1. Toward legalising same-sex marriage
How do the fresh pleas in the Supreme Court seek to recognise same-sex marriage? What are the existing rights of LGBTQIA+ people in India? Which are the judgments being cited by the petitioners? Where do other countries stand on same-sex marriage?
A Supreme Court Bench led by Chief Justice of India D.Y. Chandrachud on November 25, issued notices to the Centre and the Attorney General of India, seeking their response to two petitions filed by gay couples to allow solemnisation of same-sex marriage under the Special Marriage Act, (SMA) 1954.
What do the petitions say?
The SMA provides a civil form of marriage for couples who cannot marry under their personal law, and both the recent pleas seek to recognise same-sex marriage in relation to this Act and not personal laws.
The first petition was filed by two men, Supriyo Chakraborty and Abhay Dang, who have been a couple for 10 years. Their petition argued that the SMA was “ultra vires” the Constitution “to the extent it discriminates between same-sex couples and opposite-sex couples”. It stated that the Act denied same-sex couples both “legal rights as well as the social recognition and status” that came from marriage. Senior Advocates Niraj Kishan Kaul and Menaka Guruswamy for the petitioners said that about 15 legislations which guaranteed the rights of wages, gratuity, adoption, surrogacy and so on were not available to LGBTQ+ citizens. The petitioners emphasised that the SMA “ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation”.
The other petition was filed by a same-sex couple of 17 years — Parth Phiroze Mehrotra and Uday Raj Anand. Their counsel, Senior Advocate Mukul Rohatgi, argued that the recognition of same-sex marriage was only a “sequel” or a continuation of the Navtej Singh Johar judgment of 2018 (decriminalising homosexuality) and the Puttaswamy judgment of 2017 (affirming the Right to Privacy as a fundamental right). Mr. Rohatgi said the petition did not touch on personal laws but only sought to make the 1954 Act “gender-neutral”. Their plea pointed out that while Section 4 of the SMA permitted the solemnisation of marriage between any two persons, a subsequent section placed restrictions. It said: “The use, in Section 4(c) of the words ‘male’ and ‘female’, as well as the use of gendered language such as the terms ‘husband/wife’ and ‘bride/bridegroom’ in other sections of the Act, limit the access to marriage to a couple comprising one ‘male’ and one ‘female’.”
Have similar petitions been filed?
There are currently a total of nine petitions pending before the High Court of Delhi and Kerala, seeking to recognise same-sex marriages under Acts such as the SMA, the Foreign Marriage Act and codified personal laws. On Friday, the Supreme Court Bench of CJI Chandrachud and Justice Hima Koli transferred the various pending issues before High Courts to itself.
One of the new petitions also placed emphasis on another important judgement of the apex court. In the NALSA vs Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom and so on could not be restricted to those who were biologically male or female.
What is the government’s stand?
Late last year, while responding to the pleas seeking recognition of same-sex marriages in the Delhi High Court, Solicitor General Tushar Mehta for the Centre had said that as per the law, marriage was permissible between a “biological man” and “biological woman”. In its affidavit opposing the pleas, the Centre had said: “The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws”. It also argued against the urgency of the pleas by saying nobody was “dying” in the absence of a marriage certificate.
What about other countries?
A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements. Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage. Civil unions or partnerships are similar arrangements as marriages which provide legal recognition of unmarried couples of the same or opposite sex in order to grant them some of the rights that come with marriage — such as inheritance, medical benefits, employee benefits to spouses, managing joint taxes and finances, and in some cases even adoption. The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law. In some countries, the decriminalisation of homosexuality was not followed for years by the recognition of same-sex marriage, for instance, in the U.S. the former happened in 2003 while the latter in 2015.
2. What is the PDS scam that has led to a SC listing controversy?
How has the Nagrik Apurti Nigam, the nodal agency for Chhattisgarh’s public distribution system, become embroiled in scandal? What are the Enforcement Directorate’s accusations against the government?
