Perspective | Oped


A Tribune Special
Of social and moral behaviour
Delhi HC has overstepped its limits on Sec 377,
says N.H. Hingorani
HE Delhi High Court has ruled in Naz Foundation’s
case that Section 377 of the
Indian Penal Code is
unconstitutional insofar as it criminalises consensual sexual acts between adults in private. It has evoked mixed reactions and triggered a debate.

Illustration: Kuldeep Dhiman


Stampede in Delhi
September 11, 2009
Security, or status?
September 11, 2009
Mission education
September 10, 2009
By restraint, not passions
September 9, 2009
Pak inaction on 26/11
September 8, 2009
Jolt to Modi
September 7, 2009
What led to Partition?
September 6, 2009
Power and grief
September 5, 2009
Death on the hilltop
September 4, 2009
Looking ahead with hope
September 3, 2009
CRPF in the Valley
September 2, 2009


Criminal contempt by advocates
by Hemant Kumar
HE Supreme Court has upheld the conviction of senior advocate R.K.Anand in the NDTV sting operation of the BMW case for professional misconduct and let off I.U. Khan, another senior counsel. It has also decided to enhance the quantum of punishment awarded to Anand for which a notice has been issued to him.


Nandan Nilakeni Unique number: Citizens will get better services, says Nilakeni
HERE is the transcript of Karan Thapar’s interview with Nandan Nilakeni, Chairman of the Unique Identification Authority of India, for the CNN-IBN programme Devil’s Advocate which will be telecast today at 8.30 pm. Excerpts:                            Nandan Nilakeni

Prakash Raj: The icon of Tamil cinema
by Harihar Swarup
AMIL cinema was on the top of the celluloid world when the 55th National Films
Awards were announced last week. India’s much sought after commercial filmmaker
Priyadarshan’s off-beat Tamil film Kanchivaram won the best feature film award
while Tamil actor Prakash Raj was adjudged best actor for his performance in the
same film.




A Tribune Special
Of social and moral behaviour
Delhi HC has overstepped its limits on Sec 377,
says N.H. Hingorani

THE Delhi High Court has ruled in Naz Foundation’s case that Section 377 of the Indian Penal Code is unconstitutional insofar as it criminalises consensual sexual acts between adults in private. It has evoked mixed reactions and triggered a debate.

Whether or not homosexual conduct should be decriminalised is a ticklish issue, with some merit in both sides of the argument. Without entering the larger debate, this article examines reasons given and the Delhi High Court’s approach in drawing its inference.

The exercise becomes necessary because the Delhi High Court’s judgement itself is under challenge. Should the approach taken and the reasons given in the judgement found to be erroneous, there would exist good legal grounds to set it aside. Such an eventuality would only further damage the “cause” of homosexuals.

A close look of the Delhi High Court judgement presents a peculiar feature. Almost the entire ruling is based on decisions of foreign Courts and international instruments. The Supreme Court has, right from its inception, deprecated the practice of importing into the question of construction of a provision in a given case, the doctrines of democratic theory and practice obtaining in other countries unrelated to the tenor, scheme and words of the provision that is to be construed in that case.

The provision in the instant case is Section 377 IPC, which is titled “Unnatural offences” and penalises any person who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal”. The High Court’s reference to the foreign courts’ views on homosexuality are irrelevant for the interpretation of Section 377.

As regards international instruments, it is well settled that “the positive commitment of the States parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the corpus juris of India” (Jolly George Verghese, AIR 1980 SC 470). Moreso, if such instruments are inconsistent with Indian domestic law, as in the present case. Such misplaced reliance by the High Court on foreign judgements and international instruments may vitiate its decision as being based on a legally untenable approach.

The High Court has concluded that Section 377 violates Articles 21, 15 and 14 of the Constitution insofar as it criminalises consensual sexual acts between adults in private. Let us consider reasoning of the High Court.

Article 21mandates that no one shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court has read the right to privacy as being implicit in Article 21, which can be restricted or regulated by law.

