Volume 5 Winter Issue of JILS Released

The latest issue of the Journal of Indian Law and Society (JILS), Volume 5 (Winter), was released by the Honourable Minister of Law, Judicial Affairs and Health, Chandrima Bhattacharya in the presence of Justice Altamas Kabir (former Chief Justice of India), Prof. Marc Galanter (Emeritus Professor of Law, University of Wisconsin-Madison), Krishnan Venugopal, Senior Advocate, and Prof. Ishwara Bhat, Vice Chancellor of NUJS and Editor-in-Chief of JILS, on the occasion of the 2nd MK Nambyar Memorial Lecture. Following is the Foreword of the Issue, with hyperlinks to the respective articles. For the full issue (including the Editorial Note), see here.

The past year has been a watershed year for gender justice. The passage of the Criminal Law (Amendment) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 have been positively received by the public. On the other hand, the regressive verdict in Suresh Koushal v Naz Foundation (2014 (1) SCC 1) (‘Naz-2′) was a huge set back, only partially redeemed by the progressive stance of the judiciary in NALSA v Union of India (2014 (5) SCC 438). While these defining and landmark statutes and judgments do have purely legal angles, we as a journal on law and society, take pride in providing the platform for analysis of such developments from an interdisciplinary perspective. The present issue includes two papers analyzing the intricacies of gender justice. As mentioned in our previous Foreword, last year, on our Blog, we published an insightful, interdisciplinary piece by a young graduate of NUJS reflecting on an incident of sexual harassment. This ultimately led to major institutional changes such as the formation of the Supreme Court Gender Sensitisation and Internal Complaints Committee (GSICC) and the drafting of the NUJS Guidelines on Protection of Students from Sexual Harassment during Internships. This incident reaffirmed the faith we have placed in interdisciplinary scholarship. With this issue, we now take another step forward in our endeavour to promote scholarly research analyzing law using the tools of social sciences.

Exploring the thematic linkages between poverty and criminal responsibility, Saurabh Bhattacharjee, in his note titled ‘Should Valjean have been Punished for Stealing Bread? Of Poverty and Criminal Responsibility, makes a threefold argument. He argues that liberal models of criminal responsibility cannot accommodate the defence of poverty, due to assumption of pre-existence of freedom and equality of choice. He further examines the tenability of invoking necessity and duress as poverty defences within the realm of general defences in criminal law, concluding that this would not be defensible. However, he argues that an argument of poverty and deprivation are more relevant in sentencing due to the individualized process. He concludes the paper by noting that the moral justification of criminalisation of manifestations of poverty such as homelessness, street vending etc. is very weak. He suggests that a practical solution would be a minimalist use of criminal laws.

Ipshita Sengupta, in her paper entitled ‘Nurturing Caring Lawyers: Rethinking Professional Ethics and Responsibility in India, highlights the declining standards, and public trust in the legal profession. She argues that the exaggerated focus on rules, legalistic thinking and analysis has distanced lawyers from their ethical sensibilities which can be remedied by reconnecting lawyers to the moral dimensions of their profession. In particular, she proposes a solution centred around Carol Gilligan’s ethic of care which may help lawyers to reimagine and reconstruct the legal profession.

In another thought provoking article, ‘A Critical Study of Free, Prior and Informed Consent in the Context of the Right to Development – Can “Consent” be Withheld?’, Ipshita Chaturvedi aims to widen the ambit of the legal contours of the principle of Free, Prior and Informed Consent (FPIC) to include the Right to Development. To this end, she first discusses the understanding and implementation of this principle by the State, the United Nations, international financial institutions and multi-national corporations. In particular, she elucidates upon the striking difference in the usage of the term by the World Bank and the United Nations Declaration on the Rights of Indigenous Peoples, 2007 – the former calls for free, prior and informed “consultation” instead of “consent”, implying the absence of the right of withholding consent. In this context, the Right to Development and its interface with FPIC has been examined, with the author arguing that the FPIC is contained within the Right to Development. She then analyzes judicial pronouncements on withholding consent in the context of FPIC, development and the concept of “consent”. Deviating from the norm of understanding FPIC from a right to self-determination perspective, she has attempted to present FPIC from a Right to Development standpoint.

