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Archives for : September2017

What the Media isn’t Telling You About North Korea’s Missile Tests

Photo by Stefan Krasowski | CC BY 2.0

Here’s what the media isn’t telling you about North Korea’s recent missile tests.

Last Monday, the DPRK fired a Hwasong-12 intermediate-range ballistic missile over Japan’s Hokkaido Island. The missile landed in the waters beyond the island harming neither people nor property.

The media immediately condemned the test as a “bold and provocative act”  that showed the North’s defiance of UN resolutions and “contempt for its neighbors.” President Trump sharply criticized the missile test saying:

“Threatening and destabilizing actions only increase the North Korean regime’s isolation in the region and among all nations of the world. All options are on the table.”

What the media failed to mention was that,  for the last three weeks, Japan, South Korea and the US have been engaged in large-scale joint-military drills on Hokkaido Island and in South Korea. These needlessly provocative war games are designed to simulate an invasion of North Korea and a “decapitation” operation to remove (Re: Kill)  the regime. North Korea’s supreme leader, Kim Jong-un has asked the US repeatedly to end these military exercises, but the US has stubbornly refused. The US reserves the right to threaten anyone, anytime and anywhere even right on their doorstep. It’s part of what makes the US exceptional. Check out this excerpt from an article at Fox News:

“More than 3,500 American and Japanese troops kicked off a weeks-long joint military exercise Thursday against the backdrop of an increasingly belligerent North Korean regime. The exercise, known as Northern Viper 17, will take place on Hokkaido — Japan’s northern-most main island — and will last until Aug. 28….

“We are improving our readiness not only in the air, but as a logistical support team,” Col. R. Scott Jobe, the 35th Fighter Wing commander, said in a statement. “We are in a prime location for contingency purposes and this exercise will only build upon our readiness in the case a real-world scenario occurs.” (US, Japanese troops begin joint military exercise amid North Korea threat”, Fox News)

Monday’s missile test (which flew over Hokkaido Island) was conducted just hours after the war games ended. The message was clear: The North is not going to be publicly humiliated and slapped around without responding. Rather than show weakness, the North demonstrated that it was prepared to defend itself against foreign aggression. In other words, the test was NOT a  “bold and provocative act” (as the media stated) but a modest and well thought-out  response by a country that has experienced 64 years of relentless hectoring, sanctions, demonization and saber rattling by Washington. The North responded because the Washington’s incitements required a response. End of story.

And the same is true of the three short-range ballistic missiles  the North tested last week. (two of which apparently fizzled out shortly after launching.)  These tests were a response to the 3 week-long joint-military drills in South Korea which involved  75,000 combat troops  accompanied by hundreds of tanks, armored vehicles, landing craft, heavy artillery, a full naval flotilla and flyovers by squadrons of state of the art fighters and strategic bombers.  Was the North supposed to sit on its hands while this menacing display of brute military force took place right under its nose???

Of course not. Imagine if Russia engaged in a similar operation over the border in Mexico while the Russian fleet conducted “live fire” drills three miles outside of San Francisco Bay. What do you think Trump’s reaction would be?

He’d blow those boats out of the water faster than you could say “Jackie Robinson”, right?

So why the double standard when it comes to North Korea? Sauce for the goose is sauce for the gander.

North Korea should be applauded for showing that it won’t be intimidated by the schoolyard bully. Kim knows that any confrontation with the US will end badly for the North, even so, he hasn’t caved in or allowed himself to be pushed around by the blustering, browbeating thugs in the White House. Booyah, Kim.

By the way, Trump’s response to Monday’s missile test was barely covered in the mainstream media, and for good reason. Here’s what happened two days later:

On Wednesday,  a US-led flight-group of  F-35B fighters, F-15 fighters and B-1B bombers conducted military operations over a training range east of Seoul. The B-1B’s, which are low-altitude nuclear bombers, dropped their dummy-bombs on the site and then returned to their home base. The show of force was intended to send a message to Pyongyang that Washington is unhappy with the North’s ballistic missile testing project and is prepared to use nuclear weapons against the North if it fails to heed Washington’s diktats.