On November 21, Chief Justice of India D.Y. Chandrachud agreed to hear the Nagrik Apurti Nigam (NAN) scam case in the Supreme Court, after a high-octane exchange last week between the Chhattisgarh Government and the Enforcement Directorate over the case’s listing in front of a fresh Bench.
What is the NAN scam?
The NAN is Chhattisgarh’s nodal agency for procuring and distributing food grains under the Public Distribution System (PDS). In 2015, when former Chief Minister and BJP leader Raman Singh was in power, the Opposition alleged that the government was distributing sub-standard quality grains under the PDS and that officials had received kickbacks from rice millers to allow this. The State’s Anti-Corruption Bureau (ACB) launched a probe into the matter. While conducting raids at the NAN office, the agency found unaccounted-for cash worth over three crore. It also tested the food samples for their quality, finding many samples of salt and rice unfit for human consumption. It booked 27 persons in the case including two IAS officers, now the main accused, Anil Tuteja and Alok Shukla, (the Chairman and the Managing Director of NAN, respectively) alleging that they had allowed the distribution of sub-standard foodstuffs. The ED also started a money laundering probe into the case.
Charges were pressed against the officers in 2018. In December 2018, Bhupesh Bhagel’s Congress government took charge, constituting within days a Special Investigation Team (SIT) to probe the matter again. Notably, Mr. Bhagel’s administration appointed the two accused IAS officers to government posts and in 2020, the Chhattisgarh High Court also granted anticipatory bail to the two officers.
Why did the ED want a transfer?
Late last year, the ED moved the Supreme Court seeking a retrial out of Chhattisgarh and a transfer of the case to the CBI. The ED, in its petition, alleged that the judiciary and the current Chhattisgarh government were weakening the investigation and helping the accused in the case and asked the Court to allow proof of the same. The ED alleged that its evidence revealed “the nature of the misuse of power” in Chhattisgarh, saying that evidence was tampered with, witnesses were influenced, and that there could be a “potential conspiracy” involving a “constitutional functionary”. It said that the main accused had close ties with the current Chief Minister Mr. Bhagel, and that the SIT formed by the State government made “at least seven unsuccessful attempts” to stall the previous trial. The Chhattisgarh government has called the ED’s allegations “baseless”.
What was the listing controversy in the Supreme Court?
The retired Chief Justice of India U.U. Lalit, along with Justices Ajay Rastogi and S. Ravindra Bhat, were hearing the ED’s plea but dropped the case from the Court roster on October 20, citing paucity of time before the end of his term on November 8. On November 14, the case came up before a new Bench with Justices Shah and Hima Kohli. However, senior advocate Kapil Sibal, appearing for the Chhattisgarh government, objected, saying the convention required the case to be listed before either of the two associate judges on Justice Lalit’s Bench. Justice Chandrachud responded that he could have constituted a Bench of himself and Justices Rastogi and Bhat but that would mean breaking up two separate Benches, presently headed by the two Justices. On Monday, however, Justice Chandrachud agreed to constitute a Bench headed by himself with Justices Rastogi and Bhat.
3. Editorial-1: Imaginative pasts, the uncertain futures of historians
In a landscape already crowded with flexi-banners of Bengaluru’s Members of the Legislative Assembly or a smiling Puneeth Rajkumar (the actor), flag poles, statuary and immense amounts of commercial clutter, comes the latest towering addition of Kempegowda I. A chieftain of the 16th century, widely credited with the founding of Bengaluru in 1537, has been immortalised in a 108-foot bronze ‘Statue of Prosperity’. This comes years after the city’s new airport at Devanahalli was named after Kempegowda, though few outside Karnataka knew about him; now his towering presence at the airport should leave no visitor in doubt.
No place for the historian
Can the professional historian of Karnataka any longer be heard over the din and the roar of those who claim to speak about the State, its heroes and their pasts? The historian is confined to researching, writing, and perhaps in some lucky cases, teaching about complex, contentious and conflicted pasts. These are paltry resources against those who, with State, party or community backing, aggressively deluge social media, install statues, build new structures to commemorate their heroes (alas, usually men) — or plan agitations for the take-over of established religious sites, to denigrate the ‘villains’ of the past (alas, usually Muslims). Colourful assertions in videos and plays have infinitely greater appeal than a defiantly dull dissertation. And they are blissfully free of any obligation to historical objectivity or reasoning.
