Editorial 1 : Why did SC not allow same-sex marriage?
Context:
- Recently in 2023, a Constitution Bench of the Supreme Court (SC) declined to legalise same-sex marriage, leaving it to Parliament to legislate on the subject.
What did the petitioners want?
- The petitioners had sought a ruling by which the Special Marriage Act (SMA), 1954, which provides for a civil marriage for couples who cannot marry under their personal law, should be interpreted as gender neutral, thus allowing same-sex couples to marry under it.
- The SMA, they argued violated Articles 14, 15, 19, 21 and 25 by not allowing marriage between same-sex, gender non-conforming, LBGTQIA+ couples. They sought that the words “husband” and “wife” as well as any other gender-specific term to be substituted by the word “party” or “spouse”.
The verdict:
- The Bench ruled that there is no fundamental right to marry, and the court cannot intervene. Though all five judges accepted that it was time to end discrimination against same-sex couples, they failed to reach a consensus on giving queer couples the status of a legally recognised “civil union,” with a majority of three judges holding that any legal status to such a union can only be through enacted law.
- Supreme Court (SC) said it could not issue a mandamus writ to Parliament; it determined the scope and effect of certain fundamental rights, and then ruled that the Constitution does not recognise marriage as a fundamental right.
The minority opinion
- It included the opinion of Chief Justice of India (CJI), which said that the LGBTQIA+ community had a fundamental right to form relationships and that the state was obligated to recognise and grant legal status to such unions, so that same-sex couples could avail the material benefits provided under the law.
- Queerness is a natural phenomenon, the CJI pointed out, which the Navtej Singh Johar case (which decriminalised homosexuality under section 377 of IPC) had clarified. The judgement in the NALSA case also explored the presence of the transgender identity and other forms of queerness.
- The Court said the consequence of the judgments on NALSA and Navtej Johar is that the members of the queer community are no longer second class citizens. But having said that, it stopped short of legalising same-sex marriage.
Why did SC refuse to read down the SMA?
- The Court felt that if the SMA was held void for excluding samesex couples, it would mean going back to a time when two persons of different castes and religions could not marry.
- Second, it said that if it were to read down — or up — provisions of the SMA, meaning add or delete words, this would be venturing into the realm of the legislature, which would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.
Will the legislature be open to the idea?
- Throughout the hearings, the government held that it was against same-sex marriage. It had also pointed out that judicial intervention would cause “complete havoc with the delicate balance of personal laws.”
- Activists and rights lawyers are not convinced whether the judiciary lobbing the issue back to the legislature will lead to any change. The Court has said the state must take “remedial action” because if it regulates marriage only for heterosexual couples, it “adversely impacts” the LGBTQIA+ community, resulting in their exclusion, and “denial of entitlements/benefits,” and that “this injustice and inequity results in discrimination.”
Way forward:
- The Court has set down a set of guidelines, from setting up a committee chaired by the Cabinet Secretary for the purpose of defining the scope of entitlements of queer couples who are in unions, to directing police stations to not harass the community.
- The Court said the state may choose from a number of policy outcomes: they may make all marriage and family related laws gender neutral, or they may create a separate SMA-like statute in gender neutral terms. They may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives.
Editorial 2 : Does India need to relook the Dam Safety Act?
Context:
Recently in 2023, a glacial lake outburst flood (GLOF) in North Sikkim’s South Lhonak Lake washed away one of the biggest hydropower projects in India, the Teesta III dam at Chungthang.
Status of dams in India:
- India has almost 6,000 large dams and about 80% of them are more than 25 years old and carry safety risks. A new Dam Safety Act (DSA) was passed in late 2021.
- Reports since the Sikkim disaster revealed there were no early warning systems, no risk assessment or preventive measures in place as required under the Act.
Provisions of the Dam Safety Act (DSA), 2021:
It was enacted as a response to deficient surveillance and maintenance causing dam failure related disasters.
- The Act listed key responsibilities and mandated that national and State Level bodies be established for implementation.
- It said a National Committee on Dam Safety (NCDS) would oversee dam safety policies and regulations;
- A National Dam Safety Authority (NDSA) would be charged with implementation and resolving State level disputes
- The Chairman of the Central Water Commission (CWC) would head dam safety protocols at the national level
- A State Committee on Dam Safety (SCDS) and State Dam Safety Organisation (SDSO) would be set up.
- Provisions require States to classify dams based on hazard risk, conduct regular inspections, create emergency action plans, institute emergency flood warning systems, and undertake safety reviews and period risk assessment studies.
- States are to report and record incidents of dam failures.
- Failure to comply with any provision of the Act is punishable with imprisonment upto 2 years and/or fines.
Challenges to dam safety:
- Experts say the Sikkim incident exemplifies blind spots in both legislation and implementation. The DSA does not promote risk based decision making and fails to incentivise transparency.
- The Act requires dam builders to conduct comprehensive dam safety evaluations, but there is no standardisation of how the failure is analysed and reported.
- The Sikkim GLOF reveals poor compliance at all levels, from the dam’s design to the spillway capacity (which controls the release of water from a reservoir).
Way forward for dam safety:
- Hazard profiling and regular assessment are also mandated by the Act. Hazard risk fluctuates at the slightest touch, responding to climate change, urbanisation, and the way people/companies use water or where they are located.
- Periodic reviews are expected to bring forth fresh inundation maps and new rule curves (which determine the capacity of dam reservoirs), all of which contribute towards the safety of the downstream areas.
- Spillway capacity and other metrics should be reviewed every five years or so, but periodic reviews are often not conducted or if they are, their findings are not not easily available in the public domain.
Conclusion:
Dam safety is a function of many parts: designing and constructing dams that adhere to safety margins, maintaining and operating them per guidelines, recording data in realtime in an accessible format, forecasting hazardous events and instituting emergency plans, to name a few.