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Introduction

1. For most of human history, homosexuality has been considered a sin across religions and was punished severely.
2. While earlier perceived as a psychological problem, a dominant view emerged  in the 20th century, that homosexuality was inborn and therefore not immoral, and it was not a disease.
3. However, even in the 21st century, there is still no unanimity on the issues and resistance persists, despite it being decriminalised in many countries.
4. In India, its Section 377 of the Indian Penal Code, a biblical provision of law in 1861, criminalized sexual activities “against the order of nature”, including homosexual activities.

Section 377 of the IPC

1. It reads – Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
2. The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code.

Delhi HC exclusion: Naz Foundation Vs. Govt of NCT of Delhi

1. In a landmark judgement in 2009, the Delhi high court excluded acts of carnal intercourse by consenting adults in private from the purview of Sec 377.
2. The court found Section 377 to be inconsistent with the fundamental rights under Article 13(1) of the Constitution.
3. Additionally, it was found to be in violation of the right to privacy and dignity (Article 21), freedom of expression and right to equality (Article 19 (1) and Articles 14 and 15)

SC upholds the validity of 377 in 2013: Kaushal Kumar vs. Naz Foundation

1. It set aside the 2009 judgement of the Delhi High Court stating that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse “against the order of nature”.
2. The bench took a literal and technical view rather than the wider sweep that the Delhi high court had applied.

NALSA judgement, 2014

The SC held that-

1. ‘Transgenders’, even though insignificant in numbers, are entitled to human rights.
2. Sec 377 had been an instrument of harassment and abuse.
3. Advocated the adoption of the Yogyakarta Principles (norms on gender identity and sexual orientation adopted by human rights experts in 2006)
4. It was unreasonable to advance the view that constitutional protection is available to a group based on its size.

SC favours Individual Privacy: Puttaswamy vs. Union of India Case

1. In review petition, the SC ruled that “sexual orientation” is an essential attribute of “identity” and “privacy”.
2. It termed discrimination on the basis of sexual orientation as “deeply offensive to the dignity and self-worth of the individual”.
3. It recognised that the rights of India’s sexual minorities are founded on “sound constitutional doctrine” effectively making Section 377 unsustainable.
4. In principle, it maintains that sexual orientation must be protected and lies at the heart of the fundamental rights guaranteed by the Constitution under Articles 14, 15 and 21.

Should Sec 377 be repealed?

Yes, because

1. It is discriminatory. It violates rights granted under Art. 14, 15 and 21 of the constitution.
2. A person’s freedom and natural inclination cannot be atrophied unless the restrictions are determined as reasonable.
3. Public health evidence indicates a clear relationship between lack of social acceptance and legal rights with substance abuse, violence, isolation, and mental illness. This violates a person’s right to a healthy and dignified life.
4. It causes great humiliation and harassment. LGBTs face a constant threat of blackmail (by acquaintances) and arrest. Life becomes humiliating, as the LGBT are socially ridiculed and mocked at.
5. Global trends show that many countries, including France, Spain, Canada, the US, Britain, Nepal etc have decriminalised homosexuality. India is among the conservation group including Afghanistan, Pakistan, Saudi Arabia etc.

No, because

1. It is against the law of nature, which supports sexual intimacy only between a male and a female.
2. Many child rights activists claim that Sec 377 is a deterrent against sexual abuse of children.
3. It violates the moral code of most religions.
4. Public display of (homosexual) affection can cause great unease in conservative societies like India.

Way Forward

1. The argument against Sec 377 must, ideally, be based on the right to equality (and non-discrimination) and not just on the right to privacy.
2. A rights-based framework is intricately tied up with India’s quest for social and economic development. LGBTs must have equal rights in a democracy. They deserve a dignified life.
3. Public display of affection should be tempered by reasonable restrictions.
4. Judiciary needs to expand the ambit of this discussion to include other issues such as the right to form partnerships, inheritance, employment equality, protection from gender-identity-based discrimination etc.
5. The norms on gender identity and sexual orientation adopted by human rights experts in 2006 in Indonesia, known as Yogyakarta Principles should be adopted.

