A lost opportunity Section 377

There are occasions when the finality of a judicial verdict is in unfortunate conflict with the interests of justice. The contentious case of Section 377 of the Indian Penal Code is one such. By declining to review its retrograde decision to uphold the validity of Section 377, the Supreme Court has lost an opportunity to revisit a verdict that has drawn widespread criticism for failing to extend constitutional protection to sexual minorities. While it is true that the scope for review is limited, there was some hope for the LGBT community when the Union government came forward to seek a review of the December 2013 verdict in Suresh Kumar Koushal. Many jurists, activists and political leaders felt the ruling overturned a well-reasoned judgment of the Delhi High Court, which had read down Section 377 to de-criminalise consensual sex among adults irrespective of gender. It was seen as incongruous with the mores of our times. The verdict required a review on merits because of some intriguing conclusions. The Bench had ruled that those indulging in carnal intercourse against the order of nature constituted a different class, and that Parliament could treat the category differently from others. It had failed to see that order of nature is itself an artificial construct rooted in the outdated view that alternative sexuality is unnatural. It had dismissed the LGBT community as a minuscule fraction of the population, as though the relative smallness of a group disentitled it to constitutional protection. While holding that Section 377 suffered from no infirmity, the Bench had said it was open to the legislature to delete or amend it. The verdict had cast a shadow of doubt on the judiciarys decisiveness in enforcing fundamental rights. In a recent case concerning death row convicts and mercy petitions, it was reaffirmed that the Supreme Court was best equipped to adjudicate the content of fundamental rights. This Court has always granted relief for violation of fundamental rights and has never remanded the matter, it said. The Bench that declined to review the verdict could have taken inspiration from these words and examined afresh the sections chilling effect on fundamental rights, instead of leaving it to the legislature. A curative petition could provide one more avenue of redress, but its scope is limited to judgments passed in violation of principles of natural justice or in circumstances suggesting bias on the part of the court. The situation is ripe for a legislative solution, but the process may not be easy, for not all members and parties will be able to resist the influence of religious conservative groups that are likely to oppose any amendment. Keywords: Section 377, Indian Penal Code, LGBT community, homosexual, gay sex, Supreme Court order, sexual minorities, judicial verdict

Tensions in Ukraine
The unrest in Ukraine, which recently flared into violence, is dividing the country and intensifying long-standing tensions between Russia and the West. Public protests started in December 2013 over President Viktor Yanukovychs dec ision to abandon a deal with the European Union in favour of aid and natural gas agreements with Russia. The protesters, who for weeks were peaceful and even returned equipment to the police after water cannon was used to disperse crowds in the capital, Kiev, have seized government offices across the country, including the Justice Ministry. Their demands include an end to corruption and self-enrichment by the ruling political elite, and at least four people have died as security forces opened fire. Mr. Yanukovych has softened his position by putting an amnesty for protesters through Parliament and by offering the prime ministership and deputy prime ministership to the respective opposition leaders, Arseny Yatsenyuk and Vitali Klitschko. But the opposition parties are furious that the amnesty requires the protesters to vacate the occupied buildings, and the offer of political posts has been rejected. Mr. Yanukovych has now taken a time-out by going on sick leave, but his cosmetic measures are bound to fail because Ukraine is a prize in a geostrategic tussle between Russia and the West. To start with, the Presidents policies since his election in 2010 have troubled a substantial section of Ukraines 46 million people, especially those in the western regions, who support accession to the EU. Eastern Ukrainians, however, prefer closer links with Russia. Secondly, the EU deal was tied to an IMF bailout that would require public-spending cuts and higher gas prices. Thirdly, NATO and Ukraine have held joint exercises, which they have progressively enlarged, though Parliament cancelled the 2009 manoeuvres. The EU association agreement proposes deeper Ukraine-NATO links, though only 30 per cent of Ukrainians favour NATO membership; such proposals fuel support for aggressively ethno-nationalist far-right coalitions such as Prawy Sektor (Right Sector). Russian President Vladimir Putin, for his part, has blocked the Kiev-EU agreement with 15 billion in aid, cheaper gas supplies, and trade deals. While Moscow sees NATO as trying to encircle Russia, the Atlantic alliance has repeatedly tried to invent new roles for itself since the Soviet Union and the Warsaw Treaty Organisation collapsed in 1991, and both NATO and the IMF have in effect tried to hijack the EUs relations with Ukraine; neither Ukrainians nor the EU must allow themselves to be traduced thus, and Ukraines future direction must be decided solely by Ukrainians. Keywords: President Viktor Yanukovych, Ukraine politics, European Union, Kiev-EU agreement, natural gas agreements 31-01-2014