The High Court has relied on foreign judgements for the proposition that “if, in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy”. It, therefore, held that the “sphere of privacy allows persons to develop human relations without interference from the outside community or from the State” and thus the criminalisation of “the person’s core identity solely on account of his or her sexuality” violates the right to privacy guaranteed by Article 21.

If such a sweeping proposition is to be accepted, one would have to decriminalise the offence of adultery penalised under Section 497 IPC. After all, in an adulterous relationship between two adults in private, both are acting consensually and without harming the other. And, how about incest? Should now consensual but incestuous acts between adults in private be treated as legitimate? The very criteria adopted by the High Court for holding that criminalisation of homosexuality results in an infringement of Article 21 is, therefore, unsustainable.

The High Court has examined the impact of criminalisation of homosexuality and inferred that there is widespread misuse of Section 377 to brutalise homosexuals. But then, the Supreme Court has consistently laid down that a law is not to be struck down because it is susceptible to misuse. Rather, the misuse is to be checked. There is always a presumption in favour of the constitutionality of an enactment and that public officials will discharge their duties honestly and in accordance with rules. Misuse of an enactment cannot be the ground to declare it as unconstitutional.

Again, the High Court found that criminalisation of homosexuality is an impediment to public health interventions. However, as the Union of India argued, the solution may not be to decriminalise homosexuality but to prevent diseases like AIDS by appropriate education, use of condoms and advocacy of safe sex practices. Decriminalisation of homosexuality could, in fact, encourage homosexuality leading to increase in AIDS or other diseases.

Sexual orientation is a ground analogous to “sex” and discrimination on the basis of sexual orientation is not permitted under Article 15, the court held. However, the court has not substantiated this by any reference to the legislative intent behind the constitutional provision.

The High Court also found the criminalisation of homosexuality as being violative of the equality clause contained in Article 14. It reasoned that the “nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society”. Such purpose, according to the court, is itself irrational. Let us consider the interplay of morality and religion on homosexual conduct.

True, notions of morality are subjective and do change over time. Equally true is the fact that morality by itself is not a ground of restriction of fundamental rights. But is morality altogether irrelevant? After all, it is morality which makes incest or adultery abhorrent. Humans do not exist in vacuum. Law is meant to reflect standards of social behaviour. Societal morality is inherent in the very conceptualisation of a legal norm.

The Indian Constitution is a single document and the provisions of each article are a necessary link in the interpretation of the other provisions. Surprisingly, the High Court, while discarding moral or religious belief as a relevant parameter to test the validity of the purpose of Section 377, did not even refer to Article 25 of the Constitution: The right to the freedom of conscience and the right to freely profess, practice and propagate religion is subject to public order, morality and health.

Assuming homosexual conduct can be said to flow from freedom of conscience, the restriction in Article 25 necessarily brings in the prevalent notions of acceptable behaviour in the nation’s social fabric. It is, therefore, not legitimate for the court to construe the provisions of Articles 14, 15 and 21 bereft of their context in the constitutional scheme, and without even considering whether homosexuality is hit by public order, morality and health under the opening words of Article 25.

True, a law can, and should, be modified to reflect prevalent societal morality and conduct which, in practice, is regulated more by acceptable moral behaviour and less by law. If the current social norms accept homosexuality, the law should be amended to reflect that position. Thus, the crucial question is not whether morality and religion are relevant to the question of decriminalisation of homosexuality, but who is going to determine what is the acceptable social and moral behaviour — the legislature or the judiciary?

It is trite in constitutional democracy that the legislature must be presumed to understand and correctly appreciate the need of its people, that its laws are directed to problems made manifest by experience, and that its discrimination are based on adequate grounds. It is for the legislature to say, if it so wishes, that homosexuality should be decriminalised and to amend the law to reflect such policy. Indeed, the High Court seems to have overstepped its jurisdiction in supplanting the legislative policy underlying Section 377 by its own policy to decriminalise homosexuality.