Why in news?

The office of Governor came under scanner recently in Karnataka when instead of inviting the post-poll alliance partners which had the number in the floor of the house, the Governor invited the single largest party which was way short of the majority. The role of Governor also came into the scanner in Goa, Uttarakhand and Arunachal Pradesh.

Appointment of Governor

• The governor is head of the state.
• The governor is neither directly elected by the people nor elected a specially constituted electoral college.
• The governor is directly appointed by the President. Thus, he is considered to be a nominee of the Central government.
• The post of the governor is a constitutional post and not an employment under the Central government.
• The term of the Governor is prescribed as five years. However, the governor is allowed to hold office at the will of the President.
• The only qualifications for appointment as Governor are that he should be a citizen of India and must have completed the age of thirty-five years.

Important Constitutional Provisions

Article 153: It requires a governor to be appointed for every state in India.

Article 154: Vests the executive power of the State in the Governor

Article 155: Appointment of the Governor

Article 156: Term of Office of Governor

Article 157: Qualifications for appointment as Governor

Role of Governor in India

The Governor is the chief executive of a State in India. The governor heads the government’s executive branch in each state or territory and, depending on the individual jurisdiction, may have considerable control over government budgeting, the power of appointment of many officials (including many judges), and a considerable role in legislation.

The powers and functions of the Governor of Indian State resemble that of the President of the Union Government. Like the President, the Governor is also a constitutional ruler, a nominal figure. He is not a real functionary. Generally speaking, the Governor acts on the advice of the Council of Ministers.

Under the Constitution of India, the Governor of a State possesses wide powers and functions – executive, legislative, financial and judicial.

Let us now discuss the powers and functions of the Governor of an Indian State.

Executive:

• The Executive power of the State is vested in the Governor. He exercises this power either directly or through the officers who are subordinate to him. All executive actions of the State are taken in the name of the Governor.
• An important function of the Governor is to appoint the Chief Minister of the State. Other ministers are also appointed by the Governor on the advice of the Chief Minister. The ministers including the Chief Minister hold office during the pleasure of the Governor.
• He has also the power to appoint the higher officers of the State including the Advocate-General and the members of the State Public Service Commission. He has also a share in the appointment of the Judges of High Court.
• He is responsible for the administration of the welfare schemes of the scheduled castes and other backward class. He may appoint a minister for this purpose. The Governor has the constitutional right to know the decisions of the Council of Ministers relating to the administrative affairs of the State and the proposals for legislation. But like the President of the Union, the Governor has no diplomatic or military power.

Legislative:

• Governor is an integral and indispensable part of the State Legislature. In some States, the State Legislature consists of the Governor and one House, the Legislative Assembly, while in other it consists of the Governor and the two Chambers known as the Legislative Assembly and the Legislative Council. The Governor possesses the powers to summon and prorogue the Houses of the State Legislature. He can also dissolve the Lower House—the Legislative Assembly—before the expiry of its term.
• The Governor has been authorized by the Constitution to deliver an address to the State Legislature at the commencement of the first session of each year. He has also the power to send message to the State Legislature. The Governor has to nominate one member to Legislature. The Governor has to nominate one member to Legislature Assembly from the Anglo-Indian Community and also members to the Legislative Council (where it exists) from among the persons who have acquired special knowledge in art, literature, science, social service and co-operative movement.
• In a State, a public bill cannot become an Act without the approval of the Governor. A bill passed by the State Legislature is presented to the Governor for his assent. The Governor may give his assent to the bill. Or he may withhold his assent from the bill. If the bill is again passed by the House or Houses of the State Legislature, the Governor is to give assent to the bill. He may also reserve certain bill for the assent of the President. This is an important function of the Governor of an Indian State.
• When the State Legislature is not in session, the Governor may issue an Ordinance. It has same force as the law of the State Legislature. But it must be placed before the Legislature when it assembles again. If it is approved by the State Legislature, it will cease to operate after six weeks of the date of meeting of the State Legislature.