So Washington is prepared to nuke the North if they don’t straighten up and do as they are told?

It sure looks that way, but who really knows?  In any event, Kim has no choice but to stand firm. If he shows any sign of weakness, he knows he’s going to end up like Saddam and Gaddafi. And that, of course, is what’s driving the hyperbolic rhetoric; the North wants to avoid the Gaddafi scenario at all cost. (BTW, the reason Kim has threatened to fire missiles at the waters surrounding Guam is because Guam is the home of Anderson Airforce Base which is the point-of-origin for the B-1B nuclear-capable bombers that have been making threatening flyovers on the Korean Peninsula for some time now. The North feels like it has to respond to that existential threat.

Wouldn’t it help if the media mentioned that fact or does it better serve their agenda to make it look like Kim is barking mad by lashing out against the ‘totally innocent’ United States, a country that only seeks to preserve the peace wherever it goes?

Give me a break!

It is so hard to find anything in the media that doesn’t reflect Washington’s bias and hostility. Surprisingly, there was  pretty decent article at CBS News last week written by a former Western intelligence officer with decades of experience in Asia. It’s the only article I’ve found that accurately explains what’s  really going on beyond the propaganda. Check it out:

“Prior to President Trump’s inauguration, North Korea made it clear it was prepared to give the new U.S. administration time to review the policy and come up with something better than President Obama’s.  The only wrinkle was that if the U.S. went full-steam ahead with its annual joint exercises with South Korea (especially if that were accompanied by more talk of “decapitation” and more flights of strategic bombers over the Korean peninsula), the North would react strongly.

In short, the U.S. did, and the North reacted.

Behind-the-scenes contacts went up and down, but couldn’t get traction.  In April, North Korean leader Kim Jong Un paraded new missiles as a warning, to no effect.  The regime launched the new systems, one after another.  Still, Washington’s approach didn’t change.” (Analysis: Pyongyang’s view of the North Korea-U.S. crisis”, CBS News)

Okay, so now we know the truth: The North gave it their best shot and came up snakeeyes, mainly because Washington doesn’t want to negotiate, they’d rather twist arms (Russia and China), tighten the embargo and threaten war. That’s Trump’s solution. Here’s more from the same piece:

“On July 4, after North Korea’s first successful intercontinental ballistic missile (ICBM) launch, Kim sent a public signal that the North could put the nuclear and missile programs “on the table” if the U.S. changed its approach.

The U.S. did not, so the North launched another ICBM, very deliberately deeming it a warning to the U.S. that they were to be taken seriously. Still, more B-1 bombers flew over the Peninsula, and the U.N. Security Council passed new sanctions.” (CBS News)

So, the North was ready to do some serious horse-trading, but the US balked. Kim probably heard what a wheeler dealer Trump was and figured they could work something out. But it hasn’t happen.  Trump has turned out to be a bigger bust than Obama, which is pretty bad.  He not only refuses to negotiate but he also delivers bellicose threats almost every day. This isn’t what the North was expecting. They were expecting a   “non interventionist” leader who might be receptive to a trade-off.

The current situation has left Kim with no good options. He can either cave in and terminate his missile program altogether or increase the frequency of the tests and hope that they pave the way for negotiations.   Kim chose the latter.

Did he make a bad choice?

Maybe.

Is it a rational choice?

Yes.

The North is betting that its nuclear weapons programs will be valuable bargaining chits in future negotiations with the United States. The North has no plan to nuke the west coast of the United States.  That’s ridiculous! That doesn’t accomplish anything. What they want is to preserve their regime,  procure security guarantees from Washington,  lift the embargo,  normalize relations with the South,  extricate the US from the political affairs of the peninsula, and (hopefully) end the irritating and endlessly provocative 64 year US occupation. Yankee go home. Please.