The writer is Senior Advocate, Supreme Court



Criminal contempt by advocates
by Hemant Kumar

THE Supreme Court has upheld the conviction of senior advocate R.K.Anand in the NDTV sting operation of the BMW case for professional misconduct and let off I.U. Khan, another senior counsel. It has also decided to enhance the quantum of punishment awarded to Anand for which a notice has been issued to him.

In August 2008, a Division Bench of the Delhi High Court convicted both Anand and Khan after taking suo motu contempt proceedings of the expose and barring them from appearing in the High Court and other courts for four months together with a fine of Rs 2,000 each. A recommendation was also made to the Full Court for stripping their tag of senior advocate. Both went to the apex court on appeal.

Though the apex court order convicting Anand and censuring Khan on grounds of obstruction of justice and criminal contempt of court ought to serve as a deterrent for corrupt and notorious elements in the legal fraternity, the question remains: whether the punishment on the advocates is proper or valid in the light of a Supreme Court Constitution Bench judgement.

In Supreme Court Bar Association (SCBA) vs Union of India (April 1998), the apex court ruled that the power available to a High Court or Supreme Court for inflicting punishment on account of criminal contempt cannot be stretched to such an extent as to usurp the statutory powers of the Bar Councils which have been delegated the authority under the Advocates Act, 1961 to cancel or suspend an advocate’s license. One may argue that even exercising contempt jurisdiction, the punishment can only be awarded as provided under Section 12 of the Contempt of Courts Act, 1971.

Indeed, the apex court had taken the 1998 ruling into consideration while deciding the appeal of Anand and Khan. At the same time, it also referred another verdict in Ex-Capt Harish Uppal vs Union of India (Dec 2002) which held that the right to appearance in courts is within the court’s control.

It ruled that Section 30 of the Advocates’ Act has not been brought into force till date. (Section 30 states that every advocate whose name is entered in state roll “shall be entitled as of right” to practice throughout all courts and tribunals).

Though it sounds logical that the Supreme Court/High Courts while exercising contempt jurisdiction need to stick to the contempt of court legislation and it shall be not open for them to devise any new kind of punishment even in exercise of their constitutional powers under Article(s) 129 and 215 of the Constitution, it sounds convincing that the exercise of the contempt power is an inherent power available to a court and as such it cannot be confined or clipped down due to the enactment of a statute by Parliament.

The aforesaid proposition of law needs a detailed adjudication preferably by a larger Constitution Bench of the Supreme Court as the two five-judge Bench rulings (SCBA and Harish Uppal) tend to take differing views regarding the courts’ power to debar advocates from appearing before them for a specified period.

According to Section 34, Advocates’ Act, a High Court can make rules laying down the conditions subject to which an advocate shall be permitted to practice in the High Court and the subordinate courts but the fact is that many High Courts have not framed such rules. This has resulted in confusion over the legitimacy of punishing guilty advocates. Even the Delhi High Court has not framed rules till date.

In July 2004, the Madras High Court enacted a 25-point code of conduct for advocates in pursuance of Section 34, Advocates’ Act, which inter alia empowered the court to prevent the erring advocate from entering the court premises for one year. But this evoked protests by the legal fraternity and ultimately, the code was repealed. It is unlikely whether any other High Court would frame such rules as the apex court has directed to all the High Courts.

Even if the courts refer cases of misconduct to the Bar Council concerned for adjudication, what would happen if the council does not hold the erring advocates guilty and punish them? The Advocates Act, 1961 or the Bar Council Rules should be suitably amended to provide that if an advocate is debarred from practising for a certain period for criminal contempt, it would be deemed to be an action inflicted by the Bar Council which would not be normally interfered with. In such a scenario, if the BCI abdicates its responsibility, the Supreme Court and the High Courts will have to step in by nailing the delinquent and unscrupulous elements.