Financial:

The Governor has also financial powers and functions. No money bill can be originated in the State Legislature without the recommendation of the Governor. In every year, the budget is laid before the State Legislature by the Governor. No proposals for taxation or expenditure can be made without the approval of the Governor.

Judicial:

The Governor also exercises judicial powers. He has the power to grant pardons, reprieves or remissions of punishment to any person who has been convicted by courts of law. He has also a great share in the appointment of the judges of the subordinate courts.

Why should the post of Governor be abolished?

1. It has become retirement home for politicians: The post has been reduced to becoming a retirement package for politicians for being politically faithful to the government of the day. Consequently, a candidate wedded to a political ideology could find it difficult to adjust to the requirements of a constitutionally mandated neutral seat. This could result in bias, as appears to have happened in Karnataka
2. Non-neutrality of the office of the Governor: The governors are the agents of the Central Government and since most of them are retired politicians belonging to a particular political party ,they remain loyal to the people, who appoint them. As a result of it, they try to topple the State Government if it happens to be a Government by the opposition party. This is undemocratic and immoral
3. The circumstances has changed in last 70 years: After almost 70 years since India’s Independence, the need for the position of the governor to act as a unifying body with that the federal system has lessened. When the Constituent Assembly of India was debating and drafting the Constitution, between 1946 and 1949, the country had just been formed. There were fissiparous predispositions amongst many and the governors acted as the eyes and ears of the Central Government in the states through periodic reports. At present, mostly the whole of India is at peace with the identity of a Union and the role of the governor has been substantially reduced, whereby it is used to destabilise the Constitution rather than upholding it
4. Undemocratic to have an selected head of the state: it is undemocratic to have a nominated person as the head of the State. All the powers should be exercised by the elected head. Chief Minister should be responsible for doing everything and should not be checked by the Governors.

Why we need the post of Governor?

1. Manage things in transition phase: To manage things in transition phase like election period and presidential rule in states.
2. At the time of Government formation: Ever imagined who will decide that which party should be invited to form the Government if there is a hung assembly? Those saying that the post of Governor should be abolished will find it difficult to answer this question. A Governor has to apply his mind to see that a stable Government is formed in a state
3. To ensure the legal validity of the laws: The Governor looks into the legal validity of the laws passed by state legislature. He can raise an objection and ask the Government to reconsider certain provisions of law which he finds needing change
4. Act as a bridge: Work not as an agent but as a bridge between union and states on various issues.
5. A special responsibility in some states: For many states like in North states we have autonomous regions and also the less developed area. Under direct union supervision, governor has a responsibility to ensure the development of these regions.

Way Forward

Misuse of a position of power should not serve as a justification for removing the office altogether unless such a position has totally lost its relevance

• In India, the balance in power is tilted towards the Union. The importance of the Governor’s position arises not from the exceptional circumstances that necessitate the use of his discretion, but as a crucial link within this federal structure in maintaining effective communication between the Centre and a State
• As a figurehead who ensures the continuance of governance in the State, even in times of constitutional crises, his role is often that of a neutral arbiter in disputes settled informally within the various strata of government, and as the conscience keeper of the community.

Here are some suggestions to make the post of governor effective again.

