Tag: Constitution of India

Consenting adults and law

There are people who say what consenting adults do in private should not be covered by law. This is mainly in reference to Section 377 of IPC which is under litigation in Supreme Court.

By that logic prostitution, sale and purchase of narcotics and psychotropic substances and illicit liquor, corruption, polygamy, transmission of pornographic material and many others matters that take place between consulting adults will be out of the scope of law. Drug traffickers can claim they have right to life and liberty to sell heroin, marijuana and such things to consenting adults in private and they have right to equality. The state will have no right to legislate on marriage, divorce, alimony and child custody. Also concubinage, live-in relationship and palimony will be out of the legal purview.

What happens if a man who is married does not reveal his marital status and marries another woman? What happens if a woman has sex with a man because he promises her something and later he does not keep his promise?

What about doctors and parents who after sex determination test terminate the pregnancy of a foetus knowing it is female? India’s sex ratio is going down. Medical termination of pregnancy is not a crime. Female foeticide is a crime.

Some blame Thomas Macaulay for everything what they claim is wrong with India including Section 377 of IPC. Thomas Macaulay came to India in 1834 and left India in 1838. IPC was promulgated in 1860.

Some give examples of Khajuraho and Ajanta-Ellora as examples of Indian culture and civilization. It is like saying Jarawa women who do not cover their breasts as representative of all Indian women. Khajuraho and Ajanta-Ellora are exceptions. If what they show is a sample of what is Indian then all temples would have shown them.

A vociferous minority supported by sections of media attacks people who stand for heterosexuality. Those who speak of freedom of speech criticize Ghulam Nabi Azad and Baba Ramdev when they exercise their freedom of speech.

Some wrongly speak of gays and lesbians being married and having children. They are bisexuals. There is nothing hereditary being gay. If someone is gay he would not have had children.

It is not for judges to declare what should be the law. Their job is to deliver judgment as per law. Judges who cross their limits do lot of damage.

It is wrong to call gays and lesbians a minority. Minorities are either ethnic, or religious or linguistic. All types of criminals can claim they are a minority. Terrorists can claim they are a minority doing a noble job but misunderstood by the majority. Bandits can claim they are a minority.

If Supreme Court judges do not know what is sex according to order of nature it is penile vaginal intercourse. Terms like unnatural sex have definite meanings acquired over the years. It is not for judges to change the meanings. It is for legislatures to change the law.

The government of India wants to run with the hare and hunt with the hound. On 23/2/2012 Additional Solicitor General P. P. Malhotra told the Supreme Court Bench comprising Justices G. S. Singhvi and J. S. Mukhyopadhyay “The issue whether to retain or not to retain Section 377 IPC was considered by the Law Commission of India in its 42nd report and it observed that Indian society by and large disapproves of homosexuality and disapproval was strong enough to justify it being treated as a criminal offence even when adults indulge in it in private.” About privacy he said “Whose privacy is being disturbed? Nobody’s privacy is being disturbed. Privacy is not an absolute right and is always subject to restriction. It is an offence.” Then home ministry came out with a press release that the government is neutral on the issue. It had asked Attorney General to assist the Supreme Court. May be if Shahi Imam or head of Darul Uloom wants to retain Section 377 as it is the government will take a stand in favour of retention.

No Lokpal

On 29/12/2011 Rajya Sabha was to vote on the Lokpal and the Lokayuktas Bill, 2011. It was adjourned sine die without vote. Parliament was called to sit on 27, 28 and 29 of December 2011 to pass Lokpal Bill. Lok Sabha passed it. Rajya Sabha did not.

Winter session was supposed to end on 22/12/2011. Anna Hazare had announced his three days fast beginning on 27/12/2011 if the bill had not been passed by then and thereafter three days of jail bharo andolan. If the Parliament passed Lokpal Bill by 22/12/2011 India Against Corruption would have observed gratitude day and held thanksgiving party on 27/12/2011. Winter session saw many disruptions and waste of many days. Many parties changed their positions on Lokpal Bill. There were 17 dissent notes in the standing committee report. There was all party meeting.