As mentioned previously, this edition carries two papers which explore the developments in gender justice. In ‘Be it Manu, Be it Macaulay: Indian Law and the ‘Problem’ of the Female Body’, Kanad Sinha argues that the societal rhetoric of viewing a woman’s body as her husband’s property is constructed and justified on the basis of a notion of (ancient) Indian culture/tradition derived from the partial and selective reading of ancient Indian literature such as the Dharmaśāstra tradition stemming from Manu, ignoring many other alternative traditions. This strand of Indian tradition matches Victorian morality. He argues that the provisions of the Indian Penal Code regarding rape, adultery and other crimes against women survive in the 21st century as Victorian socio-legal mentality has a common meeting ground with the traditional selected Indian socio-legal mentality.

Taking the discourse on gender justice further in ‘Legal Recognition of Same-Sex Relationships in India’, Nayantara Ravichandran argues that attaining legal recognition of same-sex relationships is imperative in realising the ideal of equality, and therefore, should be considered as important, if not more, than overturning the decision in Naz-2. Since marriage laws recognise only heterosexual unions, same-sex couples are deprived of all the state, financial and social benefits that may be availed by heterosexual couples. In this paper, she explores various routes of recognition, concluding that the most viable manner of attaining the same would be an amendment to the Special Marriage Act, 1954.

Dealing with another pertinent issue, Sreyan Chatterjee in his paper, A Comparative Analysis of the Cost-Benefit Debate Around the Proposed Congestion Pricing of Roads in Delhi, has closely examined the economic viability of proposing ‘congestion pricing’ as a solution to the deplorable condition of traffic in India, drawing from the Delhi Government’s proposal to introduce a congestion fee for every vehicle entering the central districts. Undertaking both a theoretical and comparative analysis, he concludes that while the introduction of such a model is desirable, its success would depend upon the presence of certain pre-conditions, ranging from optimal quantum of ‘urban transport tax’ and diverse paying options to transparent and dynamic dissemination of policy-based information, determined primarily by varied social and political realities of the day.

This issue of the Journal also carries three book reviews. Armin Rosencranz, who needs no introduction to those interested in environmental law and otherwise, incisively takes us through ‘Churning the Earth: The Making of Global India which has been authored by Ashish Kothari and Aseem Srivastava. He appraises the piece through the lens of an activist-academic and finds it wanting in appreciation of the recent developments to environmental law and policy in India. Despite a commendable effort at identifying the key debates affecting the Indian polity, the book is dated in its appraisal of judicial and political currents which compound the impact of globalization in India – and this cuts the book short of being a comprehensive and up-to-date commentary on the diverse issues of the Indian democracy.

The book ‘Citizenship and its Discontents: An Indian History’, authored by Niraja Gopal Jayal has been critically reviewed by Ajay Gudavarthy. He has critiqued the author’s inability to rationalise the interplay existing between nationalism, neo-liberalism and the heterogeneity of identities as the prerequisites of reaching a conclusion as to the underpinnings of social citizenship and solidarity in India. He has evaluated the effect of the above ricocheting interactions on Indian democracy and particularly the subaltern who are now caught in a complicated maze of powerlessness, heterogeneity exclusion and militancy to conclude that the moment of active citizenship coincides with the growth of competitive contractualism and the decline of political legitimacy.