Historians thus had no role at all in determining either the size, clothing or demeanour of the Nadaprabhu (Nadaprabhu Kempegowda). According to the former Bangalore Mayor, (the late) G. Narayana, the first statue of Kempegowda was installed in front of the Bangalore Corporation in 1964 after a five-year period when corporators argued about what he might have looked like. Had historians played their role, they might have offered the two extant versions of a pious Kempegowda at the Someswara Temple at Halasuru and the Gangadhareshwara temple at Shivagange. Whether in the bas relief at Halasuru or the statue at Shivagange, he is shown in a prayerful attitude, both hands folded, and with his sword safely sheathed. But the person who has now been posthumously consecrated as the yuga purush of the entire region — standing on mud procured from different parts of the State — requires a warrior-like stance, sword drawn.
But his elaborate embroidered tunic, ‘churidars’, turban, sarpesh, and upturned footwear in the gigantic statue is cause for pause. In the two known representations, he is bare-chested, barefoot, and with the creases of his panche clearly shown. Even more interesting is his headgear, which historians have identified as the Kullayi (also kapayi in Kannada) ‘tall conical cap of brocaded fabric’ — usually worn with the Kabayi (long white tunic). These were garments borrowed by the Vijayanagar kings from their Islamic neighbours. Such cultural borrowings — forms of dress, address, judicature, or architecture — as many medieval historians have shown, were common in the period that has stubbornly been identified as a time of unalloyed Hindu-Muslim antagonism.
By the 17th century, Maratha styles of dress also became popular, themselves fusing Islamicate court traditions, as in the successor States of Vijayanagar at Ikkeri, Madurai and Thanjavur. Kempegowda’s clothing in fact conforms more to those of the 18th century ruler Tipu Sultan, whose name has become anathema to large sections of the Kannada public. Devanahalli, where the airport is located, is Tipu’s birthplace — Kempegowda’s birthplace was Yelahanka, some distance away.
An intra-party war
‘Islamicate’ or ‘Persianate’ — rather than ‘Islamic’ — is the historian’s preferred term, to distinguish the extensive politico-cultural influences from close links to religion. Such nuances are of course lost on the political stalwarts who ‘joyfully march to (Hindutva) music in rank and file.’ A full-fledged battle has recently broken out in Mysuru over the design of a new bus shelter, which first sported three domes. Mysuru MP Prathap Simha red-flagged the ‘gumbaz-like’ structure as more appropriate to Pakistan than Bharat, and demanded it be demolished and reconstructed. The MLA S.A. Ramdas explained that his effort was to pay a tribute to the domes of the Mysore Palace, and the style favoured in early 20th century palace construction. In this intra-Bharatiya Janata Party war, Prathap Simha’s roar about the bus stop resembling a masjid made the contractor scramble to install kalashas on the structure overnight; when even that did not diminish the rage of the MP, it was painted orange. It is as hopeless to point out that the Kodekal and Tintinni temples (Yadgir district) sport minarets and domes as it is to point out the difference between monarchies and democracies to University Grants Commission chairmen. Rightly had Albert Einstein said of the ‘joyful marchers’ that they were mistakenly given a large brain when a spinal cord would have sufficed.
The rage against Tipu Sultan meanwhile gathers force on several fronts; the head of the State repertory theatre, Rangayana, has written a play (performed with 250-strong police protection) called Tipu Nija Kanasugalu (Tipu’s Real Dreams) which portrays him as a tyrant. (Historian Michael Sorocoe has shown that this cultivated image was crucial to the establishment of a British imperial order from the late 18th century.) We have come a long way from Hulimane Sitarama Sastry’s portrayal of Tipu Sultan in the play he wrote and performed in the late 1940s and 1950s, ringing out the words ‘Veera! Dhira! Shura!’ and celebrating the Mysuru huli (tiger) as the first anti-colonial warrior.