Anna Hazare’s fast was supposed to take place at Azad Maidan. It was shifted to MMRDA Grounds. Three government agencies had objected to fast at Azad Maidan. Anna Hazare’s health was not good. He had fever. India Against Corruption expected large crowds on 27/12/2011. That did not take place and many people called it flop show. Azad Maidan would have been a better place. Being close to Churchgate station many people would have come there during the day.

Lok Sabha passed Lokpal Bill as the government wanted and not as Anna Hazare Group wanted. Lok Sabha did not pass constitution amendment bill giving constitutional status to Lokpal as the votes in favour of amendment did not reach the half way mark. Congress blamed BJP. BJP said Congress should look within itself and 16 Congress MPs were absent. Sushma Swaraj said it was not for BJP to fulfil Rahul Gandhi’s dream of constitutional status to Lokpal.

On 28/12/2012 at 6 p.m. Anna Hazare called off his fast and jail bharo andolan. Around two lakh people had registered to go to jail. The MPs were jubilant. They were under no pressure.

Now TMC changed course. It had voted for the bill in Lok Sabha. It now wanted amendments to the bill. It wanted references to Lokayuktas deleted. It claimed it did not know about Lokayuktas. The bill was the Lokpal and the Lokayuktas Bill, 2011. TMC had a member in the standing committee. It had a cabinet minister and the bill was discussed in cabinet. The bill was given to MPs on 22/12/2011. It was discussed in all party meeting. To say TMC members did not know about references to Lokayuktas in the bill is not credible. TMC moved amendments in Rajya Sabha.

As per one report there were 203 amendments, another report said 187. Suddenly there was lot of talk of federalism. There was not much talk of ending corruption. The government did not have the numbers to pass the bill in Rajya Sabha. It did not agree to extend the session beyond midnight. The house adjourned. The purpose of extension of winter session was not served.

Pawan Kumar Bansal said the government wanted time to go through 187 amendments. That was misleading as some amendments were counted multiple times as for example “Delete clauses 66-97” was considered 32 amendments. Congress should have put the bill to vote. It did not have the numbers and it would not have been blamed for failure. The government would not have fallen if the bill was defeated.

Hamid Ansari was guilty of allowing the debate to drag on. He did not answer when Sitaram Yechury asked when the voting would take place. He should have stopped discussion at 11 p.m. and put the bill to vote.

Fight against corruption is tough and long. Eternal vigilance is the price of liberty. There are many vested interests, some of them journalists, who do not want corruption to end. MPs behave the way the nobles behaved in France before French Revolution.

Impeachment and Removal

Nowadays there has been lot of talk impeachment of Justice Soumitra Sen. It is wrong to talk of impeachment of a High Court Judge. A High Court Judge is removed, not impeached.

The constitution of India provides for the impeachment of President and removal of Vice President, Deputy Chairman of the Council of States (Rajya Sabha), Speaker and Deputy Speaker of the House of the People (Lok Sabha), Comptroller and Auditor General of India, Chief Election Commissioner, Speaker and Deputy Speaker of Legislative Assembly, Chairman and Deputy Chairman of Legislative Council, Judges of Supreme Court and High Courts and members of Public Service Commissions. Attorney General and Governors hold office during the pleasure of the President. Advocate General holds office during the pleasure of the Governor.

Only the President can be impeached, others can be removed or dismissed.

Soumitra Sen would have been the first judge to be removed by Parliament. Rajya Sabha had voted for his removal. After a few days he resigned. There was difference of opinion on whether the process of removal should continue. His first resignation was rejected as it was conditional. The President accepted his second resignation. The Speaker of Lok Sabha held an all-party meeting and decided not to proceed with the process of removal. May be Soumitra Sen would have lost his pension if he had been removed and not resigned.