Editorial 1: No ‘sayonara’ for Japan in Indo-Pacific geopolitics
Context:
- The visit by the Japanese Prime Minister, Fumio Kishida, to India, in March 2023, during which he engaged with his Indian counterpart, Narendra Modi, on global and bilateral issues, focused on cooperation between the G-7 and the G-20 (Japan and India hold their presidencies, respectively).
Japan’s New Plan for FOIP:
- Besides this, Mr. Kishida also unveiled “Japan’s New Plan for a Free and Open Indo-Pacific” (FOIP) and exchanged views about deepening the “Japan-India Special Strategic and Global Partnership”.
- The New Plan for the FOIP lays stress on the need to uphold the international rules-based order and respect each other’s territorial sovereignty. Japan’s FOIP clearly shows that Japan wants to reinforce the idea that it has been the main champion of the FOIP concept, and Mr. Kishida’s speech underlined that given the current geopolitical landscape with the ongoing issues of:
- Russia-Ukraine war
- Growing Chinese assertiveness in the South China Sea (SCS) and East China Sea (ECS)
- Chinese aggression at Indian Line of Actual Control (LAC)
- Violating territorial sovereignty (over sea and airspace) of Taiwan
Challenges before the Indo-Pacific (IP) Region:
- Japan’s new policy focuses on the numerous challenges facing the Indo-Pacific such as the Ukraine war, food security, and cyber space in addition to issues such as ensuring the freedom of the seas, and connectivity among others.
- Another challenge which has been highlighted is the lack of a united stand on “what the international order should be” — the differing position of countries on the Russia-Ukraine war has brought this issue to the fore.
- But there is a firm belief that the FOIP will be able to work with and embrace diverse voices and create an atmosphere of cooperation and collaboration rather than division and confrontation.
- For attaining this atmosphere of cooperation, ‘rule-making through dialogue’ should be encouraged. The fact that Japan under the FOIP should work alongside other like-minded countries in the region has been mentioned, with India being billed as an ‘indispensable’ partner.
The foundation of FOIP:
- There is a realisation that Japan needs to do much more in the region, and towards this, ‘four pillars of cooperation’ under the new FOIP have been outlined:
1.Principles for peace and rules for prosperity
- Vulnerable countries usually suffer the most if there is an erosion in the rule of law. Therefore, Japan wants to engage in economic development programmes such as promoting the implementation of the G-20 Principles for quality Infrastructure Investment.
2. Addressing challenges in an Indo-Pacific way
- Mr. Kishida talked about “expansion of cooperation for the FOIP by incorporating realistic and practical projects in a wide range of areas, such as climate change, food security, global health and cybersecurity”.
3. Multi-layered connectivity
- Under the third pillar, the three areas identified for introducing more such projects are
- Southeast Asia
- South Asia
- South Pacific/Pacific Island countries.
- Japan has made a new commitment of $100 million towards the Japan-ASEAN Integration Fund; it will promote the Bay of Bengal-Northeast India industrial value chain concept in cooperation with India and Bangladesh, and the new Palau International Airport Terminal project (an archipelago in the western Pacific Ocean) supported by Japan has also taken off.
4.Extending efforts for security and safe use of the “sea” to the “air”.
- Japan will help in strengthening the capabilities of maritime law enforcement agencies in other countries. Towards these objectives, Japan will implement the “strategic use of Official Development Assistance (ODAs)”, revise the Development Cooperation Charter and set forth guidelines for ODA for the next 10 years.
Conclusion:
- A Japan deeply invested in Indo-Pacific stability and prosperity is good news indeed for India and the wider region.
Editorial 2: Same-sex marriages: A matter for Parliament
Context:
- Supreme Court (SC), in Supriyo v. Union of India has referred the matter relating to legalisation of same-sex marriages to a Constitution Bench. Unlike the matter pertaining to decriminalisation of Section 377, which the Central government had left to the Court to decide, the affidavit submitted by it in the present case opposes such legalisation. The Centre’s stance has come under fire from sections of civil society, advocates, academics and scholars. Let us examine its line of reasoning.
