkable success in curbing organised crime. When it was invoked recently in a cricket spot-fixing case in Delhi, it failed miserably during trial, demonstrating how such laws can be reduced to a mockery through improper application. The GCTOC Bill also has provisions similar to earlier anti-terrorism laws, such as making confession to a police officer of the rank of Superintendent of Police admissible in court, and allowing 180 days, instead of the usual 90, for the filing of a charge sheet. There is really no need for more State-level laws of such a nature. Police investigators need better resources and training to combat organised crime and terror, and not laws that abridge and modify conventional criminal procedure to the detriment of human rights.

Questions:

1. What are the provisions of Gujarat Control of Terrorism and Organised Crime Bill, 2015 which are being considered "draconian" by the editor?

2. How can a bill passed by a State Assembly be held back by the Union Government? What are the constitutional provisions related to it?

3. Do you think reserving the bills passed by the state assemblies for Presidential assent goes against the principles of federal polity? Explain.

4. What powers of the Viceroy pertaining to bills passed by legislative assemblies during the pre-independence era went against the democratic principles? How are the current legislative powers provided to the President which are similar/dissimilar to those of the Viceroy?

5. What are the various features of Indian polity which go against the philosophy of federalism?

6. What are the various anti-terrorism laws enacted in the past by Parliament and State Assemblies? 

7. Evaluate the success of various Anti-Terrorism laws in meeting their intended objectives.

8. What is Rowlatt Act? What was the response of Indian nationalist leaders against it?

9. What are the various anti-terrorism mechanisms established by India to address the menace of terrorism? 

10. What do you mean by Organised Crime? What are various types of Organised Crime?

11. It is generally alleged that the various anti-terrorism acts enacted by the Parliament and State Assemblies have certain provisions which violate human rights. Do you agree? Justify