Regular interaction between the Bench and the Bar is a precondition for framing better rules on the lawyers’ misconduct. The Bar Councils are often reluctant to take drastic action against advocates. When the National Consumer Commission in 2007 ruled that advocates come within the Consumer Protection Act’s purview on account of “deficiency in service” to their clients, the Bar Council and the aggrieved advocates pleaded before the apex court that no consumer panel can be moved in case of any complaint against an erring advocate and the Bar Council alone could take stock of the matter. The apex court is seized of the matter.

There is a need to inculcate suitable reforms in the Bar Councils’ composition and working so that they stand the scrutiny of aggrieved victims of professional delinquency by erring advocates. Why not include retired members of the higher judiciary and other distinguished persons from civil society in the disciplinary panels of the Bar Councils? Their decision making process needs to be expedited and verdicts publicised.

The Bar Council of India ought to introspect over falling standards of the Bar. As its millennium pledge vows to strive for highest standards of professional ethics, advancement of legal profession and service to humanity, it is time to initiate reforms. This won’t be possible without the Bar’s active and whole-hearted support.

The writer is Advocate, Punjab and Haryana High Court



Unique number: Citizens will get better services,
says Nilakeni

HERE is the transcript of Karan Thapar’s interview with Nandan Nilakeni, Chairman of the Unique Identification Authority of India, for the CNN-IBN programme Devil’s Advocate which will be telecast today at 8.30 pm. Excerpts:

Karan: Why do we need a unique identification number and does the proposal itself make good sense? It is said that 80 per cent of Indians have Election Commission identity cards, others have ration cards, some people have BPL cards, others have driving licence and passports, there are even PAN cards. Why do we need a unique identification number (UID)?

Nandan: We need one single, non-duplicate way of identifying a person and we need a mechanism by which we can authenticate that online anywhere because that can have huge benefits and impact on public services and also on making the poor more inclusive.

 Karan: Am I right in assuming what makes the UID different to anything else is that in addition to name, age, sex, date of birth and address, you actually have the individual biometrics which are unique to that individual?

Nandan: Absolutely. It is a combination of most probably fingerprints and picture and a biometrics committee will finalise that but finally that makes it unique. And we will also make sure that there are no duplicates.

Karan: Does the technology exist? Accordng to a London School of Economics analysis of a similar project that was being considered by the British Government, “The technology envisioned for this scheme is to a large extent untested and unreliable.” If that is true of Britain it has to be true of India too?

Nandan: There is no question that this is a project where we are going into uncharted territories, the technological challenges are immense and one of the risks of this project is the technology.

Karan: This is not just uncharted territory, this could end up being a case of India’s ambition outstripping its ability.

Nandan: There are certain risks in this project but given the enormous opportunity and developmental benefits that it can give, it’s worth taking on the project and trying to mitigate the risks so that we get the outcomes that we want.

Karan: Would you accept that the technology is not just uncharted but not fully known?

Nandan: There is no other country in the world where a billion peoples’ biometrics have been captured and stored in an online database. In that sense, it has not been done before.

Karan: We have to invent the technology for this size and scale of operation?

Nandan: No, we don’t have to invent the technology, we have to scale up the existing technology to work at this scale.

Karan: But it’s such a fantastic scaling up that it’s almost a reinvention.

Nandan: It’s not a reinvention but a scaling up.

Karan: The second problem inherent is the problem of cost. Once again, a London School of Economics survey concluded that the probable cost for Britain would be between 10 to 20 billion pounds. Frontline magazine believes that the Government of India has a guesstimate of somewhere around Rs 1.5 lakh crore. Is it worth it at that cost?

Nandan: I don’t agree with that estimate. I don’t know what the exact figure is but it is much less than that by a factor of 10.

Karan: If you don’t know the exact figure, how can you say it is lesser by a factor of 10?

Nandan: The bulk part will be lesser than that.

Karan: But it’s a guess that you are giving me, isn’t it?