Bottom line: The North is ready to deal. They want negotiations. They want to end the war. They want to put this whole nightmare behind them and get on with their lives. But Washington won’t let them because Washington likes the status quo. Washington wants to be a permanent feature in South Korea so it can encircle Russia and China with lethal missile systems and expand its geopolitical grip bringing the world closer to nuclear Armageddon.

That’s what Washington wants, and that’s why the crisis on the peninsula will continue to boil.

https://www.counterpunch.org/2017/09/04/what-the-media-isnt-telling-you-about-north-koreas-missile-tests/

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Smartphones share data of 40 per cent Indians with the world, CIA

Mehrishi said fingerprints and biometrics were being captured and this had happened with 40 per cent of the population who owned smartphones. He replied in the affirmative when he was asked if it would be 100 per cent if every Indian started using a smartphone, sources said.

Written by Anand Mishra | New Delhi |

Smartphone, Smartphone data, Rajiv Mehrishi, Mehrishi smartphone data, Smartphone data CIA, India news, Indian ExpressRajiv Mehrishi (Source: Express Photo by Prem Nath Pandey/File)

Questioned on possible threats to privacy with the linking of Aadhaar to various services, Rajiv Mehrishi, who retired as Union Home Secretary Thursday, told a parliamentary panel last month that 40 per cent of people who use smartphones and top applications, knowingly or unknowingly, share data with the entire world including the Central Intelligence Agency (CIA). It is learnt that Mehrishi made this remark on July 21 when he appeared before the Parliamentary Standing Committee on Home Affairs, chaired by senior Congress leader P Chidambaram.

Mehrishi, sources said, called the sharing of mobile data by private companies a nuisance. He was said to have referred to an American design of a timeline 2030. Mehrishi said fingerprints and biometrics were being captured and this had happened with 40 per cent of the population who owned smartphones. He replied in the affirmative when he was asked if it would be 100 per cent if every Indian started using a smartphone, sources said.

Mehrishi also flagged the dangers of data theft through use of applications, saying movement of people could be tracked through the day. Sources said Chidambaram, Union Home Minister in the previous UPA government, said if mobile phones of two persons were located in close proximity, it could be concluded that both were in the same room. He said this was how drone attacks were being carried out, sources said.http://indianexpress.com/article/india/smartphones-share-data-of-40-per-cent-indians-with-world-cia-govt-4823222/

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On A Mumbai Street, Aspiring Soldier Endures India’s Cancer-Care Crisis

Swagata Yadavar

cancer-1_620

A cancer patient resting on the divider under the monorail station near Tata Memorial Hospital, Parel, Mumbai. Many cancer patients–unable to afford a hotel or a dharmshala (rest house)–stay on the pavements around the hospital till their treatment is complete.

Mumbai: For the past four months–as his life turned from college student in Bihar to cancer patient on a Mumbai footpath–Arvind Kumar, 24, has been bothered by one question: How did I get oral cancer?

 

Kumar never smoked, chewed gutkha, paan (betel leaf) or tambaku (tobacco), the source of cancers in four of ten Indians so afflicted. His right eye eaten away by cells growing out of control, Kumar found it difficult to speak. So his brother-in-law explained how the Bachelor of Arts student from Bettiah district in western Bihar–and, as his family’s most educated member, their great hope–came to be here, after visiting seven doctors in five cities over five months, more than 1,866 km from home.

 

Sitting on a thin, plastic mat, Kumar–who is checked bi-weekly and gets chemotherapy and radiation once in three weeks–is one of about 50 patients who, on any given day, are spread across the footpath of Jerbai Wadia road at the front and rear of Tata Memorial Hospital’s Homi Bhabha Wing in central Mumbai. Either sitting or lying down on thin mats, they are usually accompanied by family members. Their medical files and medicines are placed in plastic bags hanging on a wall. A bag full of clothes is usually next to them. Some have a thin tarpaulin for a roof and a stove.