Rohit De has reviewed the book ‘Constitutional Nationalism and Legal Exclusion – Equality, Identity Politics and Democracy in Nepal (1990-2007)’, written by Mara Malagodi. The book is an account of the constitutional project of Nepal in the 20th century and the early 21st century. The reviewer suggests that transformative constitutionalism in Nepal is a great area of study for researchers and scholars, but progress has been slow due to factors like language barriers. He is of the opinion that the book therefore makes a significant contribution to the conversation of comparative constitutional law. He however notes that the book’s focus on text and case law leaves the reader curious about the judges’, lawyers’ and the citizen’s perception of the Constitution. Furthermore, he opines that focus on issues like social and religious exclusion subsume other crucial issues like economic, social and structural inequalities.

In the abovementioned two books under review, both Malagodi and Jayal explore the common themes of citizenship, democracy and constitutionalism. The books provide a historical narrative and an incisive account of constitutional projects in two neighbouring South Asian countries, India and Nepal. We have chosen the books with the hope that a reading of both these books will paint a more complete picture of the story of citizenship and constitutional experience in South Asia.

On a different note, we would like to gladly inform all our readers that our Journal will henceforth be printed and distributed by the Eastern Book Company (EBC) Group. Established in 1942, EBC is one of India’s foremost and most reputed publishers. The EBC Group also publishes the Supreme Court Cases (SCC) series, one of the most well-known and prominent law reporters in India. We look forward to a very long and fruitful association with the Company. We are thankful to Mr. Sumeet Malik, Director of EBC, for his understanding and patient approach during our negotiations. Henceforth, alongside the print version, the Journal will be indexed and available in full on the SCC Online database. We will also continue hosting the Journal on our website. Needless to say, we will always be grateful to our previous printing partner, Hyam Enterprises.

We also take this opportunity to thank our Editor-in-Chief, Prof. (Dr.) P. Ishwara Bhat for his continuous support and unwavering faith in all endeavors of the journal. A special thanks to our faculty advisors – Dr. Lovely Dasgupta, Ms. Ruchira Goswami and Mr. Saurabh Bhattacharjee, for their constant guidance over innumerable issues. We are perennially indebted to the members of the Graduate Advisory Board as well as the peer review board. Their expertise and guidance is invaluable to us. We must mention the regular support and assistance we receive from several alumni and former members of the Editorial Board. We are grateful to all the members of the JILS family who helped us reach the agreement with EBC. We are also very grateful to Prof. M P Singh for all the support and advice he has extended to us. We sincerely thank our readers for their interest in the publications of the journal and in our blog. We hope to continue to live up to your expectations.

- The Board of Editors

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Conversation with Prof. Nandini Sundar, Professor of Sociology at DU

NS1Prof. Nandini Sundar is a Professor of Sociology at the Delhi University. She was one of the lead petitioners in the well-known case of Nandini Sundar v. State of Chattisgarh (WP (C) 250 of 2007). She won the prestigious Infosys Prize in 2010 for her contributions to social sciences. She has several publications to her credit and writes regularly for the newspapers. She kindly agreed to have a chat with us [Vasujith Ram, Executive Editor and Shambo Nandy, Advocate and former Executive Editor] in Delhi. Following are the excerpts from the interview.

Q: Could you tell us a little bit about yourself? What drove you towards taking up research and teaching, and more particularly why did you choose sociology?

A: I had taken up humanities in high school as I always knew I wanted to do something that required engagement and interaction with people. This is also the reason why I took up sociology. I did a year of sociology at Delhi University. My first year in college was in 1984, and I remember that the class spent most of the time visiting the relief camps that Prof. Khera took us to. I was also suffering from jaundice and couldn’t attend many classes. Following this, I went to England to do philosophy, politics and economics [PPE]. Thereafter, I completed my PhD in anthropology from Colombia. I liked philosophy and political theory but wanted to do a subject which enabled you to interact with and interview people.

I wish I had done law. Unfortunately, by the time I considered doing law, I was not in India. It was destined to be a missed opportunity I guess. My teaching trajectory commenced with JNU  and I moved to DU in 2005.

Q: Could you tell us more about your PhD research and the themes it touched upon?