• The post of the Governor be reserved for non-political appointees, and the Supreme Court should lay down the law on how the Governor ought to act when an election yields a fractured verdict
• The recommendations of the Sarkaria Commission and the Punchhi Commission report need to be examined closely to make proper amendments to the functions of the post of governor.
• Governorships should go to eminent persons with impeccable credentials rather than these posts becoming dumping grounds for retired politicians.
• A national panel should be prepared after involving the opposition, ruling party, civil society and the judiciary in the selection process; the governor should be appointed from this panel after consultation with the CM of the state in which he or she is to function.
• Ideally speaking, a governor should not be posted in his native state and should preferably have been at a distance from active politics for a significant period.
• The arbitrary dismissals of governors should be stopped at all costs by legislating for a fixed tenure. He should not enjoy office at the pleasure of the President and his removal from office must entail impeachment proceedings in the state assembly. The process of dismissal of the governor should be made as difficult as the removal of high court judges.
• The governor should not be allowed to acquire political positions for a certain period after relinquishing his post. This will enhance the independence of his office and give him more teeth in functioning.
• The discretionary powers need to be whittled; there has to be clear-cut guidelines on the appointment of CM i.e. inviting the leader of the largest pre-poll alliance or the party to form the government. No efforts should be made to subvert the mandate and install governments through the back door.
• As far as power to reserve bills is concerned, this should continue but it should be resorted to in the rarest of rare cases and not on a liberal interpretation or malicious intent. If needed, the Governor should be legally made to enlist the opinion of the High Court before reserving bills.
• The Punchhi Commission has recommended the localizing of emergency provisions under Articles 355 and 356 of the Constitution. According to it, President’s rule should be imposed in those parts of the state where there is constitutional breakdown of machinery — rather than the whole state. This will go a long way in preventing the dismissal of state governments on petty and manufactured grounds of lawlessness

Why in News

According to ASSOCHAM-NEC joint study on “World Environment Day”, India is among the top five e-waste generating countries in the world besides China, the US, Japan and Germany

E-waste –Statistics

1. The global volume of e-waste is expected to reach 52.2 million tonnes (MT) or 6.8 kg per inhabitant by 2021 from 44.7 MT in 2016 at a compound annual growth rate of 20%, according to the study
2. Among states, Maharashtra contributes the largest e-waste of 20% but recycles only about 47,810 tonnes per annum (TPA)
3. Of the total e-waste produced in 2016, only 20% (8.9 MT) is documented to be collected properly and recycled, while there is no record of the remaining, e-waste, the study said

What is E-Waste?

Electronic waste, abbreviated as ‘e-waste’ is a term used to describe old, end-of-life electronic appliances such as computers, laptops, TV’s, radios, refrigerators etc., which have been discarded by users. E-waste comprises of numerous valuable but harmful substances that can cause an adverse effect on human health

What are the harmful effects?

1. They contain several hazardous substances, such as mercury, arsenic and other heavy metals.
2. They emit harmful radiation, degrade the soil, and releases toxins to pollute air and groundwater.
3. Prolonged exposure to these pollutants can damage the nervous system, kidneys, and brain, and can cause respiratory disorders, lung cancer, skin ailments and other health problems.
4. 2/3rd of the workers in the unorganised e-waste recycling sector suffer from breathing in difficulties, coughing, irritation etc.

E-waste disposal policy in India

1. The country’s e-waste disposal policy is actually robust.
2. The e-waste management rules, laid down by the environment ministry, even revolve around the judicious concept of “extended producer responsibility” (EPR).
3. Manufacturers are mandated to take back 30% of the discarded electronic equipment for appropriate disposal in the first two years of the enforcement of these rules.
4. This level is to be raised to 70% in the next five years.

