An unacceptable verdict in the constitutional sense
A judgment by the Allahabad High Court recently, declining the prayer by an inter-faith couple in a live-in relationship for protection from police harassment has caught national attention. The judgment in Kiran Rawat vs State of UP negates the very idea of constitutional morality in personal relations, which the Supreme Court of India has repeatedly affirmed. The High Court in its judgment implied that the live-in relationship is a “social problem”.
The case of the petitioners, a Muslim man and a Hindu woman, was short and simple: They are around 30 years of age, living together and their relation is based on mutual love and affection. They alleged that the local police have been torturing them while living in a rented house, and sought protection from police harassment, allegedly done on the basis of a complaint made by a family member.
The judgment by the High Court is unacceptable in the constitutional sense. First, the court is ostensibly carried away by the notions of conventional social morality rather than the constitutional principles on individual autonomy and personal liberty. Second, in the process, the court also discarded several Supreme Court judgments, even after citing them, by giving untenable reasons. Third, the High Court travelled much beyond the brief and relied on personal laws on marriage which were irrelevant.
The Allahabad judgment said that Supreme Court verdicts on live-in relationships such as D. Velusamy (2010), Indra Sarma (2013) and Dhanu Lal (2015) were not intended “to promote such relationships” and that the law traditionally has been “biased in favour of marriage”. Thereby, the High Court essentially rejected the precedential value of the top court verdicts. The High Court also made an unnecessary reference to Section 125 of the Criminal Procedure Code (Cr.PC) which talks about maintenance to wives (and not “other women”). The High Court also said that extramarital and premarital sex are not recognised under the Muslim law. Even the “sexual, lustful, affectionate acts such as kissing, touching, staring etc.” prior to the marriage, are ‘Haram’ in Islam, says the judgment.
An inclination towards orthodoxy
Though there were many deficits in the petition, the High Court could not have assumed that marriage is a condition precedent for constitutional protection and the exercise of fundamental rights. In effect, it acted as a theological court, as if the very idea of individual liberty and autonomy are alien to the writ jurisdiction. The verdict shows a clear inclination towards social orthodoxy and religious revivalism. In the guise of constitutional adjudication, the court only tried to reiterate the traditional beliefs on marriage and morals.
The Supreme Court verdicts on fundamental rights are not mere adjudication of the inter-party disputes, as fallaciously conceived by the High Court. The law laid down by the Supreme Court is binding on all the courts in the country, as in Article 141 of the Constitution. In the process of constitutional adjudication, the top court is not ‘encouraging’ or discouraging any social practice or human conduct.
For example, in Joseph Shine vs Union of India (2018), the Court decriminalised adultery as defined under Section 497 of the Indian Penal Code (IPC). This was done since the state’s police power cannot be used for punishing individual moral aberrations. In the words of Deborah L. Rhode, “Fidelity is a value, but not one that the state should police” (Adultery: Infidelity and the Law, Harvard University Press). In Navtej Singh Johar (2018),while substantially striking down Section 377 of the IPC dealing with same sex relations, the Supreme Court made a constitutional adjudication rather than mere moral judgment. The libertarian value of these judgments lies in their capacity in limiting the state’s power in the realm of personal choices.
Upholding personal liberty
The Supreme Court judgments, cited in the Allahabad verdict, also upheld personal liberty and laid down the law in that regard. In Lata Singh (2006), the Court directed police authorities throughout the country to see to it that any adult undergoing inter caste or inter religious marriage is not harassed by anyone. In S. Khushboo vs Kanniammal & Anr. (2010), the Supreme Court held: “While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting”. It was only a restatement of law.
But the Allahabad High Court said that the observations of the Supreme Court in these judgments were made in the context of the facts of the respective cases. Facts of every case will vary from one another and there cannot be precedents on facts. But that does not mean that the High Court can disregard the proposition of law laid down by the Supreme Court on questions of fundamental rights.
The petitioners in the Allahabad case only asserted their right not to be tortured by the police and did not pray for a moral evaluation of their decision to live together. They relied on the law laid down by the top court. The High Court ought to have sought further particulars if required and endorsed the couple’s fundamental right, without conducting an unwanted and irrelevant survey of the personal laws on marriage. The judgment is a classic case of judicial indiscipline which the Supreme Court will, hopefully, set right as early as possible. To imply that the moral lessons of personal laws will supersede the constitutional tenets is a serious adjudicatory mishap.
A recent Allahabad High Court judgment negates the very idea of constitutional morality in personal relations, which the Supreme Court of India has affirmed.