A: My PhD research was on the history of rebellions against colonial land and forest policy in Bastar. This was later published as a book, Subalterns and Sovereigns, in 1997.

Q: Did your research have anything to do with you filing the Salwa Judum PIL?

A: I would say: Yes, it did. For me, Bastar is a place to which I have been a regular visitor for the last 20 years. It’s like home to me. I consider several people like my family there. Though I went to Gujarat in 2002 and witnessed it in a horrible condition, Bastar held a personal relevance for  me. On the point of the work and research that went into filing the PIL, I would agree that my PhD research aided me a lot in terms of familiarity with the area, knowing the local people etc. However, I had to observe, understand and learn the area from a whole new dimension this time.

Q: What made you take up activism based on your study? Would you suggest that activism and theory are necessarily complementary in nature?

A: Not necessarily – it’s perfectly possible and maybe even desirable to carry out research without engaging in any kind of activism. Sometimes you have to engage in activism not as a researcher, but as a citizen. But since we teach equality, liberty and democracy as social scientists, I think we also have a duty to try and examine our own practice in these spheres.

Q: Can you tell us about the PIL? How did the idea come about? How was the PIL plannedNS2 and how did you all come together? Also, which lawyers did you approach?

A: I went with the PUDR-PUCL team in November, 2005 for the first fact-finding exercise. Then, we carried out the second fact finding exercise with the Independent Citizens’ Initiative which involved BG Verghese, Ramachandra Guha, EAS Sarma, Harivansh and Farah Naqvi. The PIL was essentially the product of the second fact finding. For a while, I had been deliberating with PUCL-Chattisgarh regarding whether they wanted to file a PIL, but they expressed scepticism fearing that it might backfire. So, when we came back in May 2006, Ramachandra Guha and EAS Sarma agreed on the PIL. Farah had been  engaged in the Bilkis Bano case in Gujarat for a long time (first riot-related rape case conviction in Gujarat) which demanded lots of court visits. That’s why she couldn’t join us then. Therefore, three of us decided to independently file that PIL. Usha [Ramanathan] whose help I had sought for discussing our next step  knew the work of Ashish Chugh who was then a junior to Mr. Andhyarujina. She suggested that if Mr. Andhyarujina could be convinced and if he found potential in the case, then we had a good chance before the Courts. He was very sweet and agreed to our proposal. Also, it was Ashish’s friend named Pragya Singh, working at Karanjawala & Company, through whom the case was then filed by Karanjawala & Co., in April 2007. May 17 was the day of our first hearing. Mr. Andhyarujina argued and the court issued the notice but without giving any deadline. That was the first time that any State- body acknowledged the occurrences of violations bu the Judum. The fact that the event was also covered by the radio made us feel that the PIL was finally making some sort of difference. Then, in July I went to Bastar when the CPI had just came back from a rally across the border. This was the first large-scale public rally where people spoke openly about what was happening to them. Until that time people were scared to even raise the topic for discussion so much so that if you happened to visit the camps, people would try to dissociate themselves from the Judum: they would say that they came there voluntarily. Nobody was ready to talk about what had actually happened. The judum leaders  maintained constant vigilance regarding what people were saying. The rally found people forwarding letters to Manish Kunjam, CPI leader, explaining all that had happened in their village. So, this was the first time that we had some statements from villagers themselves as  till then we only had reports  from fact-finding exercises. Without corroboration by villagers in their own words, these could have been easily dismissed on the ground that those were the delusional opinions of “Maoist supporters” etc. Then, Rama Sodi one of the CPI activists suggested that we approach the court. We discussed it with the CPI in Delhi and they decided that three persons from Bastar who themselves had been affected, would file the petition. So, a companion petition was filed in August, 2007. The first hearing was in October 2007 and we had more than a 100 testimonies which we used in the petition.  Many of these testimonies were on little scraps of  paper explaining what had happened. Nitya Ramakrishnan drafted the petition and Mr. [Ashok] Desai argued. Mr. Desai and Nitya have been deeply involved throughout, working pro bono as have all the lawyers on this case. I learnt a lot throught this experience – becoming familiar with words like “Dasti” and “giving appearance”. The first case was only against the Government of Chhattisgarh, while the second case was against the Government of Chhattisgarh and Union of India. Both the cases were clubbed together. Things worked out really well because Mr. Desai and Mr. TR Andhyarujina knew each other. For example, it sometimes happened that both would come and argue while sometimes only one would come and argue on behalf of both. Sometimes we had embarrassing situations when both would give conference time at the same time, but we somehow managed and they were very kind. In October 2007 the court issued notice on the second petition and in March 2008 they asked the NHRC to inquire into it. The NHRC enquiry was conducted in the summer of 2008 and the resultant report was somehow an attempt to white-wash the happenings. They sent a team of 16 policemen. It was evident that NHRC was acting at the Home Ministry’s behest, from the fact that they leaked the report to leading newspapers before giving it to the Court or us. Fortunately, the PIL was heard by Justice Balakrishnan (who was the Chief Justice between 2007 and 2010) along with the Associate Judges as all the PILS were being heard by the Chief Justice during that time. Justice Balakrishnan analysed the report by reading  against the grain in a way and realised the enormity of the situation. He didn’t issue any firm directions but he made good noises. At that time I was disheartened and even considered giving up because the NHRC report had countered all our efforts, but Mr. Desai, Nitya, Menaka [Guruswamy] were against surrendering and urged me to use the report and use the points to build our own case. Following this, we filed the counter-arguments mentioning the points on which we agreed or disagreed with the NHRC observations. The situation was so bad that they could not really hide it and there were lots of discrepancies between what they actually found  – evidence of large scale burning – and their final conclusions.   Nothing eventful happened between October 2008 and 2010. In 2010, there was a discussion about having a monitoring committee Justice Balakrishnan asked us the names of people who would be a part of the monitoring committee – and asked us to show consent letters. We got consent letters from several eminent people.

