1. Same-sex union can rock societal values: Centre

Any change in human relationship should come from legislature, not court, Centre says in its affidavit in response to a Supreme Court decision to examine petitions on same-sex marriage

The Centre, in an affidavit in the Supreme Court, has frowned upon same-sex marriage while invoking the “accepted view” that a marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India.

“The institution of marriage has a sanctity attached to it and in major parts of the country, it is regarded as a sacrament, a holy union, and a sanskar. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values,” said the 56-page affidavit filed on Sunday. Any “deviation” from this “statutorily, religiously and socially” accepted norm in “human relationship” can only happen through the legislature and not the Supreme Court, the government said.

The affidavit came in response to the court’s decision to examine petitions to allow solemnisation of same-sex marriage under the Special Marriage Act, 1954, which provides a civil form of marriage for couples who cannot marry under their personal law.

“Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws and codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences. Any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values,” the government said.

The government said the court had only decriminalised sexual intercourse between same-sex persons in its 2018 judgment in Navtej Singh Johar, and not legitimised this “conduct”.

The court, while decriminalising homosexuality, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.

It said statutory recognition of heterosexual marriage was the norm throughout history and is “foundational to both the existence and continuance of the state”.

‘Cannot be compared’

The government said a same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union. “Living together as partners and having sexual relationship by same-sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children…” the government contended.

Registration of marriage of same-sex persons would also result in violation of existing personal as well as codified law provisions.

The government said there was a “compelling interest” for the society and the state to limit recognition to heterosexual marriages only.

Several petitions

Several petitions, including ones by partners Supriyo @ Supriya Chakraborty and Abhay Dang, have been filed. They argued that the non-recognition of same-sex marriage amounted to discrimination that struck at the root of the dignity and self-fulfillment of LGBTQ+ couples. A separate petition was also filed by Parth Phiroze Mehrotra and Uday Raj Anand.

The court had issued separate notices to the Union of India and the Attorney General of India. It had transferred various pending issues before various High Courts, including in Kerala and Delhi, to itself.

Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy, and advocate Arundhati Katju had argued that this was a sequel to the Navtej Johar case.

The petitioners had said the 1954 Act should grant same-sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry.

2. India’s silence on Beijing’s role in Saudi Arabia-Iran deal is disquieting

Chinese leader Wang Yi with Iranian leader Ali Shamkhani and Saudi Arabia’s National Security Adviser Musaad bin Mohammed. 

The Saudi Arabia-Iran agreement signed in Beijing on Friday, if successful, will have a far-reaching impact worldwide. The result of negotiations that were kept secret till they reached agreement could signal an easing of tensions between Riyadh and Tehran after many years; peace in Yemen, where the two countries have carried out proxy battles; and a boost for China’s efforts to project itself as a peacemaker.

While the agreement has been welcomed by the United Nations, France, Jordan and West Asian countries, it is also seen as a counter to the U.S.-brokered Abraham Accords, and will be greeted with some concern in the U.S., Israel and the UAE.

Disquieting for Delhi

Though New Delhi has not formally reacted to the announcement so far, the fact that two close partners such as Saudi Arabia and Iran have reached a deal with Beijing’s influence is disquieting, given India’s current tensions with China, experts say. Previous attempts brokered by Iraq and Oman had not succeeded in any breakthrough. “While Saudi-Iranian normalisation is good news, China being the midwife is bad news for South Block,” said P.R. Kumaraswamy, Professor of Contemporary Middle Eastern Studies at Jawaharlal Nehru University (JNU). “However, it is an opportunity for India to rework its priorities and pay serious attention to regional developments” rather than be “surprised” by the development, he added.

Other analysts have pointed to India’s focus on the I2U2 quadrilateral along with Israel, the U.S. and UAE, which may have taken the spotlight away from its ties with Iran and Saudi Arabia. In November, Saudi Crown Prince and Prime Minister Mohammad Bin Salman cancelled a visit to India, which is expected to be rescheduled this year. Iranian Foreign Minister Hossein Amirabdollahian cancelled his participation in this year’s Raisina Dialogue, run by the Ministry of External Affairs (MEA) and the Observer Research Foundation, reportedly after protesting a promotional video for the event that appeared critical of Iranian President Ebrahim Raisi.

Strained U.S-Saudi ties

While the U.S.-Iran tensions are high given the recent breakdown in talks over the Joint Comprehensive Plan of Action, more commonly known as the Iran nuclear deal, the Beijing agreement also shows up the strain in Washington’s ties with Saudi Arabia. Despite U.S. President Joe Biden’s visit to Riyadh last year, Saudi Arabia refused to heed his request to cap oil prices by the Organization of Petroleum Exporting Countries to reduce demand for Russian oil in the wake of the Ukraine conflict. Chinese President Xi Jinping’s visit to Riyadh in December was a stark contrast, in terms of more than a dozen agreements on energy and infrastructure that were signed. Iranian President Mr. Raisi visited Beijing in February, and Mr. Xi is expected to travel to Tehran later to take forward talks on the Belt and Road Initiative and an MoU worth an estimated $400 billion for oil and infrastructure projects.