The first GSI survey of the Siachen
In June 1958, V. K. Raina, a top Indian geologist, led the first Geological Survey of India expedition to the Siachen glacier. This event is of historical and geostrategic significance as it puts to rest all myths to the effect that Pakistan was in control of the glacier since the beginning
While everyone is familiar with the grid reference point NJ 9842 as it is the last mutually demarcated point between India and Pakistan as per the Karachi ceasefire agreement of 1949 and also the point where the Line of Control of the Simla Agreement ends, not many people are familiar with what 5Q 131 05 084 stands for. This is the number assigned to the Siachen glacier by the Geological Survey of India (GSI).
June-August 2023 marks the sapphire jubilee of a very important event in the history of the exploration of the Siachen glacier. Unfortunately barring B. G. Verghese, most of the scholars who have written on this subject as well as mountaineers of repute who have documented all the visits to this part of the world, have failed to record and give this event its due importance.
The first Siachen survey
In June 1958, exactly 65 years ago, V. K. Raina, a top Indian geologist, who at that time was an Assistant Geologist with the GSI led the first GSI Survey of the Siachen glacier. Little would Mr. Raina have known that the peaceful environs he surveyed in 1958 would become a bone of contention between India and Pakistan in the future and the site of Operation Meghdoot launched by the Indian Armed forces in 1984.
In 1956, Mr. Raina had been a part of the Saser Kangri expedition conducted by the Himalayan Mountaineering Institute of Darjeeling. During this time, he studied the geology and geomorphology of the Nubra Valley upto Panamik. Thereafter, in 1957, he was involved in the geological survey of the alignment of the proposed Leh-Manali Highway which was only a mule track at that time.
1958 was an important year for geologists all over the world as it was celebrated as the International Geophysical Year. To commemorate this event, various activities had been planned by different geological institutes all over the world. While some institutes planned research trips to the Arctic Circle or the Antarctica, the GSI, with its limited resources, proposed to conduct a study of the Himalayan glacier systems which included snout monitoring of the glaciers in the Sikkim Himalayas, Kumaon Himalayas as well as the Kashmir Himalayas. The responsibility of snout surveying five glaciers in the Ladakh region was given to Mr. Raina. These were the Siachen, Mamostong, Chong Kumdan, Kichik Kumdan and Aktash glaciers.
Mr. Raina recalls that a budget of ₹17,000 was sanctioned for the survey after which he, accompanied by his colleague P. C. Mehrotra and a team of Sherpas and other support staff started their journey to the Siachen glacier in June 1958. Raina recalls travelling from Calcutta to Pathankot by train, then to Srinagar by bus from where he chartered a Dakota to reach Leh. Thereafter the team trekked on foot and with mules to reach Siachen after about a week. They spent almost three months camping at the base of the glacier and conducted various studies which required them to traverse five to six kilometres upstream of the snout every day to establish various survey and picture points.
Mr. Raina vividly remembers that the snout of the glacier at that time was a jumbled mass of practically inaccessible ice which exhibited an arc like depression towards the centre with the concave side facing the front or downstream. However just two kilometres upstream, the glacier showed a spectacular change in its appearance showing a clear white stream flowing into the mountains as far as the eye could see. According to Mr. Raina, in August/October 1958 the Siachen glacier exhibited two ice caves which were about 100 metres apart. While the southern cave was visible from the level plateau downstream of the snout, the northern one could only be seen after going high up the eastern wall upstream of the snout. The Nubra River could be seen flowing out from the northern ice cave before it disappeared under the glacier ice and emerged out of the southern ice cave. “As part of the survey procedure we prepared a large scale map of the snout region with the help of plane table and telescopic alidade. Cairn marks were erected and painted to fix the position of the glacier front and the ice caves. The position of each reference station (A as well as B) which was used as a triangulation point was fixed by taking a bearing of the peaks in the neighbourhood and erecting large stone cairns so as to make the mark visible from a distance. Five photographic stations were established and pictures of the glacier and the other features were taken from different angles for comparison and correlation in the future. These stations were also marked by red paint and stone cairns were erected over them”, explains Mr. Raina.
During these three months no mountaineering expedition or visitor crossed Mr. Raina and his team. ‘We saw snow leopards and ibexes but no humans other than those who were a part of my team’, recalls Mr. Raina. Considering the fact that, post 1947, this was the first official Indian survey of the Siachen glacier by the GSI and that too as part of its International Geophysical Year commitments, it was a very well-publicised event especially within academic and international scientific communities. If during this period Pakistan did entertain any idea of this region falling on its side of the ceasefire line, then it would surely have lodged a protest against it. However there were no such protests and there is no contemporaneous document to this effect from Pakistan.