In the summer of 2010, Justice Balakrishnan retired and the case went to Justice Reddy and Justice Nijjar who began to take much more interest in it. The fact that they were already dealing with the Gompad case filed by Himanshu Kumar in 2009 was the reason why our case was transferred to them. Thereafter, all the Chhattisgarh cases were clubbed together. Although we kept pushing the rehabilitation committee, they didn’t seem to be very keen on having it. There weren’t keen on having the Supreme Court monitor the registration of FIRs either.

In 2009, Operation Green-Hunt was launched. When operation Green-Hunt started in 2009, some of the newspapers, (until then few of the major newspapers had any correspondents in Chhattisgarh) namely, The Indian Express and The Hindu published about it. So, for the first time, we were getting a lot of coverage of what was happening.  In March, 2011, there were reports about 3 villages being burnt. For the first time, an immediate detailed report was prepared on the matter (by Aman Sethi). So, all the attention shifted to the SPOs. Finally, it was seen that the 2011 judgment was mostly focussed on the SPOs, whereas we had been hoping that the judgement  would also include a monitoring committee. However, the 2011 judgement delivered pretty much all that we wanted except the monitoring committee; the absence of which obstructed the implementation of the directions touched upon by the judgement.

Q: The Judgment has brought to the fore one core Preambular value, which was lying dormant in our Constitutional discourse – the value of fraternity. While liberty and equality are oft-discussed themes and consistent aids in constitutional interpretation, the judgment has probably for the first time used fraternity as a value and linked it to fundamental rights and directive principles. Your thoughts?