 

Run by the Department of Atomic Energy, the 76-year-old Tata Memorial Hospital–India’s leading tertiary referral centre–is ground zero of India’s unfolding cancer-care crisis. Although India’s incidence of cancer is still low compared to the West, it is spreading, and the lack of quality cancer care sets people like Kumar on trans-subcontinental journeys that end on the pavement of Jerbai Wadia road.

 

That is why this IndiaSpend’s three-part special report on cancer treatment is focussed on the Tata Memorial Hospital. In part one, we describe Kumar’s journey to Mumbai and the trauma his family endures. In part two, we calculate the economic and social cost of cancer through a survey of cancer patients living on Jerbai Wadia street’s pavements. In the third part, we investigate the government’s programmes for cancer care for its poorest patients.

 

Cancer is now known to strike at any age, as cells grow out of control due to multiple reasons: A flaw in your genes, toxins in the air and in your food, or consumption of tobacco or excess alcohol. Cancer’s changing characteristics are made worse by India’s inability to even gauge the disease’s spreading tentacles.

 

There were 1.45 million new cases of cancer and 736,000 deaths in India in 2016, expected to increase to 1.73 million in 2030, with 880,000 deaths by 2020.

 

India’s (man-made) cancer-care crisis

 

A million Indians are diagnosed with cancer every year, and 680,000 die from a disease once regarded as an affliction of the western world. India’s cancer burden is now expected to rise 70% over the next 18 years, from nearly 1 million new cases in 2012 to 1.7 million by 2035 according to GLOBOCAN, an international initiative on cancer data.

 

These may be underestimations because there were 1.45 million new cases of cancer and 736,000 deaths in India in 2016, expected to increase to 1.73 million in 2030, with 880,000 deaths by 2020, according to data from the National Cancer Registry Programme of the Indian Council of Medical Research.

 

The most common cancers in Indian men are oral and of the esophagus, stomach and lung; in women oral and of the cervix, breast and esophagus.

 

Although the incidence of cancer in India is half the world average–94 per 100,000 compared to 182 per 100,000–and a third of the incidence in developed countries (268 per 100,000), cancer care is scarce.

 

India has no more than 250 dedicated cancer-care centres (0.2 per million population in India vs 4.4 per million population in the US), 40% of which are present in eight metropolitan cities and fewer than 15% are government-operated, noted a 2015 studyCall for Action: Expanding Cancer Care in India, by Ernst and Young, a consultancy.

 

That is why 80% of India’s cancer cases come to medical attention at an advanced stage, one reason why 68% of patients with cancer die of the disease in India, compared to 33% in the US. India also has 0.98 oncologists per million population, compared to 15.39 in China, 25.63 in Philippines and 1.14 in Iran.

 

So, many cancer patients must travel great distances to only 27 government cancer referral centres and 250 cancer centres nationwide. That explains the patients on the footpaths outside Tata Memorial Hospital and India’s high mortality and morbidity from and expenditure on cancer.

 

“The reason patients come to Tata Memorial Hospital are two– first is (because of) the 76-year-old brand value and trust among the public, and second, thanks due to generous funding from government of India, we have a decent price structure, where for the same service, patients in private wards pay 10 times more,” said Anil D’Cruz, director of the Tata Memorial Hospital.

 

Government spending on cancer in India 1/10th average of high income countries

 

Public expenditure on cancer in India remains below US $10 per person, compared with more than US $100 per person in high income countries.

 

Furthermore, the care provided at many cancer centres in India is often dictated by facilities available. For example, many centres nationwide do not have access to radiotherapy. On average, there are 2–5 million people per radiotherapy machine, ten times more than the 250,000 people per machine in high-income countries.

 

Source: Cancer Atlas, 2012

 

Cancer in India differs from western countries because many cancer cases in India areassociated with tobacco use (40%), infections (20%), and other avoidable causes. “Social factors, especially inequalities, are major determinants of India’s cancer burden, with poorer people more likely to die from cancer before the age of 70 years than those who are more affluent,” said a 2014 paper in Lancet Oncology, a global medical journal.

 

Kumar’s story reflects the characteristics of India’s cancer-care crisis, as identified by researchers and medical professionals.