A defiance of history
Today, the defiance of history is also in a high decibel video in which we are told that two Vokkaligas, Uri Gowda and Nanje Gowda, wounded and killed Tipu Sultan in 1799. If the two ‘ bravehearts’ were soldiers of the East India Company army, are they to be treated as heroes, or as ‘anti-nationals’ who helped the British gain control of the one region in India that stoutly resisted their forces?
The professional historian today hesitates to cross the dangerous minefield that the past has become. Like the litter we encounter in our daily lives, we must become inured to far too much history lying around for use as missiles. Given this uncertain future, the privileged could either choose a faraway country to research — say Ireland, witty and hospitable — or retreat to a safe redoubt, such as the British Library. (A good part of Tipu’s library is there, safer in the hands of his former enemies —thereby escaping pillage or arson in the new India.) The less fortunate could join imaginative tourist guides at well-known historical sites, and claim that ‘in the old days’ humans were about 35 feet tall (as a persuasive guide at Lepakshi had it, while explaining why a single enigmatic footstep of Sita was more than six foot long). At least we will not be harming any people or structures.
4. Editorial-2: Xi’s Congress rhetoric powers the PLA’s march ahead
The developments in the wake of the 20th Party Congress of the Communist Party of China (CPC), China’s rise, its domestic debates and agenda merit a closer examination of the People’s Liberation Army’s (PLA) role as a geopolitical actor.
Chinese President Xi Jinping, who made history with his unprecedented third term in office at the Party Congress in October, told the Chinese elite at the quinquennial gathering that it was important to further expedite military modernisation to make it a world-class force. He underscored that the PLA should be able to stage military operations quickly and have the “ability to win local wars”. On the issue of Taiwan’s reunification, Mr. Xi asserted that while China would make efforts to bring back the territory peacefully, it could deploy military means to achieve its aims. Furthermore, Mr. Xi proclaimed that he would ensure “total reunification of China”. More recently, he told United States President Joe Biden (during their first in-person meeting at the sidelines of the G20 leaders’ summit in Indonesia) that Taiwan was the core of China’s core interests. Having cranked up the rhetoric, Mr. Xi will have to deliver on Taiwan. In this endeavour, the PLA will be an important component.
Strategic shift
This year, Mr. Xi completes a decade at the helm of the Central Military Commission (CMC), a body that oversees the CPC’s vast military. In different phases, he has brought about changes to the CMC’s structure and troop units and reconstituted command theatres. Its naval fleet is larger than America’s, and has improved the capabilities of its navy personnel through participation in anti-piracy missions. China made forays into building capacities so as to fight on new battlefronts such as space and cyberspace with the constitution of the Strategic Support Force. The PLA Rocket Force, which was upgraded to a full military service branch in 2016, is in charge of China’s land-based nuclear and conventional missile forces. There has been a change in approach to military education and hiring talent with the PLA, increasingly seeking out university students with a background in “skills needed to supplement war effort” namely engineering, communications, Internet, and drone operations. Reports also emerged that China was engaging air force pilots of western nations to train its personnel by offering them huge sums of money so as to understand how foreign defence services operate and fine-tune Chinese air force capabilities. The tactics learnt through such means could come in handy in case of an invasion of Taiwan.
According to defence experts, Mr. Xi’s reforms, in which the land-based army has been pruned in favour of improving aerial, naval and strategic service branches, constitute the largest overhaul of the PLA since the 1990s in a bid to mould the military into a modern force. The motivation for this military transformation may have something to do with Mr. Xi’s background. Around the time of the Sino-Vietnamese war, Mr. Xi served as then Defence Minister Geng Biao’s secretary in the CMC, allowing him to witness at close quarters the PLA’s shortcomings and deficiencies.