Diplomats, however, point out that Riyadh’s agreement with Tehran does not signify a rejection of the U.S., so much as it shows that new global players are exerting their influence. “While the balance of power remains with the U.S., its influence and commitment in the region have definitely reduced, given an absence of strategic vision in conflicts in Iraq, Syria, Yemen and so on . The past decade has shown many Middle Eastern countries losing faith in the U.S., and broadening their options to players like Russia for energy matters, and China for economic and political matters,” said Talmiz Ahmad, a former Ambassador and author of West Asia at War.

3. G-20 meet to focus on blue economy, responsible AI

Responsible AI is a governance framework aimed at which data can be collected and used

Responsible application of Artificial Intelligence (AI) and the blue economy will be the primary issues in focus during brainstorming sessions at the three-day Supreme Audit Institutions-20 (SAI-20) Engagement Group delegates’ meet starting on Monday. The Comptroller and Auditor-General (CAG) of India, Girish Chandra Murmu, is the chair of the SAI-20 Engagement Group under India’s G-20 Presidency.

Conserving ocean assets

“’Blue economy’ is the sustainable use of ocean resources for economic growth, improved livelihoods, and jobs while preserving the health of our ecosystem.

Responsible AI is a governance framework aimed at which data can be collected and used; how AI models should be evaluated; and how to best deploy and monitor the models. The framework can also define who is accountable for any negative outcomes of AI,” the CAG said in a statement.

Delegates from G-20 member countries, guest nations and other international organisations will attend the event. The SAIs of Australia, Brazil, Egypt, Indonesia, Oman, South Korea, Russia, Saudi Arabia, Turkey, and the United Arab Emirates will be participating in-person.

The CAG had earlier proposed collaboration in the SAI-20 Engagement Group on “Blue Economy” and “Responsible AI”. During the meeting in Guwahati, he will present and introduce concept themes on the two issues. The participants will share their experiences in these areas.

4. INS Sahyadri joins maritime exercise with French Navy

The Navy’s guided missile frigate INS Sahyadri joined two frontline warships of France in carrying out a two-day maritime partnership exercise in the Arabian Sea.

The exercise on Saturday and Sunday witnessed a wide spectrum of drills at sea including cross deck landings, boarding exercises and seamanship evolutions, the officials said.

The French Navy deployed Mistral class amphibious assault ship FS Dixmude and La Fayette class frigate FS La Fayette in the exercise. “The seamless conduct of the exercise reaffirmed the interoperability and high level of cooperation between the two navies,” the Indian Navy said in a brief statement.

INS Sahyadri is fitted with state-of-the-art weapons and sensors, which makes her capable of detecting and neutralising air, surface and sub-surface threats.

5. More buildings set to achieve net-zero waste

No touch: The government will promote mechanised spades, sensor sticks for garbage clearance.

Centre will bring in new norms for all upcoming housing and commercial complexes; States to be directed to incorporate the requirement in building bylaws as part of efforts to end manual scavenging; mechanised sewerage important for achieving Sustainable Development Goals

All upcoming housing societies and commercial complexes in the country will soon have to mandatorily ensure net-zero waste and have their liquid discharge treated, as part of the Union government’s push for reforming and modernising the sewage disposal system.

Achieving net-zero waste means reducing, reusing and recovering waste streams (sludge) to convert them to valuable resources so that zero solid waste is sent to landfills.

The Union Housing and Urban Affairs Ministry will send a directive, likely by March-end, to all State governments to incorporate the net-zero requirement in the building bylaws and ensure implementation, a senior official in the Ministry said.

The Ministry is looking at integrating septic tank design into the bylaws and adherence to standard specifications, geo-tagging all septic tanks and manholes for proper tracking and reducing GST on mechanised cleaning vehicles.

The directives are part of the government’s effort to implement the manhole to machine-hole scheme to eradicate manual scavenging.

In her Budget speech for 2023-24, Finance Minister Nirmala Sitharaman announced that all cities and towns would be enabled for 100% transition of sewers and septic tanks from manhole to machine-hole mode.

Other guidelines

The guidelines include asking urban local bodies such as municipalities to explore the potential of commercial use of processed sludge as fertilizer and empanelling all agencies providing sanitation services in both the organised and unorganised sectors.

Apart from this, the government will review the Indian standards for mechanised cleaning equipment and consider differential tariff rates for residential and commercial de-sludging.

A “Make in India” start-up for promoting low-cost technological solutions such as mechanised spades and sensor sticks for gas detection is being considered.

For proper implementation, the Centre will ask the States to impose a legal penalty if buildings do not adhere to the bylaws and standard operating procedures, the official said.

Towards SDG

Experts believe a mechanised sewage system, coupled with the mandatory zero net waste clause for housing and commercial complexes, was important for achieving the Sustainable Development Goals (SDGs).

The United Nations SDG 6.3 aims at “halving the proportion of untreated wastewater and substantially increase recycling and safe reuse globally” by 2030. India currently generates 72,368 million litres of urban wastewater a day, of which only 28% is treated, show the Ministry data from 2023.