There could be two possible reasons for Pakistan’s general lack of interest in the continued Indian presence on the glacier at that time. Firstly, both India and Pakistan were abiding by the terms of the Karachi ceasefire agreement of 1949 under which they had clearly delimited the entire cease fire line right up to the glaciers and agreed to mutually demarcate it. Even though the region beyond NJ 9842 was pending mutual demarcation and delineation ,it was evident that if the line were to proceed north right till the glaciers as envisaged under the agreement then this region would still fall on the Indian side. And secondly, since explorations and scientific visits did not pose any threat or give either side any reason to believe that the other may physically occupy the region contrary to the explicit agreement, not much importance was given to them.
No claim to the glacier
However, for a country which for long has relied on incorrect maps and consequent permissions sought by various explorers from it to bolster its claim to the Siachen, Pakistan’s continuous and complete silence on the first GSI expedition to the glacier in 1958 is indeed deafening especially because this was not a private exploratory excursion but an official scientific study sanctioned by the Government of India. Deafening, yes, but not surprising because any acknowledgement of the presence of Indian scientists on the glacier for over three months in 1958 without any noise from Pakistan would have conclusively established its complete absence from the region. Thus, this expedition has immense historical and geostrategic significance as it puts to rest all myths to the effect that Pakistan was present or in control of the glacier since the beginning.
It is pertinent to note that it is only 25 years later that Pakistan for the first time formally staked its claim to this region (contrary to the Karachi ceasefire agreement) by unilaterally extending the Line of Control from NJ 9842 till the Karakoram Pass in its protest notes of August 1983 (contrary to the Simla Agreement). This set the alarm bells ringing in India and put into motion a chain of events which resulted in India pre-empting Pakistan and occupying the strategic Saltoro Heights on April 13, 1984.
The writer is an independent Researcher and author of Meghdoot: The Beginning of the Coldest War
1958 was an important year for geologists all over the world as it was celebrated as the International Geophysical Year. To commemorate this event, the GSI, with its limited resources, proposed to conduct a study of the Himalayan glacier systems which included snout monitoring of the glaciers in the Sikkim Himalayas, Kumaon Himalayas as well as the Kashmir Himalayas.
If during this period Pakistan did entertain any idea of this region falling on its side of the ceasefire line, then it would surely have lodged a protest against this survey. However, there were no such protests and there is no contemporaneous document to this effect from Pakistan.
It is pertinent to note that it is only 25 years later that Pakistan for the first time formally staked its claim to this region by unilaterally extending the Line of Control from NJ 9842 till the Karakoram Pass.
Work in progress
The 50th GST Council meet lifts the fog on many areas; execution holds the key
Meeting after nearly five months, the Goods and Services Tax (GST) Council on Tuesday unravelled some knotty issues that were hanging fire for a long time, such as the constitution of Appellate Tribunals and the tax treatment for the booming online gaming industry. With the appointment norms for tribunal members cleared, the Centre has given an assurance that the first set of tribunals should become operational in four to six months. While States have proposed 50 tribunal benches, these will come up in a phased manner, beginning with State capitals and cities with High Court benches. Industry may hope for quicker redress of mounting GST litigations clogging up courts. On the other hand, businesses have reacted with much consternation to the Council’s decision to finalise a 28% GST levy on the face value of all bets placed in online games, casinos or horse-racing, with many e-gaming players terming it a death knell for the growing industry and its thousands of jobs. This was not a hasty decision, having been considered by a ministerial group of the Council not once, but twice since its formation in late 2020. Finance Minister Nirmala Sitharaman said the Council acknowledged that Goa and Sikkim rely heavily on casino-driven tourism revenues, but also examined the moral question of whether this can be equated to the more compassionate tax treatment warranted for essential goods and services. With the Electronics and IT Ministry also formulating a policy for online gaming, this decision, requiring an amendment to the GST law, may yet need some review and fine tuning.
The Council also granted tax exemptions, reduced or clarified some rates and regularised past incongruencies in tax payments on some items owing to confusion about their classification. So, food and beverages in cinema halls will now attract a lower 5% GST, as would unfried, uncooked snack pellets, fish soluble paste and imitation zari yarn. It is not clear why the Council took six years after the GST regime’s launch to tweak these rates. Exempting drugs imported for cancer and some rare diseases, for instance, could have been envisaged earlier as well, just as the intended higher tax levy on sport utility vehicles could have been. Dissuading the use of larger personal vehicles is an obvious necessity for a country where traffic congestion is intense and widespread. The impact of some decisions on individual sectors will depend on the fine print, but the Council, which may meet less frequently in the upcoming poll season, has taken its eye off the promised overhaul of GST rates. No successor was named to steer the ministerial group on rate restructuring, previously helmed by erstwhile Karnataka Chief Minister, B.S. Bommai.