Ambitions post Party Congress
China’s military overhaul is also connected to its ambition to elbow out the U.S. as a global power. Thus, attaining dominance in the air, space and cyber domains, allows China to project power in the region and protect its interests overseas. In this mission, it is borrowing from the western template. The ascendance of the U.S. as a world power in the 1940s and the geopolitics of West Asia where America’s rival, the Soviet Union, began to take interest led to an increased U.S. army presence in hydrocarbon-rich Saudi Arabia. China is similarly broadening its ties to archipelago nations in the southern Pacific Ocean such as the Solomon Islands for geopolitical reasons. A Europe thrown into turmoil due to the war in Ukraine has meant that China sees it prudent to expand into the Solomon Islands for its Belt and Road Initiative and constructing special economic zones. An economic investment fetching good returns is incumbent on political stability, in addition to other variables. This seems to be the reasoning for the security pact recently inked between China and the Solomon Islands. Picture this — on the pretext of protecting Chinese projects and personnel stationed on the islands, China’s police-military personnel get a toehold on the islands. China then makes inroads into the islands’ security establishment by indoctrinating law-enforcement officials through training programmes conducted on the mainland, and socialises its political elite through bribery and corruption before taking over. This is not a dystopian fantasy, but a reality that is unfolding right now.
Implications for India
As China’s military reforms have rolled out, there has been a commensurate increase in its aggression and expansion as evidenced in phases such as the declaration of an Air Defence Identification Zone over the East China Sea, reclamation of islands in the South China Sea, followed by construction of military infrastructure there. Even as China seeks to dial down tensions along the border and create an impression of bonhomie, it is building infrastructure along the Indian border. New Delhi must not get lulled into complacency by these optics or Chinese sophistry. The first stop in China’s journey to become a global power is becoming a regional hegemon in Asia. This will mean that it will have to deal with India soon or later.
5. Editorial-3: Shifts unexplained
System of shuffling High Court judges without consent needs reconsideration
The common criticism that the functioning of the Collegium system of judicial appointments is opaque, and sometimes arbitrary, seems to hold greater validity in the matter of transfers of judges from one High Court to another. A recent round of transfers — among the dozens that have been effected in the last few years — has brought the controversial issue to the fore again. The list included three judges from the Telangana High Court, and two each from the Madras and Andhra Pradesh High Courts. Conspicuously absent was the name of Justice Nikhil S. Kariel, a Gujarat High Court judge whose proposed transfer was strongly opposed by the bar in that State. Lawyers took up the issue in support of Justice Kariel, as well as Justice A. Abhishek Reddy of the Telangana High Court, and the Chief Justice of India met with representatives of the Bar from both States. Yet, the transfer of Justice Kariel alone did not materialise, while the transfers of other judges were notified. If reports that the Gujarat High Court Chief Justice was unaware of the impending transfer of Justice Kariel are correct, it bodes ill for the legitimacy of transfer proposals. No good message is being sent if it is perceived that the Collegium heeds the demand made by one set of lawyers, but ignores that of another group.
Transfer of judges may be needed for exchange of talent across the country and to prevent the emergence of local cliques in the judiciary. However, the power of transfer has always been seen as a possible threat to judicial independence. Even under the Collegium system, it seems it is difficult to dispel the impression that the threat of transfer hangs over every judge’s head. The Memorandum of Procedure is clear that a judge’s consent is not necessary to effect a transfer. The current norm is that all transfers ought to be in public interest, that is, for better administration of justice throughout the country. It also says the personal factors of the judge, including his preference of places, should invariably be taken into account. No one knows if these requirements are fulfilled in each case. Why a puisne judge should be shifted to another State without being made a Chief Justice is seldom explained. Usually, it sets off speculation that the reasons are either allegations against the judge or the discomfiture that his judicial orders are causing to the government. Disclosure of the actual reason may not always be possible. However, it hardly needs to be stressed that transfer cannot be used as a punitive step. The time may have come for a complete review of the provisions for transfer of High Court judges.