The real estate sector has welcomed the move. The Confederation of Real Estate Developers’ Associations of India (CREDAI), the apex body of private real estate developers in India, said these changes could be promoted by incentivising urban local bodies to strengthen their sewerage and treatment infrastructure.

“We have encouraged our members to set up solid and liquid waste management units in their projects. Some developers are setting up sewage treatment plants (STPs) within their project premises too,” Harsh Vardhan Patodia, president, CREDAI, said.

According to a 2021 Housing and Urban Affairs Ministry report titled “Circular economy in municipal solid and liquid waste”, India’s economy could be boosted if the sale of treated sewage is institutionalised.

At a conservative estimate, it has the potential to add close to ₹3,285 crore annually.

6. Adultery as misconduct and judicial musings

The point made is about establishing that an adulterous act has ‘some nexus” with the conduct of the person’s professional duties

More than four years ago, the Supreme Court of India decriminalised adultery in its landmark judgment, Joseph Shine versus Union of India (September 2018). It held Section 497 of the Indian Penal Code (on adultery) along with Section 198 of the Criminal Procedure Code to be unconstitutional on the premise that these provisions were violative of Articles 14, 15 and 21 of the Constitution of India.

Aggrieved by the order concerning its implementation in the armed forces, the Union of India sought clarification from the Court saying that any promiscuous or adulterous acts should be allowed to be governed by the relevant sections of the Army Act, the Air Force Act and the Navy Act being special legislations by the virtue of Article 33 of the Constitution. Under Article 33, Parliament has powers to restrict or abrogate the fundamental rights of certain categories of persons, including members of the armed forces to ensure the proper discharge of their duties and the maintenance of discipline among them. The Court, recently, without going into the nuances of relevant sections of the special legislations (i.e., the Army Act and similar special Acts) said that in Joseph Shine it ‘was not at all concerned with the effect and operation of the relevant provisions’ and ‘it is not as if this Court approved of adultery’. The Court further added that it found adultery as a moral (and civil) wrong and a ground for securing dissolution of marriage. With these observations, the case was disposed of.

Issue of discharge of duties

The moot question is whether these observations by the Court give an impression that the armed forces may go ahead with disciplinary action for the misconduct of adulterous acts (as understood in common parlance without reference to Section 497 of the IPC) under their special legislations?

Consequent to the Joseph Shine case, the Rajasthan High Court, in Mahesh Chand Sharma versus State of Rajasthan and Others (2019), set aside the departmental proceedings against the petitioner who was serving as an inspector in the Rajasthan Police (after having served for 18 years in the Indian Air Force) and allegedly had illicit relations with one woman constable and had also ‘begotten a child from illicit relations’. The High Court held that no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life and personal choices and selections (to have sexual intercourse) cannot be a subject matter of departmental proceedings under the Service Conduct Rules.

More recently, in Maheshbhai Bhurjibhai Damor versus State of Gujarat and 3 other(s) (2022), the Gujarat High Court quashed and set aside the dismissal order of an armed police constable arising from allegations that he had developed illicit relations with a widow which amounted to misconduct. The departmental inquiry revealed that the relations between the two were voluntary and mutual, and there was no exploitation of the woman. The Court held that in order to prove misconduct, allegations must have some nexus, direct or indirect, with the duties to be performed by the government servant. As the alleged act was a private affair, and not a result of any coercive pressure, the act of the petitioner at the most could be considered as an immoral act; however, to term it as misconduct as per Conduct Rules would be too far-fetched.

A corollary may also be drawn with the conduct of an army personnel who consumes alcohol. Unless, the drinking habits or any such act of an officer affects the discharge of his duties or discipline of the force, no departmental action is initiated. It is nobody’s secret that army canteens officially provide alcohol to their men and officers at subsidised rates at all locations. A section of society may consider drinking alcohol as an immoral act, but this does not authorise the employer to initiate disciplinary action. In other words, some private space is given even to army personnel where moral policing is not allowed.

A caveat that cannot be overlooked

Though Article 33 of the Constitution empowers Parliament to restrict the fundamental rights of the members of the armed forces, the caveat of ‘so as to ensure the proper discharge of their duties and the maintenance of discipline among them’ cannot be overlooked. The same principle will also apply to members of the forces charged with the maintenance of public order, i.e., the police personnel of all States and Union Territories, intelligence and counter-intelligence agencies including their communication sections as provided in Article 33 of the Constitution.

Therefore, neither did the Joseph Shine verdict of 2018 inhibit the parameters of departmental proceedings nor has the clarification sought enlarged them. It is true that many acts and omissions which are not necessarily criminal in nature may amount to acts unbecoming of a government servant. A common thread running through all relevant judgments is that if the conduct interferes directly or indirectly with the honest discharge of duties; such conduct may be considered as unbecoming of a government servant. The legislative intent of Article 33 of the Constitution is also similar. Therefore, the sacrosanct right to privacy available to the members of the armed forces (and the policemen engaged in the maintenance of public order) cannot be taken away under the guise of the special legislations unless it has some nexus with their duties.