 

A toothache leads to six doctors, five cities and a 5,500-km journey

 

When we first met him in May 2017, Kumar was dressed in a loose, white shirt and loose black pants, much like the thousands who migrate to India’s richest city from small towns. The handkerchief tied on his head, covering his right eye, gave away his cancer. He opened it to show us how a tumour had taken over his eye, the area from head to eye socket swollen.

 

It began five months ago in March 2017, with a pain in Kumar’s teeth. As the pain grew, a swelling began in his mouth and within 45 days had spread to his right eye.

 

These niggles came at a time when Kumar had been watching his diet, jogging every morning and working on his physique to realise his ambition–to enlist in the Indian army.

 

His family took him to Patna Government Hospital, 200 km to the south, where the doctors told him that a surgery was needed. It would cost Rs 250,000. The family then travelled 260 km north to Gorakhpur where a biopsy revealed cancer. They consulted six doctors, travelling over three months and about 1,000 km, from Gorakhpur in Uttar Pradesh to Motihari in Bihar to Varanasi in Uttar Pradesh, and spent Rs 100,000.

 

Kumar did not get better.

 

Then, someone from Kumar’s village told him to go to Mumbai for medical care. Three of the family—Arvind Kumar, his brother-in-law Chand Singh Mahto, 30, and his mother, Nirmala Devi, 55, made the journey to Mumbai in April 2017.

 

3

A cancer patient resting on the divider under the monorail station near Tata Memorial Hospital, Parel, Mumbai. Many cancer patients–unable to afford a hotel or a dharmshala (rest house)–stay on the pavements around the hospital till their treatment is complete.

 

In seeking cancer care, savings exhausted, Rs 50,000 loan from relatives

 

Kumar’s dream of becoming a soldier has been swept aside by a string of concerns: Will he live? Will he look normal again? When will the doctors allow him to go home? Will he be able to help his family pay back the loans they have taken?

 

Kumar’s family borrowed Rs 50,000 from their relatives, after exhausting their own savings.

 

Once in Mumbai, when Kumar and his family found hotels and guest houses charging anything from Rs 600 to Rs 2,000 per day, they saw other patients living on the footpath and joined them.

 

When IndiaSpend met them, the family had spent Rs 60,000 on treatment over two months in Mumbai. While consultation is highly subsidised, patients above the poverty line must pay for tests and medicine at Tata Memorial Hospital (free for those certified as poor). The family’s daily expenses range from Rs 200 to Rs 300 in Mumbai. Their finances have been hit hard by Kumar’s cancer. Aside from losing their savings and the pending loans, they have lost the income they might have earned during this time.

 

Mahto, a labourer, gave up work to be with Kumar. His wife, Kumar’s sister, is at home, taking care of their two daughters, brother and father. Kumar’s father, an agricultural worker, is the sole earning member. Kumar’s younger brother is a Class X student.

 

1

Arvind Kumar–now too weak to stand or walk–is undergoing free chemotherapy and has moved to the nearby Nana Palkar dharmshala, where he will get free food and accommodation–for a month.

 

Lining up at 4 am to see the doctor at 2 pm

 

Since he came to Mumbai, Kumar received swift treatment. Tuesdays and Wednesdays are for out-patients at the head and neck cancer department, and even though consultation begins at 8 am, the line to enter the hospital begins to form four hours earlier, at 4 am. The gates open at 7 am.

 

“If you line up early in the morning, the doctor sees you at 2 pm,” said Mahto, Kumar’s brother in law. Inside the hospital, the patients get free snacks and meals during out-patient department (OPD) hours, attendants must pay between Rs 50 and Rs 100 for each meal.

 

Kumar suffers from the side-effects of the chemotherapy and radiation that he receives every three weeks.

 

“I feel very nauseous and I throw up everything I eat,” he said. The skin of his forearms had gone dark because the radiotherapy which is supposed to kill cancer cells by high energy radiation also affects normal cells.

