Editorials/Opinions Analyses For UPSC 21 October 2021

Contents

1. For change: On same-sex relations and society
2. The outlines of a national security policy

For change: On same-sex relations and society

Context:

A recent advisory from the National Medical Commission (NMC) emphasising the need to avoid derogatory references to the LGBTQIA+ community in medical textbooks or teaching methods has underscored the value of institutional awareness on issues concerning queer and trans people.

Relevance:

GS-I: Indian Society, GS-II: Social Justice (Social Empowerment, Issues Related to Transgenders)

Dimensions of the Article:

1. Who are Transgenders?
2. What is the difference between Sex and Gender?
3. Notable events in the world
4. Issues faced by LGBTQ+ in India
5. Indian Constitution- Launch pad for jurisprudence
6. Recent Proceedings in the Judiciary
7. Justice N. Anand Venkatesh’s guidelines
8. Navtej Singh Johar & Others v. Union of India
9. Essential ingredients of Navtej Singh Johar Verdict
10. Legal sanction opposed

Who are Transgenders?

• The term ‘Transgender’ refers to those who don’t identify themselves completely with either of the dichotomous genders – male/female.
• The American Psychological Association and World Professional Association for Transgender Health define them as ‘people whose gender identity (sense of themselves as man or woman) or gender expression differs from that usually associated with their birth sex.
• This grouping constitutes a significant minority, estimated to be around 25 crores globally in number.
• They are non-heterosexual individuals.

What is the difference between Sex and Gender?

• The World Health Organization (WHO) has clearly demarcated the difference between these often interchangeably used terms.
• According to WHO, Sex refers to the biological and physiological characteristics that define men and women while Gender refers to the socially constructed roles, behavior, activities and attributes that a given society considers appropriate for men and women.

Notable events in the world

• Stonewall Uprising: The Stonewall Uprising was a tipping point for the Gay Liberation Movement in the United States – which was a series of spontaneous demonstrations by members of the gay community in response to a police raid that began at the Stonewall Inn in New York City in 1969. Patrons of the Stonewall, other Village lesbian and gay bars, and neighborhood street people fought back when the police became violent. The riots are widely considered a watershed event that transformed the gay liberation movement and the twentieth-century fight for LGBT rights in the United States.
• Dr. Frank Kameny (1925-2011), an American astronomer, veteran, and gay rights activist in the early 1970s, ‘successfully challenged the American Psychiatric Association’s classification of homosexuality as a mental disorder’.

Issues faced by LGBTQ+ in India

• Social discrimination, deprivation of liberty, lack of employment and educational opportunities, limited access to health care etc.
• Forced or bonded labour, denial of use of a public place, denial of residence in household, village
• Physical, sexual, verbal, emotional and economic abuse
• They live under constant fear and psychological stress.

Indian Constitution- Launch pad for jurisprudence

• The Constitution was conceived by India’s founding fathers as a beacon of fundamental rights, leading once enslaved Indians to the promised land of life and freedom.
• The Constitution was conceived by India’s founding fathers as a beacon of fundamental rights, leading once enslaved Indians to the promised land of life and freedom.
• In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC which criminalizes homosexuality.
• The Supreme Court of India’s ruling in Navtej Singh Johar & Ors. vs Union of India (2018) has provided a launch pad for the LGBTQ+ jurisprudence and queer liberation movement in India.
• The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was also a major landmark in the law of sexuality and equality jurisprudence in India as the SC held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution.
• Despite the judgments of the Supreme Court, full equality is still something to be realised for the queer community in India. In matters of employment, health and personal relationship, there is still a lot of discrimination against sexual minorities.

Recent Proceedings in the Judiciary

• Recently the Madras High Court voiced concern over “unscientific and derogatory information” in some textbooks regarding LGBTQIA+ community. The National Medical Commission (NMC) cautioned medical universities, colleges and other institutions to avoid such references while teaching subjects relating to gender.
• Judicial intervention generally has a salutary effect on the behaviour of the state, its institutions and structures. However, barring specific directions, the spirit of judicial orders, especially with regard to social issues, rarely percolates to every limb of the administration.

