Last month, without much fanfare, the commerce minister announced that the central government was encouraging states to put in place the self-certification of boilers at factories, a deft way of getting around the cumbersome The Boilers Act of 1923. The Act has long been the bugbear of industry and has inevitably created a web of corruption.
The colonial act is a reminder of how many of our laws date back to British times and how archaic they seem in the 21st century. I have spent a good amount of time reporting from factories in southern China in the past few years and I am not sure I can remember actually seeing a boiler. Our Factories Act similarly has its origins in legislation in the UK from 1833.
It is five years since the landmark Delhi High Court judgment ruled parts of Section 377 of the Indian Penal Code unconstitutional. Section 377 is another bizarre legacy of the British Raj. Where the Boilers Act puts the small factory owner at the mercy of the factory inspector, 377, in essence, would allow the police into our bedrooms. Dating back to 1861 and steeped in the Judaeo-Christian guilt of the Victorian era, the weirdly worded diktat prohibits sexual acts deemed "against the order of nature".
377 has been wrongly characterised as criminalising sex between gay men. Depending on how it is interpreted, it prohibits many forms of sex such as oral sex, effectively allowing only sex for procreation. In India, it has on occasion been interpreted wildly; even to lock up for more than 50 days workers handing out condoms and safe sex literature, and by police to harass gay men and transgender people.
In July 2009, in an elegantly written and exhaustively researched judgment, the Delhi High Court ruled that the parts of 377 that pertained to sex between consenting adults were unconstitutional. The judges found that this section of the penal code violated principles of equality, human dignity and privacy. And it persuasively argued that the judiciary had a right, even a duty, to intervene. "A modern democracy ... implicitly recognises the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights," the judges said. "Full judicial review is an integral part of the constitutional scheme." The judgment even quotes from a speech by Jawaharlal Nehru in the Constituent Assembly in 1946. Read it: it is a civics lesson and a lesson in law in 105 pithy pages, which makes one grateful to be Indian and grateful for our judiciary.
Last December, it was infamously set aside by the Supreme Court. This month or next, the Supreme Court will hear a curative petition to determine whether the decision was correct. Why the country's highest court took a 180-degree turn is almost impossible to answer. In response to a petitioning lawyer's reasonable comment that "a law made on Victorian notions of sin needed to be interpreted by the court" in a contemporary ethos, judge G Singhvi responds that there were two divergent views about what constitutes economic development and the court was not about to enter into such debates.
This was followed by a riff on how people are driving fancy cars these days and sometimes drinking and driving and killing people and that this was an issue that should be considered by Parliament as well. Somewhere between the Judge's observations on western writers' views on our cricketers and Nestle chocolates being widely consumed by villagers, I became thoroughly confused. Lawyers for the petitioners have criticised the judge's characterisation of the gay and lesbian population in this country as minuscule. It is hard to imagine any minority in this democracy of 1.2 billion being so small that their rights do not deserve protection. In any case, gays and lesbians are often estimated to be seven to 10 per cent of any given population, which might well make their numbers in India larger than the number of villagers who eat Nestle chocolates.
The lawyer Menaka Guruswamy, who represented Shyam Benegal, an intervener in the case, argued in The Indian Express that the Supreme Court, by siding with a diverse consortium that included Christian groups from Kerala, the All India Muslim Personal Law Board and the Krantikari Manuwadi Morcha, "criminalises all of us. It diminishes the constitutional promises of equality, dignity and fraternity for and by all Indians".
The December judgment puts India in the company not of common law democracies as Nehru envisioned, many of which have moved to allow same-sex marriages in the past few years, but of very illiberal regimes such as Uganda and Russia. As the United Nations High Commissioner for human rights observed in a statement to the general assembly some years ago, such laws are similar to Apartheid-era laws that criminalised sex between whites and blacks. The proceedings that led to the December judgment by the Supreme Court had almost too much discussion of sex to reprint in this family newspaper and rather less on the basic human rights of equality and privacy. We should be glad B R Ambedkar, that valiant defender of constitutional liberties, is not alive today. Then again, he would have argued the case against 377 brilliantly. In Annihilation of Caste, he wrote, "Once you enable (people) to realise that what they are told is religion is not religion but that it is really law, you will be in a position to urge its amendment or abolition."
Twitter: @RahulJJacob
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