 

Life on the street: Nights are the worst

 

Life on the footpath isn’t easy. Patients spend Rs 5 to use the toilet and Rs 20 to bathe in a public restroom. Drinking water must be filled from a hospital canteen.

 

“The worst of the ordeal is every night,” said Nirmala Devi, Arvind’s mother, referring to the policemen who rouse and drive away patients and their families, who gather their reports, medicines, clothes and other belongings and find shelter alongside the awnings of closed shops.

 

Why don’t they move to a dharmshala (non-religious rest house)? “I have been to Nana Palkar (a dharmshala run by a private trust) four times,” said Mahto. “They say bring a letter from social worker; the social worker says we do not fit the criteria (They are not poor enough). We don’t want to live on the footpath, but we can’t find accommodation anywhere.”

 

Although Kumar’s father is a labourer, he is officially above the poverty line–he has an above poverty line (APL) ration card and, so, cannot get what is called an NC, or no-charges approval, which allows minimal charges for some hospital services and no charge for investigations or consultation.

 

When IndiaSpend met them again in early June 2017, the family was worried about the monsoons. “We found shelter in the monorail station nearby last night when it rained,” Mahto said as the rain bucketed down.

 

Tata 07

Every day Taj Hospitality, a part of the Taj Hotels group, provides free lunch to about 300 patients in Tata Memorial Hospital, Parel.

 

Why patients return to the footpath

 

While the Tata Memorial Hospital’s social service provides needy children with free cancer treatment and accommodation, their families are also, sometimes, given skill training and a living space at St Jude’s, an NGO. But adults with cancer have fewer options. The hospital makes periodic attempts to move them off the street.

 

“We had moved all the patients (living on the footpath) and given them free accommodation in 165 rooms  at Bombay Port Trust quarters, but they all came back,” said S H Jafri, Public Relations Officer (PRO), Tata Memorial Hospital. “There are enough NGOs to accommodate all cancer patients at affordable rates, but those who stay on the footpath do not want to move due to free food distributed here.”

 

Every day Taj Hospitality, a part of the Taj Hotels group, provides free lunch to about 300 patients in Tata Memorial Hospital; they also get breakfast at 6 am. Other non-profits and trusts also provide food and other essentials from time to time.

 

“This may be true for the patients who stay on the other side of the hospital,” said Mahto, reacting to the PRO’s comment. “They have been treated years ago but still stay there.”

 

Interviews with other cancer patients on the footpath revealed that while some patients do not relocate to other affordable options out of choice–living outside the hospital is convenient and gets them to the 4 am line quicker–many said they did not know about other accommodation facilities. Some said they tried and returned to the footpath.

 

As you read this story, Arvind Kumar–now too weak to stand or walk–is undergoing free chemotherapy and, after staying under a monorail station for two months, has moved to the nearby Nana Palkar dharmshala, where he will get free food and accommodation–for a month.

http://www.indiaspend.com/cover-story/on-a-mumbai-street-aspiring-soldier-endures-indias-cancer-care-crisis-21783

 

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India – Legalise sex by consent #Sec377

Section 377 has become untenable in the light of Supreme Court’s   historic privacy judgment

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By Ajit Prakash Shah and Vrinda Bhandari

In its historic judgment in ‘Justice Puttaswamy vs Union of India’, the Supreme Court held that privacy is a fundamental right. In doing so, it also removed the basis for its decision in ‘Koushal’, which had upheld the constitutionality of Section 377 of the Indian Penal Code (IPC).

Justice Chandrachud, speaking on behalf of four judges, termed the court’s views on the “so-called rights” of the LGBTQI community in Koushal “unsustainable”, and clarified that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”. Justice Kaul, in his separate opinion, concurred with Justice Chandrachud’s views, thus forming the majority opinion of the court on this count.

However, since the challenge to Section 377 is currently pending consideration before a larger bench, the court stopped short of declaring it unconstitutional. The court’s observations in Puttaswamy give us an opportunity to revisit the issues surrounding the continued criminalisation of consensual sexual acts of adults in private, through the retention of Section 377 on the statute book.