Justice N. Anand Venkatesh’s guidelines

• The circular on derogatory references to LGBTQIA+ represents the fruition of efforts by Justice N. Anand Venkatesh, who framed guidelines in an order in June 2021, to protect the community’s rights.
• The judge had also directed the police not to harass sexual minorities, but later noted with consternation that such harassment was not only continuing, but sometimes extended to NGOs and other allies of the LGBTQIA+ community.
• He mooted changes to the police conduct rules to provide for punishing erring police personnel in this regard. He also noted disparaging references in the media.

Navtej Singh Johar & Others v. Union of India

• In 2018, in the Navtej Singh Johar & Others v. Union of India, the Constitution Bench of the Supreme Court struck down a part of Section 377 of the Indian Penal Code as unconstitutional as it offended right to privacy.
• As noted in K.S. Puttaswamy case, privacy has been treated as a fundamental right and a premise for this upliftment was that the privacy of the individual is an essential aspect of dignity.
• The Court held that Section 377 of the IPC insofar as it criminalizes consensual sexual acts between adults of whatever sexual orientation is an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture.
• For two decades, the battle for LGBT rights in India coalesced around Section 377, which was seen as the root issue for a series of problems – violent “therapy” to cure homosexuality, forced marriages, violence by police or state, lack of access to health care or education.
• The judgment encouraged a clutch of LGBT persons to approach lower courts to demand police protection from their families or demand constitutional rights.

Essential ingredients of Navtej Singh Johar Verdict

• The basic principle of the dignity and freedom of the individual is an attribute of natural law, which is manifested as basic or fundamental rights of all individuals in a constitutional democracy.
• Dignity has a central normative role as well as constitutional value. This normative role is performed in three ways:
  • First, it becomes basis for constitutional rights;
  • Second, it serves as an interpretative principle for determining the scope of constitutional rights;
  • Third, it determines the proportionality of a statute limiting a constitutional right.
• Thus, if an enactment puts a limitation on a constitutional right, and such a limitation is disproportionate, such a statute can be held to be unconstitutional by applying the doctrine of proportionality.
• SC upheld the rights of the minority over the opinion of the majority. SC noted that under the constitutional scheme no minority group must suffer deprivation of a constitutional right because they do not adhere to majoritarian views.
• SC noted the importance of individual liberty over community preferences. SC said that “Denial of self-expression is like death”.
• SC has noted that modern psychiatric studies and legislation recognizes that gay persons and transgenders are not the person suffering from mental disorder and therefore cannot be penalized.
• SC noted that decriminalization of homosexuality was necessary to bury the stigma related to sexual orientation of individual in society.
• SC has noted that homosexuality is documented in 1,500 species and is not unique to humans hence it dispel the prejudice that it is against the order of nature.
• Constitutional morality triumphs over societal morality
  • SC judgment laid emphasis on “transformative constitutionalism”, that is, treating the Constitution as a dynamic document that progressively realizes various rights.
  • The judgment said that “Constitutional morality is not confined to the literal text of the Constitution, rather, it must seek to usher in a pluralistic and inclusive society.”
  • It also mentioned that Constitutional morality triumphs over social morality and personal freedom and the idea of individual rights are free from the pressure of public opinion.
  • The doctrine of non-retrogression, which means that once a right is recognized, it cannot be reversed was emphasized.
  • It also emphasized that “unbridgeable divide” between the moral values on which Section 377 is based and the values of the Constitution.

Legal sanction opposed

• The Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India stating that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry.
• This was stated in response to the Delhi High Court notice to a plea by LGBTQ+ activists and couples who sought recognition of same-sex marriages.
• The Delhi High Court issued notice to the Centre on a petition seeking a direction to the government to recognise same-sex marriages under the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA).
• It added that there was nothing in the HMA that mandated that marriage should take place only between a Hindu man and a Hindu woman.