NATO must change the very paradigm that set the Ukraine conflict in motion
Members of the North Atlantic Treaty Organization (NATO) met in Lithuania to take stock of their military and financial support to Ukraine in the face of Russian aggression there, but came away without offering any timetable to induct Ukraine, much to the chagrin of Ukrainian President Volodymyr Zelenskyy. Mr. Zelenskyy, who vented his frustration after the summit, has only received reassuring words from U.S. President Joe Biden to the effect that Russian President Vladimir Putin “wrongly believes he can outlast Ukraine”. Mr. Zelenskyy’s apparent sense of disappointment is likely to have been multiplied by the fact that as of April, Finland became the 31st member, and with Turkey withdrawing its objections, it is only a matter of time until Sweden signs its documents of accession. In reality, NATO has not only gone to great lengths to support Ukraine’s war efforts directly but has also waived its Membership Action Plan. This plan is a series of political and military steps to ensure that the prospective new entrant is a functioning democracy based on a market economy, that its military is under tight civilian control, that it shows commitment to the peaceful resolution of conflicts, that it treats minority populations fairly, and that it has the ability and willingness to contribute to NATO operations.
While the summit meeting offered NATO a chance to take a reflective pause on the war, the Organization’s leaders appeared to have glossed over a critical existential question: would this not be an important time for NATO to consider going slow on its recruitment campaigns, the point of contention that Mr. Putin has used to make an argument for Russia waging war? Certainly, there is a chicken-and-egg dimension to this debate, and NATO has been particularly activated ever since Moscow’s unprovoked military incursion into Georgia in 2008 and subsequent annexation of Crimea in 2014. Yet war — even a war by proxies — is never a predictable prospect between the nuclear-armed rivals of the Cold War years. Rather than digging in their heels and setting the stage for further military escalation — now with the added cruelty of the cluster munitions promised by Mr. Biden to Mr. Zelenskyy — NATO leaders would have done well to explore potential pathways to a ceasefire and temporary cessation of hostilities. It is true that Mr. Putin is likely to remain undeterred in his ambition for territorial acquisition fuelled by the shadowy inner politics of the Kremlin — yet if NATO is a grouping that genuinely cares about market economies, democracy, human rights, and peace, it needs to work towards changing the very paradigm that set this avoidable conflict in motion in the first place.
VSSC unit to undertake system checkouts ahead of Chandrayaan-3 launch
On Friday afternoon, the spotlight will be on the Satish Dhawan Space Centre, Sriharikota, from where India’s third moon mission will take to the skies. But some of the action, before the liftoff, will take place at the Vikram Sarabhai Space Centre (VSSC) at Thumba here.
The virtual launch control centre (VLCC) at the VSSC will have an important role to play in safely seeing off the powerful Launch Vehicle Mark-III (LVM3) — launch vehicle carrying the Chandrayaan-3 spacecraft.
The facility allows the Indian Space Research Organisation (ISRO) to remotely carry out system checkouts on the launch vehicle prior to a mission.
For Friday’s launch, scheduled for 2.35 p.m., all system checkouts up to 14 minutes and 30 seconds before lift-off from Sriharikota will be remotely carried out from the VLCC, a VSSC official said.
“The VLCC will be fully operational on Friday. System checkouts, including those of the electronics, actuators and commands, will be carried out from the VLCC to make sure that they are operating properly. The launch command will be given from Sriharikota,” the official said.
“At 14 minutes, 30 seconds, the launch vehicle will be in auto launch sequence under the onboard computer,” the official added.
The VSSC is the ISRO’s lead unit for launch vehicles, and responsible for the design and development of the LVM3 (formerly GSLV Mk-III) launch vehicle.
The Chandrayaan-3 spacecraft is composed of the Propulsion Module and the Lander and Rover aboard it.
A replica of the launch control centre at Sriharikota, the VLCC at Thumba was operationalised during the COVID-19 pandemic when large-scale movement of personnel for space missions was out of the question.
Since then, the facility, manned by a small group of scientists, has been activated for various missions including the LVM3 M2/OneWeb India-1 mission in October 2022.
SOURCE : THE HINDU