Nandan: It’s a guess but it’s an informed and educated guess.

Karan: So the truth is we don’t know what the exact cost will be?

Nandan: We don’t know what the cost will be but I am very confident that whatever the cost is the social, economic and efficiency benefits of it would make it well worth it.

Karan: The UID could play some role in targeting benefits better at people who deserve it, but when in India the prime need is education, health and particularly health for women and children, sanitation (700 million Indians do not have proper sanitation facilities), surely this money could be better used.

Nandan: The investment of money in this project will actually make all those other monies be spent more efficiently. Think of it as an infrastructure for enabling you to spend money more effectively.

Karan: All of that depends on the assumption that technology can tackle these problems. Despite all the positive potential benefits of the project, the assumption that technology can actually tackle the ills of social inefficiency and social problems — that’s a huge assumption.

Nandan: It’s a huge assumption.

Karan: Maybe an unjustified one?

Nandan: Look at it simply. You talked about maternal care, we have 10 million women who get health benefits under the JSY programme but we have to make sure that the right women get it before their pregnancy so their health will improve, the quality of the delivery will improve. These are all real social problems that this information can help you to solve.

Karan: The real problem in India is hat there is a vast number of people who qualify and are not included in the BPL threshold at all. How will you be addressing the second problem?

Nandan: What happens today in a particular state is that there may be more BPL cards than the population of the state because there are multiple cards issued to an individual. With the UID, you will be able to actually trim that down to one card per individual and therefore we will actually know who is not getting this now.

Karan: But what you can’t do is to identify the people who should have BPL cards and do not have them because they are outside the system, they have been ignored. Technology won’t improve that?

Nandan: This (UID) is not a panacea for all the problems. This is an enabler which will allow more effective public delivery.

Karan: Is it a one-time investment? In fact, Frontline says that the government’s estimate of Rs 1.5 lakh crore does not include recurring cost. The recurring cost could add to that and we don’t know by how much?

Nandan: On the scale of money that we spend on public programmes and the ability of the project to deliver better public programmes it will be well worth it.

Karan: The third inherent problem is the database. How can you ensure that it will be secure, it won’t be misused and it won’t result in an invasion of privacy?

Nandan: That is a very legitimate concern. We are looking at the design as to how to make it secure. We are saying that nobody can read this database. All they can do is verify the authenticity of an identity. You can ask a question like — is x x? And the only answer we will give is yes or no. So there is no data coming down from the pipe. But there is no question that once the UID is implemented and the UID becomes ubiquitous in many applications, then there are challenges of privacy and I think along with this project, we have to put in other checks and balances, including laws.

Karan: Can you ever put in sufficient checks and balances? No one believes in the perfectability of computers, so hackers will hack and succeed.

Nandan: This again is a legitimate concern but we will have to design it well.

Karan: The risk of hacking can never be removed cent per cent?

Nandan: In every system, there will be people who will try to hack on it. Some are impenetrable, some are not. The important thing is — is the risk of hacking and privacy large enough not to do this project? And the view is that the project has so many significant benefits for the poor in making it inclusive and in giving them a chance to participate in the country’s progress, that it is worth it and we have to mitigate those risks.

Karan: In India, you are creating a system which in the wrong hands would be a powerful tool for either religious or caste profiling.

Nandan: We are not keeping any profiling attributes in our database.

Karan: In which case, how can you say that you will better target benefits at BPL and other categories because if you don’t know someone is SC, ST or OBC, how can you ensure better targetting?

Nandan: That is the responsibility of the applicant that provides those services.

Karan: So then they will add in that feature into your detail?

Nandan: That is outside our system. Our system has only basic attributes like the name, address, date of birth.

Karan: How are you going to handle the inevitable problems of internal migration or illegal immigration which are going to bedevil your scheme?

Nandan: Having this number does not confer any rights, benefits or any entitlements. All it does is confirm that X is X.

Karan: There are hundred ways of doing that. Why are we spending close to Rs 1.5 lakh crore on this project just to be able to claim X is X?