6. Editorial-4: It’s time to discuss depopulation
Two weeks ago, when the world population touched eight billion, several headlines focused on how India was the largest contributor to the last billion and is set to surpass China as the world’s most populous nation by 2023. China’s population has begun to decline, while India’s population is expected to grow for another 40 years, they said. But missing in this conversation is the real threat of depopulation that parts of India too face, and the country’s complete lack of preparedness to deal with it.
By current United Nations estimates, India’s population will begin to decline only in 2063, by which time it will be just shy of 1.7 billion. The world’s population is expected to grow until 2086. Given that China’s population has begun to decline, these estimates about India have led to alarmist calls for restrictions on family sizes. Such remarks have increasingly assumed an anti-Muslim tone.
On the other hand, demographers, policy experts and politicians in countries such as Japan, South Korea and Europe, which are experiencing falling fertility and nearing the inflection point of population declines, are beginning to talk about what the future holds and whether reversal is possible. However, the global conversation around depopulation is missing some key elements. Without talking about equitable sharing of housework; access to subsidised childcare that allows women to have families as well as a career; and lowered barriers to immigration to enable entry to working-age people from countries which aren’t yet in population decline, the narrative can sometimes be tinged with anti-feminism and ethnic superiority. And that is precisely why India needs to step into and have this conversation.
Fertility in India
It is now well-established that fertility in India is falling along expected lines as a direct result of rising incomes and greater female access to health and education. India’s total fertility rate is now below the replacement rate of fertility. However, what needs more urgent policy intervention is the fact that parts of India have not only achieved replacement fertility, but have been below the replacement rate for so long that they are at the cusp of real declines in population. Kerala, which achieved replacement fertility in 1998, and Tamil Nadu, which achieved this in 2000, are examples. Moreover, even in States with relatively high fertility, many cities have been at the replacement rate or below the replacement rate for over a decade, if not more; the National Family Health Survey (NFHS) estimated India’s urban fertility rate in 2019-21 to be 1.6, which places it next to the U.K.
Yet, India, especially States and cities with below-replacement fertility, is not having the urgent conversation that the U.K. is having about what a future with an ageing population and a declining workforce is going to look like. In the next four years, both Tamil Nadu and Kerala will see the first absolute declines in their working-age populations in their histories. With falling mortality (barring the pandemic), the total population of these States will continue to grow for the next few decades, which means that fewer working-age people must support more elderly people than ever before. Among the female elderly in particular, economic dependence is a serious concern.
Against this backdrop, both States will also need to re-examine the continued sustainability of low in-migration. In 2011, the median Tamilian was 10 years older than the median Bihari. By 2036, they will be separated by over 12 years and the median Tamilian will be over 40 years old; the working-age population of the future will skew northwards. Yet, even though political and popular rhetoric in Tamil Nadu and Kerala often makes it appear as if these States are facing a surge of migrants from the poorer, more populous northern States, the fact is that both States had negative net migration rates, which means they sent out more migrants than they received, as of 2011, the most recent year for which this data are available. This will make access to working-age persons notably different from the situation in other States with low fertility. These include Delhi and Karnataka which are both net recipients of migrants, and will not confront population decline in the near future (though the future is uncertain given strident nativist political rhetoric across India).
Three challenges
A depopulating future poses at least three unique challenges to India. First, a skewed sex ratio remains a danger. As the latest round of the NFHS showed, families with at least one son are less likely to want more children than families with just one daughter. Second, the stark differences between northern and southern States in terms of basic literacy as well as enrolment in higher education, including in technical fields, will mean that workers from the southern States are not automatically replaceable. Third, the sharp anti-Muslim tone in the conversation has remained even though fertility between Hindus and Muslims is converging.
Conversations around fertility reductions in the southern States are often framed around the price that these States are having to pay in relation to others in terms of the share of federal tax receipts or political representation. But there is also the question of the price their own citizens will have to bear in terms of economic productivity and welfare sustainability. With decades of focus on lowering fertility, the conversation in India is stuck in a rut. It is for the southern States to break away from this outmoded, data-free rhetoric and join the global conversation on depopulation.