A: The glory of the judgement can entirely be accrued to Justice Sudershan Reddy and Justice S.S. Nijjar (more so by Justice Reddy). In fact, he didn’t use much of our petition, because it was mainly based on human rights violation, field-work, etc. but he focussed on Constitutional aspects of equality, fraternity and the whole of the preamble. Also, he had done a lot of his own research on the causes of Naxalism and its background. Moreover, he comes from Andhra Pradesh and that’s why he had a good sense of what the issue regarding the Maoist activities actually was. I would say that the judgment was an embodiment of his constitutional ideas. It is also reflected in the ‘Black Money’ judgment which was pronounced at the same time.

Q: Is there any other litigation you are part of? Are there any more PILs you are planning to file in the near future?

A: No, thank god! [Laughs]. Actually – yes, I am part of another case dealing with copyright law in the DU Photocopying Case as a part of SPEAK, an association of teachers and Scholars” defending the right to photocopy but I am not actively involved in it and have not done any work for it.

Q: You have said that you are disappointed on how the order was implemented. Have you filed any contempt petition?

A: Yes, we filed a contempt petition in the year 2012. In 2011, we got this wonderful judgment. As soon as it came, the Chhattisgarh government renamed SPOs as ‘Armed Auxiliary Force’ and provided them with better guns and salaries while the judgment said ‘disband all the SPOs’, ‘punish all those who are guilty, including the SPOs’, ‘use them only for traffic management’ etc. So, earlier they were harassing people with normal guns .303 but now they were doing that with AK-47s. The judgment also dealt with how they were not educated enough to be able to understand the professional obligations that you have during armed insurgencies, the requirement of policing. So, many people started producing fake 5th grade certificates. It was a complete slap in the face of the Court. It was really contempt of court. In July 2011, the Court also directed the CBI to investigate the burning of these three villages. The CBI was supposed to submit the report in 6 weeks but they did nothing during that time. The first time they went to investigate was after 6 months in January, 2012. When they again went in February, they were attacked by the SPOs and were locked up in a room. There was so much firing outside the room that they had to barricade themselves. After that, we filed a contempt case, since these are. the same bunch of SPOs who were supposed to be disbanded. CBI has still not submitted its report four years later. Since 2012, we have not had any proper hearing on contempt; there were a couple of hearings in between where the other party was asked to respond and as usual they gave silly responses. The Chattisgarh Government has filed an affidavit saying that not even one of the erstwhile SPOs was in possession of arms which is completely false. The Chhattisgarh government doesn’t’ even care about lying to the court – they are confident that nothing will happen to them. They do not show  any intention of coming to the court and each time provide petty excuses.

13-dr-nandini-sundar-infosys-prize-winner-1Q: You have played an active role in voicing the causes of the tribal people. You have travelled yourself to these areas. What do you think are the difficulties and roadblocks faced by these regions with regard to educating children and setting up other necessary institutions?

A: Education in these areas is seriously messed-up for a variety of reasons; one is that even during non-conflict times there is very little scope for education in the adivasi areas; teachers don’t come, schools are in terrible conditions, you have one teacher for hundreds of kids, schools don’t have basic facilities. So, all the possible problems faced in the arena of schooling across the country are unveiled in a magnified manner here. There have been several reports in the past 2 years about discrimination in the way teachers teach adivasi or dalit children. The other problem is that teachers are usually from non-tribal areas, so there is a language problem and the third and the biggest problem is that education in tribal areas is often used as a way of converting children. The VHP, the RSS and the Christian missionaries set up large networks of paid education. In the case of educating the adivasi children, it’s not really about giving them critical education that helps them to cope with getting jobs or opens up their mind or exposes them to new ideas but it is more about making them ‘civilised people’; forcing them to forget about their own adivasi customs and become urban and practise Hindu festivals. It is really a project of cultural transformation rather than education. When the Salwa-Judum happened, all the teachers were ordered to come and live in camps.  Even the school that had been working in the villages stopped working and now after so many years, the teachers are not willing to go back as they are getting paid without doing any work. Government has handed over these areas to the Maoists and hence, nobody wants to go there. Maoists having blasted a school is another reason not to go there. Therefore, there is an entire generation of people there who have had no schooling at all. And now, whenever people do want their children to go to school they have to put them in the 1000 seater ashrams which the government is building. The children feel completely lost as they are far away from their parents – and again there is huge “civilizing” stuff going on. One thing we had been asking from the beginning is to make the security forces leave the schools and let the teachers come  back because that’s the only way to bring about normalcy and peace. A lot of the schools did get vacated after a Supreme Court order. However, what the CRPF has done is to set up their camp in the school compound.  Thus, there are lots of villages where the CRPF camps are right next to the schools and have created special problems for girls because there are girl’s hostels where all these men bathe under the hand-pumps and roam around and it is not the kind of atmosphere young girls can study in.