Nandan: A system which uses a unique identifier like biometrics, which ensures there are no duplicates and facilitates online authentication will provide a lot of social benefits for the poor.

Karan: I won’t question that belief although I call it a catechism of faith. One either accepts it on faith or one doesn’t.

Nandan: I am not a high priest of technology.



Prakash Raj: The icon of Tamil cinema
by Harihar Swarup

TAMIL cinema was on the top of the celluloid world when the 55th National Films Awards were announced last week. India’s much sought after commercial filmmaker Priyadarshan’s off-beat Tamil film Kanchivaram won the best feature film award while Tamil actor Prakash Raj was adjudged best actor for his performance in the same film.

Kanchivaram outdid such popular movies as Chak de India and Taare Zameen Pa and Prakash Raj surpassed towering film icons like Shahrukh Khan and Aamir Khan.

The film presents a rare portrayal of the struggle of Kanchi’s silk weaver community. It is a vibrant story and along with technical excellence, creates a total cinematic experience, says the citation of the award. The film, based on the lives of silk weavers, revolves around a protagonist who promises to buy a silk sari for his daughter. The sad irony is that the weavers, who make silk saris all their lives, would never be able to afford one.

The role of the weaver played by Prakash Raj is powerful and portrayed with rare sensitivity. He did the film without accepting any money. When Priyadarshan narrated the story to him, he simply walked out. “My hands were trembling. I was in tears and after a cup of coffee at a restaurant. I was composed enough to call him and blast him for keeping the story to himself for 12 years”, Prakash Raj reportedly said. It was a painful role in Kanchivaram for him. He drifted into nostalgia, thinking of his marriage which had run into difficulty and birth of his daughters.

Prakash Raj had divorced his actress wife, Lalitha Kumari, daughter of well-known cine personality, Anandan and Lakshmi. Prakash and Lalitha have two daughters and third one, a son, died a few years ago. The divorce is turning out to be a costly affair for Prakash. His wife of many years, Lalitha, who agreed to divorce unwillingly, has now demanded Rs 2 lakh a month as alimony. The actor is reluctant to shell off that and wants to get away with something less.

When Prakash filed a divorce petition in a Chennai court, Lalitha had stated she would not agree for a divorce and wished to live with him.

In spite of separation, family bonds still continue. When Prakash heard that Lalitha’s mother was seriously ill and taken to a hospital, he visited his mother-in-law. Lalitha’s elder sister, former actress Disco Shanti, who is based in Hyderabad, rushed to Chennai to be with her ailing mother.

Prakash Raj is now the darling of Tamil Cienma. Villain, character actor, and now a tragic hero in Kanchivaram, he never misses a chance to turn up trumps. “Nothing about Prakash Raj comes as surprise, but his performance in Kanchivaram leaves us with not enough adjective”, says the South Indian Film Chamber of Commerce.

He has himself said the role left him shaken and stirred up. “The film is very close to my heart”. Before assuming the role in Kanchivaram, he did lot of background work about his character and weaver community in Kanchivaram.

Prakash is a famous actor and producer from Karnataka and has acted in Kannada, Tamil, Malayalam, Telugu and Hindi films. His original name — Prakash Rai — in Kanada screen was rechristened to Prakaskh Raj by K. Balachander, for Prakash Raj’s debut movie in Tamil Duet. Prakash’s mother tongue is Kannada.

 He began his acting career with Kannada serials and later took up the supporting roles in Kannada films. His breakthough role came in the form of Harakeya Kuri, starring Vishnuvardhan and Geetha. His performance in the movie was noticed by Geetha and she, in turn, introduced Prakash to his mentor, the noted director K. Balachander.

Prakash Raj has now risen on the national scene with his movie Kanchivaram, bagging the best actor award. Look out for him as he has also acted in Hindi films and in Kanchivaram left behind such Bollywood icons as Shahrukh Khan.



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