December 11, 2016 marked three years from the day on which the Supreme Court delivered amongst its most widely criticised judgments since the turn of the century: Koushal v. Naz Foundation.
With the stroke of a pen, India’s LGBT community was cast back into the shadows of illegality after a judgment of the Delhi High Court, Section 377 of the Indian Penal Code, was reversed in appeal. The process was as painful as the outcome, for the Supreme Court observed that the LGBT community was a “minuscule” minority that did not deserve the court’s time or protection.
Section 377, plainly read, punishes with imprisonment for life or for a term of up to 10 years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”.
At its core, therefore, is an intention to enforce a decree against actions that are professed to be beyond the warrants of society’s moral compass. Only, that in the case of criminalising homosexuality, it is the outlawing of the act that is immoral, and not the act itself. This fundamental iniquity in Section 377 is, in fact, evident even from the notes of its drafter Lord Macaulay, who had specifically aimed to enforce Victorian morality through the criminal justice system. “We are unwilling to insert, either in the text, or in the notes, any thing which could give rise to public discussion on this revolting subject,” Macaulay wrote in his chapter on “unnatural offences”. “…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.”
Despite the court’s observations, there was little doubt about whether this judgment represented the collective view of the judiciary. In an article published in this newspaper two years ago, I explained that courts across the country had begun narrowing the impact of the decision in the months after it was made. The Gujarat High Court intelligently skirted the Supreme Court’s decision on Section 377, holding that the State government’s failure to grant a tax concession to a film depicting homosexuality was unconstitutional. In the National Legal Services Authority case (2014), the Supreme Court held that hijras and transgenders should be treated as a ‘third gender’ for accessing public services. Following on from this judgment, the Allahabad High Court decided that transgenders would be entitled to be treated as the “head of a household” under food security legislation. News reports indicate that these changes are being mainstreamed across government departments. A ‘third gender’ option is now available in railway reservation forms, ration card applications, passport applications, and Life Insurance Corporation proposal forms.
As Koushal has been gradually discredited in India, courts from around the world have followed. After the Koushal judgment, Indian lesbian and gay couples filed applications in different parts of the Commonwealth claiming refugee or protected status. These couples argued that requiring them to return to India would raise a well-founded fear of persecution and violate their human rights.
In two cases in Britain, lesbian couples from India claimed that they should not be deported home, for they would suffer a risk of persecution or serious harm if they revealed their identities to their families or local communities. The Koushaljudgment was cited as an example of the contemptuous attitude towards the LGBT community in India. The courts in both cases acknowledged that Koushaldid not accurately capture the state of the law in India. In one case, the Court of Appeal of England and Wales held that the judgment was under reconsideration, and a successful challenge “would result in the December 2013 Supreme Court judgment being set aside and remade by a different constitution of the Court”. It also observed that the National Legal Services Authority judgment — decided “just a few months” after Koushal — would likely be indicative of the approach that the Supreme Court would adopt in the future.
Similarly, in an Australian case decided in 2016, a gay man claimed that deportation to India would compel him to alter his behaviour in ways that would conflict with his sexual orientation.
Koushal was again cited in support of the claim. The Australian Administrative Appeals Tribunal held that while negative attitudes towards homosexuality persisted, there were “signs of increasing tolerance” towards the LGBT community in India.
Overruled in practice
On the one hand, these cases confirm that Koushal stands virtually overruled in practice, and will continue to be disregarded within, and outside, India. This is a valuable outcome and a demonstration of the rights-protecting role that courts can perform within the formal constraints of their constitutional authority.
On the other hand, however, a closer examination of the cases indicates that a formal overruling of the Koushal decision would further precipitate decisive shifts in social mores.
The British courts arrived at their decision in the knowledge that the lesbian couples were well educated, were in a position to sustain themselves without family support, and could relocate to Indian cities in which their identities would be more widely accepted.
Despite its finding that attitudes towards the LGBT community were changing in India, the Australian tribunal eventually disallowed the deportation of the gay man, on the basis that he was psychologically vulnerable, and would not be equipped to manage the fear of possible violence from police and local communities.