Issues related to E-waste in India

1. India stands fifth in e-waste generation in the world producing around 1.7 lakh metric tons per annum.
2. About 4.5 lakh child labourers observed to be engaged in various E-waste activities without adequate protection and safeguards.
3. A huge gap between present recycling and collection facilities and quantum of E-waste that is being generated.
4. E-waste bearing toxic materials contaminates soil and groundwater, as well as its exposure, causes health issues to the recycler.
5. No clear guidelines for the unorganized sector to handle E-waste. Also, no incentives provided to lure people engaged to adopt formal path for handling E-waste.
6. 80 % of E-waste in developed countries meant for recycling is sent to developing countries such as India, China, Ghana and Nigeria.
7. Lack of coordination between various authorities responsible for E-waste management and disposal including the non-involvement of municipalities.
8. There is no large-scale organized E-waste recycling facility in India and the entire recycling exists in the unorganized sector.
9. Management practices are often poorly designed and have a lot of health and environmental repercussions
10. The lack of public awareness regarding the disposal of electronic goods and inadequacy of policies to handle the issues related to E-waste enhance the problem in India.
11. People discard E-waste with regular municipal solid waste which is an extremely dicey practice.
12. End of life computers often contains sensitive personal information and bank account details which, if not deleted leave opportunity for fraud.
13. The decline in cost of consumer electronics, rise in middle-class incomes, and the increase in frequency at which devices are discarded.

What needs to be done?

1. There exists an urgent need for a detailed assessment of the current and future scenario including quantification, characteristics, existing disposal practices, environmental impacts etc.
2. Institutional infrastructures, including e-waste collection, transportation, treatment, storage, recovery and disposal, need to be established, at national and/or regional levels for the environmentally sound management of e-waste.
3. Establishment of e-waste collection, exchange and recycling centres should be encouraged in partnership with private entrepreneurs and manufacturers.
4. Model facilities employing environmentally sound technologies and methods for recycling and recovery are to be established.
5. Policy level interventions should include the development of e-waste regulation, control of import and export of e-wastes and facilitation in development of infrastructure.
6. An effective take-back program providing incentives for producers to design products that are less wasteful, contain fewer toxic components and are easier to disassemble, reuse, and recycle may help in reducing the wastes.
7. End-of-life management should be made a priority in the design of new electronic products.
8. A circular economy model needs to be  built on the idea of,

•    Designing out waste and pollution
•    Keeping products and materials in use
•    Regenerating natural systems

Need changes in E-waste policy and regulation

1. The Policy shall address all issues ranging from production and trade to final disposal, including technology transfers for the recycling of electronic waste.
2. Clear regulatory instruments, adequate to control both legal and illegal exports and imports of e-wastes and ensuring their environmentally sound management should be in place.
3. There is also a need to address the loopholes in the prevailing legal framework to ensure that e-waste from developed countries are not reaching the country for disposal.
4. The Port and the Customs authorities need to monitor these aspects.
5. The regulations should prohibit the disposal of e-waste in municipal landfills and encourage owners and generators of e-wastes to properly recycle the wastes.
6. Manufacturers of products must be made financially, physically and legally responsible for their products

Some Initiatives taken

1. E-waste Awareness programme under Digital India initiatives

• Ministry of Electronics and Information Technology, MeitY, has initiated this to along with industry associations from 2015, to create awareness among the public about the hazards of e-waste recycling by the unorganised sector, and to educate them about alternate methods of disposing of their e-waste

1. E-Waste Mass Awareness Campaign through Cinema has also been initiated for awareness amongst the youth

Lessons to learn from other countries/institutions  

1. European Environment Agency aims to establish a recycling rate of at least 50% across the 31 countries.
2. Sweden recently announced tax breaks for repair related activities.
3. Hong Kong to start ‘producer pays’ scheme for 70,000 tons generated in city annually
4. Apple operates a number of free Take back and recycling programs.
5. Norway has an e-waste take-back system in place for more than a decade now

Conclusion

1. In India, the amount of E-waste generated is rising rapidly. With the increasing dependence
   on electronic and electrical equipment, the rise of E-waste generation is well expected in the
   country.
2. The government schemes offer little relief unless they are implemented and they translate into profitable business there can be no real change.

Practice questions

1. What is E-waste? Examine the harmful effects of E-wastes on environment and human health.
2. Discuss various issues regarding E-wastes in India and give suggestions to solve the same.