Illustration: Ajit Ninan

The existence of Section 377 raises fundamental questions. Why should someone’s dignity and privacy be undermined by their sexual preference? Why should someone’s fundamental life choices be conditioned by other people’s prejudice, ignorance and stigmatisation? Why should public health be compromised by an archaic and pedantic notion of public morality? And finally, why should a sizeable population of Indians (or even a “miniscule minority”) be deemed criminals in the eyes of the law, simply for being themselves?

At the outset though, it is important to understand why privacy is particularly important to the LGBTQI community. First, privacy has come to be viewed as central to one’s identity, dignity, sense of self and autonomy. In this view privacy is a pre-requisite for self-development or, as Cohen puts it, a shorthand for “breathing space”. Section 377 denies a person the right to full personhood, by going against the constitutional values of dignity, fraternity and inclusiveness.

Second, an integral part of such individual/ decisional autonomy is the ability to make one’s own choices, develop and determine one’s personality and identity, and have intimacy and meaningful inter-personal relations. At its root, thus, it is the freedom to express one’s identity without fear.

Third, the existence of the law, regardless of its exercise, causes a chilling effect on the true expression of one’s identity. It encourages anti-gay violence and facilitates harassment, blackmail and exploitation by the police and larger society. As noted by the Supreme Court sexual orientation is an essential component of identity, whose fulfilment is hindered when there is a loss of privacy and dignity.

Finally, the loss of privacy can lead to discrimination and denial of opportunities, leaving many amongst the LGBTQI community on the margins of society. The Supreme Court was cognisant of this in its judgment in NALSA, concerning transgender persons, where it observed “non-recognition of Hijras/ transgender persons denies them equal protection of law … thereby leaving them extremely vulnerable to harassment, violence and sexual assault.”

A modern democracy rests on the twin principles of majority rule and the need to protect fundamental rights of all citizens. Fundamental rights are inalienable and transcend challenge or limitation. These rights identify subjects, withdraw them from political controversy, place them beyond the reach of majorities, and establish them as legal principles to be applied by courts equally for everyone.

This was recognised by the court in Puttaswamy (the plurality opinion and separate concurrences), holding that privacy is an inalienable right that inheres in every person, which is reflected in the Fundamental Rights Chapter of the Constitution, rather than guaranteed by it. In this context, it is important to appreciate that just as homosexuality is not a ‘western import’, IPC was neither Indian, nor a gift from God. IPC was drafted by the British, based on prevailing Victorian notions of morality which were imported to India, and continue to remain here long after they have been discarded by the British.

The second aspect of a constitutional democracy relates to the counter-majoritarian role played by the judiciary, which has to ensure that a majoritarian government does not override minority rights. While law may be the product of representative majoritarian moral beliefs, constitutional guarantees (and constitutional morality) will lose significance if they are given majoritarian interpretations.

There are many groups, or “discrete and insular minorities” who remain excluded from the everyday exchanges and compromises of democratic politics, which tend to prioritise political expediency over protection of rights. In 2016, the Lok Sabha voted against Shashi Tharoor’s bill to decriminalise homosexuality. In this background, Justice Kennedy’s majority opinion in the US Supreme Court gay marriage ruling in Obergefell vs Hodges bears reiteration: “The nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”

The Supreme Court in Puttaswamy has laid the ground for overruling Koushal. It is now up to the same court to recognise the validity of same-sex love. But that will not be enough. The Parliament must also act and pass a comprehensive anti-discrimination law, to protect such minority and disadvantaged groups. Only then will we move a step closer to achieving the constitutional goal of equality.

Ajit Prakash Shah is former Chief Justice of Delhi high court, Vrinda Bhandari is an advocate

http://blogs.timesofindia.indiatimes.com/toi-edit-page/legalise-sex-by-consent-section-377-has-become-untenable-in-the-light-of-supreme-courts-historic-privacy-judgment/

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