The Supreme Court should formally recognize what Indian courts, as well as courts from other parts of the Commonwealth, have implicitly acknowledged. No matter how well intentioned, courts are also capable of violating constitutional rights — and that the Supreme Court did just that on December 11, 2013.
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In a diverse country like India, where each State is socially, culturally, economically, and politically distinct, measuring Governance becomes increasingly tricky. The Public Affairs Index (PAI 2021) is a scientifically rigorous, data-based framework that measures the quality of governance at the Sub-national level and ranks the States and Union Territories (UTs) of India on a Composite Index (CI).
States are classified into two categories – Large and Small – using population as the criteria.
In PAI 2021, PAC defined three significant pillars that embody Governance – Growth, Equity, and Sustainability. Each of the three Pillars is circumscribed by five governance praxis Themes.
The themes include – Voice and Accountability, Government Effectiveness, Rule of Law, Regulatory Quality and Control of Corruption.
At the bottom of the pyramid, 43 component indicators are mapped to 14 Sustainable Development Goals (SDGs) that are relevant to the States and UTs.
This forms the foundation of the conceptual framework of PAI 2021. The choice of the 43 indicators that go into the calculation of the CI were dictated by the objective of uncovering the complexity and multidimensional character of development governance
The Equity Principle
The Equity Pillar of the PAI 2021 Index analyses the inclusiveness impact at the Sub-national level in the country; inclusiveness in terms of the welfare of a society that depends primarily on establishing that all people feel that they have a say in the governance and are not excluded from the mainstream policy framework.
This requires all individuals and communities, but particularly the most vulnerable, to have an opportunity to improve or maintain their wellbeing. This chapter of PAI 2021 reflects the performance of States and UTs during the pandemic and questions the governance infrastructure in the country, analysing the effectiveness of schemes and the general livelihood of the people in terms of Equity.
Growth and its Discontents
Growth in its multidimensional form encompasses the essence of access to and the availability and optimal utilisation of resources. By resources, PAI 2021 refer to human resources, infrastructure and the budgetary allocations. Capacity building of an economy cannot take place if all the key players of growth do not drive development. The multiplier effects of better health care, improved educational outcomes, increased capital accumulation and lower unemployment levels contribute magnificently in the growth and development of the States.
The Pursuit Of Sustainability
The Sustainability Pillar analyses the access to and usage of resources that has an impact on environment, economy and humankind. The Pillar subsumes two themes and uses seven indicators to measure the effectiveness of government efforts with regards to Sustainability.
The Curious Case Of The Delta
The Delta Analysis presents the results on the State performance on year-on-year improvement. The rankings are measured as the Delta value over the last five to 10 years of data available for 12 Key Development Indicators (KDI). In PAI 2021, 12 indicators across the three Pillars of Equity (five indicators), Growth (five indicators) and Sustainability (two indicators). These KDIs are the outcome indicators crucial to assess Human Development. The Performance in the Delta Analysis is then compared to the Overall PAI 2021 Index.
Key Findings:-
In the Scheme of Things
The Scheme Analysis adds an additional dimension to ranking of the States on their governance. It attempts to complement the Governance Model by trying to understand the developmental activities undertaken by State Governments in the form of schemes. It also tries to understand whether better performance of States in schemes reflect in better governance.
The Centrally Sponsored schemes that were analysed are National Health Mission (NHM), Umbrella Integrated Child Development Services scheme (ICDS), Mahatma Gandh National Rural Employment Guarantee Scheme (MGNREGS), Samagra Shiksha Abhiyan (SmSA) and MidDay Meal Scheme (MDMS).
National Health Mission (NHM)
INTEGRATED CHILD DEVELOPMENT SERVICES (ICDS)
MID- DAY MEAL SCHEME (MDMS)
SAMAGRA SHIKSHA ABHIYAN (SMSA)
MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME (MGNREGS)