Hope floats again on Section 377
Section 377 of the Indian Penal Code, which criminalises gay sex, reflects only medieval prejudice. A lost opportunity to invalidate it has been dramatically resurrected. Two years ago, the Supreme Court declined to review its retrograde decision of 2013 upholding the validity of Section 377. By rejecting the review petition, the court then failed to make use of an opportunity to revisit the contentious Suresh Kumar Koushal verdict and bring the law in line with its own vision of fundamental rights, especially the idea that equality and dignity cannot be denied to any section. The court has now paved the way for a comprehensive hearing on how to protect the dignity and rights of individuals with alternative sexual orientation by referring the matter to a five-judge Constitution Bench. The Chief Justice has noted that the case involves questions with constitutional dimensions. The court has indicated that the larger Bench could traverse beyond the limits of a curative petition, which is essentially a limited, additional remedy to aggrieved litigants after the Supreme Court’s final verdict and the rejection of a review. There is new hope that the Delhi High Court judgment of 2009, reading down Section 377 to restrict its criminal import to non-consensual sexual acts involving adults and all sexual acts inflicted on minors, may be restored.
The latest challenge to its continuance on the statute book comes in a fresh context where the intervening years have seen considerable legal progress in the jurisprudence of sexual orientation and gender identity. In April 2014, while recognising the transgender community as a third gender entitled to the same rights and constitutional protection as other citizens, a Bench of the Supreme Court subtly recorded its criticism of Koushal. Departing from the Koushal formulation that there was no evidence that Section 377 was an instrument of harassment, the Bench had highlighted the misuse of the provision as one of the principal forms of discrimination against the transgender community. Further, it observed that “even though insignificant in numbers”,transgenders were entitled to human rights. That was obviously a rebuttal of the earlier Bench’s claim that those affected by Section 377 were only a “minuscule fraction of the population”, as though the relative smallness of a group’s size disentitled it from constitutional protection. On the global front, the United States Supreme Court held last year that the gay community was entitled to due process and equal protection in the matter of marriage, thus allowing same-sex marriages. In view of these developments, the time has come for an honest judicial evaluation of where India stands on the issue of homosexuality. Some may argue that it is up to the legislature to remedy the situation. In the backdrop of a provision that continues to have criminal and public health consequences for a section of society, the court has a duty to enforce their fundamental rights rather than wait for the political class to come up with a legislative remedy.
Gearing up for the Zika threat
The World Health Organization has declared that the outbreak of Zika and congenital malformations and neurological disorders in newborns believed to be connected to the virus is a global public health emergency. Since the current outbreak began in Brazil in May 2015, nearly 1.5 million people are reported to have been affected. As of January 23, 4,180 suspected cases of microcephaly — a foetal deformation where newborns have abnormally small heads — had been reported in Brazil. There have also been cases of Guillain-Barr? syndrome, a condition in which the immune system attacks the nervous system, sometimes resulting in paralysis. A causal relationship between Zika virus and microcephaly is yet to be established, but it is strongly suspected as the virus has been found in the placenta and amniotic fluid of infected mothers and in the brains of foetuses and newborns. As the virus spreads in Latin America and the Caribbean, it has become difficult to estimate the true scale of the epidemic since the infection remains asymptomatic in nearly 80 per cent of cases. The Zika virus has the potential to spread wherever the Aedesaegypti mosquito, that transmits the infection, is found and where people lack natural immunity against it. As in the case of Ebola, no specific treatment or vaccine is currently available for the Zika virus; there are no rapid and reliable diagnostic tests either. All this is likely to change as the WHO’s declaration galvanises international response to improve surveillance, detect infections and study the causal link between Zika infection and microcephaly and Guillain-Barr? syndrome. However, unlike diagnostic tests, vaccine development may face ethical problems as it would need to be tested on pregnant women, who are the worst-affected.
Though there are stray hints of the Zika virus spreading through bodily fluids, the virus is normally spread by the Aedes mosquito. The WHO has urged all countries where dengue is endemic to be on high alert and look out for cases of Zika. The current natural immunity against the virus in the Indian population is not known. And since the Aedes, the vector for both the dengue and Zika viruses, is widespread in India, aggressive mosquito control measures are needed. India’s poor mosquito control measures are highlighted every dengue season — the number of reported cases doubled from 40,571 in 2014 to 84,391 in 2015 (up to November 15). Unlike in the case of Ebola, laboratory capacity to confirm Zika cases is needed as clinical diagnosis is unreliable; moreover, symptoms of Zika infection are similar to those of dengue. Besides the Delhi-based National Centre for Disease Control and the Pune-based National Institute of Virology, which are equipped to confirm Zika diagnoses, 10 regional laboratories could assist in testing. Surveillance for case clusters and newborns with typical symptoms too has been activated. The Union Health Ministry has advised pregnant women to “defer/cancel” travel plans to Zika-affected countries. Given the prevalence of the Aedes in India, public health authorities must strengthen contingency plans