Bone of contention: evolution of legal position through SC verdicts:
- In Navtej Singh Johar case of 2018, the Supreme Court (SC) decriminalised homosexuality by striking off parts of Section 377 of the Indian Penal Code (IPC) were held violative of Fundamental Rights of LGBTQ Community. This section which criminalised homosexuality, comes from a colonial era law.
- In Naz Foundation vs. Govt. of NCT of Delhi case (2009), high court (HC) of Delhi had held Section 377 of the IPC as unconstitutional.
- In Suresh Kumar Koushal Case (2013), SC overturned the previous judgment by Delhi High Court (2009) that decriminalised homosexual acts and criminalised homosexuality once again.
- In Justice K.S. Puttaswamy vs. Union of India (2017) SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution.SC declared that bodily autonomy was an integral part of the right to privacy. This bodily autonomy has within its ambit sexual orientation of an individual.
Recent developments:
- The central government recently seems to be challenging the progressive verdicts of judiciary. The core of the Centre’s argument is that same-sex marriage does not find any recognition within Indian traditions, ethos, culture and the societal conception of the institution of marriage. It has been argued that marriage is a sacrament between a biological male and a biological female to form a holy union to conceive children.
- Consequently, it is argued that Parliament, and not the Court, is the right institution to debate and decide if same-sex marriages should be legalised.
Stance of the Government
- Since it is unlikely that the Court will acquiesce to or reject the Centre’s stance without evaluating the same on its own merits, it is crucial to understand the foundational basis for this argument. The Centre’s stance, thus, finds a backing in four interrelated sub-arguments.
Social consensus:
- he question of same-sex marriage has the potential to alter how we conceive a family — the building block of society. Most conventional definitions of marriage see it as a socially accepted union of individuals for procreation. While same-sex marriages are not a threat to this understanding, they demand a nuanced alteration/adaptation of it. This requires deliberation at a social level first.
Personal laws:
- The current legislative framework promotes the conventional understanding of marriage. Marriages in India are administered through a complex legal structure with a religious genesis. They are consequently governed by personal laws including:
- Hindu Marriage Act, 1955
- Parsi Marriage and Divorce Act, 1936
- Christian Marriage and Divorce Act, 1957
- Muslim Personal Laws
- All marriage laws, except for the Special Marriage Act (SMA) of 1954, recognise marriages between a man and a woman. Parliament enacted SMA to facilitate inter-religious marriages. Therefore, the legislative intent behind the use of gender-neutral language in Section 4 of the SMA cannot be presumed, in and of itself, to be in favour of same-sex marriages either.
Role of procreation:
- As distinct from the constitutional morality adopted in the Navtej Johar case, which recognises consummation for purposes other than procreation, religious and societal morality still conceptualises intercourse as a procreative activity. This is why various laws pertaining to marriage mandate the consummation of marriage.
- This also answers the logical question of whether a marriage subsisting between a couple unable to procreate is a challenge to the idea of a valid marriage. In the legal conception of marriage, procreation remains a basic requirement.
- The same can be gauged from the above-mentioned provisions, which make marriages voidable on the basis of impotence and lack of consummation. Consequently, the parties to the marriage would not be labelled as ‘divorcees’ but merely as ‘unmarried.’
Evolving nature of relationships:
- Conventional conceptualisations of family and marriage are facing evolutionary challenges. The idea of live-in relationships is just as ideationally confrontational to marriage as same-sex marriages. Even though they are judicially recognised, live-in relationships are not equated to marriage under the law. The social acceptability of such relationships remains in a state of limbo.
- The apprehensions of the Centre regarding the conceptual alteration of the family unit, therefore, are not actually as regressively homophobic as they may seem prima facie. Instead, they are generalised to a broader social context. Much like live-in relationships, the issue of legal recognition of same-sex unions too requires a broader debate in society and the legislature.
Conclusion:
- It is not our case that the decisions of same-sex couples to reside together in a union do not deserve legal recognition. The rights issues are substantial and must be addressed immediately. Nevertheless, given the implications of recognising same-sex unions as a couple, the push to formalise the institution of same-sex unions must come from representative bodies such as Parliament.