A case to Amend Article 15

In 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation and in India we already have Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them – sexual orientation however is missing in our Article 15.

-Source: The Hindu

The outlines of a national security policy

Context:

In the 21st century, cybertechnology enters as an important variable in nations’ defence policies – due to the earlier 20th century innovations in cybertechnology and software developments.

Relevance:

GS-III: Internal Security Challenges (Cybersecurity, Cyber warfare, Challenges to Internal Security Through Communication Networks)

Dimensions of the Article:

1. What is Cyber Attack and Cyber Security?
2. Cyberwarfare and Cyberterrorism
3. Four dimensions of national security policy

What is Cyber Attack and Cyber Security?

• A cyber-attack is an assault launched by cybercriminals using one or more computers against a single or multiple computers or networks. A cyber-attack can maliciously disable computers, steal data, or use a breached computer as a launch point for other attacks. Cybercriminals use a variety of methods to launch a cyber-attack, including malware, phishing, ransomware, denial of service, among other methods.
• Cybersecurity means securing the cyberspace from attack, damage, misuse and economic espionage. Cyberspace is a global domain within the information environment consisting of interdependent IT infrastructure such as Internet, Telecom networks, computer systems etc.

Cyberwarfare and Cyberterrorism

• Cyberwarfare utilizes techniques of defending and attacking information and computer networks that inhabit cyberspace, often through a prolonged cyber campaign or series of related campaigns. It denies an opponent’s ability to do the same, while employing technological instruments of war to attack an opponent’s critical computer systems. Cyberterrorism, on the other hand, is “the use of computer network tools to shut down critical national infrastructures (such as energy, transportation, government operations) or to coerce or intimidate a government or civilian population”. That means the end result of both cyberwarfare and cyberterrorism is the same, to damage critical infrastructures and computer systems linked together within the confines of cyberspace.

Emergence of cyberwarfare

• Geographical land size or GDP size will be irrelevant in war-making capacity or deterrence in the 21st century, after cybertechnology enters as an important variable in nations’ defence policies.
• These fundamental changes are entirely due to the earlier 20th century innovations in cybertechnology and software developments. Drones, robots, satellites and advanced computers as weapons are already in use.

Four dimensions of national security policy

Objectives

• The objective of the National Security Policy in the 21st century is to define what assets are required to be defended, the identity of opponents.
• Although the novel coronavirus is perhaps accidental, it has completely destabilised peoples globally and their governments in all nations of the world over.
• This is a preview of the kinds of threats that await us in the coming decades which a national security policy will have to address by choosing a nation’s priorities.

Priorities

• National security priorities will require new departments for supporting several frontiers of innovation and technologies such as hydrogen fuel cells, desalination of seawater, thorium for nuclear technology, anti-computer viruses, and new immunity-creating medicines.
• This focus on a new priority will require compulsory science and mathematics education, especially in applications for analytical subjects.

Strategy

• The strategy required for this new national security policy will be to anticipate our enemies in many dimensions and by demonstrative but limited pre-emptive strikes by developing a strategy of deterrence of the enemy.
• For India, it will be the China cyber capability factor which is the new threat for which it has to devise a new strategy.

Resource mobilisation

• The macroeconomics of resource mobilisation depends on whether a nation has ‘demand’ as an economic deficit or not.
• If demand for a commodity or service is in deficit to clear the market of the available supply of the same, then liberal printing of currency and placing it in the hands of consumers is recommended for the economy to recover the demand-supply parity.
• A way to increase demand is by lowering the interest rate on bank loans or raising the rates in fixed deposits which will enable banks to obtain liquidity and lend liberally for enhancing investment for production.
• If it is ‘supply’ that is short or in deficit compared to demand, then special measures are required to incentivise to encourage an increase in supply.

-Source: The Hindu