Q: What kind of injustice did you see there?

A: All kinds! There is this young group of lawyers who have started the Jagdalpur Legal Aid group. They’ve been working there – three-four people from DU law faculty – their reports on undertrials show that there is no judicial machinery. They don’t get produced for months on end, lawyers don’t talk to them, their families don’t know where they are, somebody could be held even if the name on the  accused list is somebody else. There is a complete travesty of justice. That’s the situation of undertrials especially in areas with conflict. People are locked up for months and years on end. The judicial system is extremely difficult for adivasis. Even for us when we conceived the PIL, we were lucky that the lawyers argued pro bono. But if you are just a regular litigant, it is quite hard. People don’t understand the language of the courts and the system. People sell everything to pay for lawyers fees – yet they don’t get any redress. One must read a book by Vasudha Dhagamvar – Role and Image of Law: The Tribal Experience. There is this chapter – `Prisoner at the Bar, Are You Rich or Poor?’, which eloquently describes the situation.

Q: You have written regarding some of the difficulties with our electoral system. How do you think our electoral law and democratic process should evolve and change, especially in the light of blunt populism, criminalization of politics as well as lack of representativeness plaguing our system?

A: One of the big reforms which is needed is that there should be a cap on spending by political parties and not just by the candidates. On that point obviously, the parties like AAP or any left party can’t compete with that kind of money that bigger parties may spend. Therefore, there is no level-playing field and unless you cap party expenditure you won’t be able to have that. Ideally, you should have state funding of elections and if you can’t  then you have to think of something else – because clearly money is playing a big role in determining who gets voted. This is evident by the increasing numbers of millionaires in the parliament and the dynastic rule and all of those things which are indicative of lots of money. Then, the other thing that I think is a big problem is the first-past-the-post system which means that people who get elected are not necessarily representative of the constituency. It may be desirable to get a candidate who may be not your first choice but is at-least your second best choice. You should be able to vote not just to have somebody in but also to keep somebody out. So, if you had a single transferable vote, say, for instance, I vote for BSP (first choice) and SP is my second choice in UP, I should be allowed to transfer my vote to SP if my first choice doesn’t win.

Q: You have studied and taught both in India and abroad. What are the differences that you see?

A: The US has very varied systems from Ivy League universities to community colleges. In places like Delhi University we often combine both, so students come from very varied backgrounds with different capacities. But what bugs me is when students who can, don’t attend their lectures, don’t do their work in time, and don’t do the readings given to them. They study only around the exam time. They should read and come to class so that we have a proper discussion. In the good universities abroad, students read and come to class as a matter of routine.

Q: What courses do you teach? Do you think the curriculum plays a vital role in shaping the outlook of a student?

A: I teach ‘sociology of law’, ‘sociology of media’, stratification, industry etc. to M.A. students and apart from this, I take MPhil courses. In the last few years, these have been on civil war, law and violence but the courses change.

Q: What do you think is the state of sociology of law scholarship in India today? Do you25infy5 think students pursuing social sciences should be taught the basics of law?

A: There certainly has been a huge revival in law and society scholarship and if we look at the number of people who are members of LASSNET, it is a big indication of the growing interest in the field. So, that is very encouraging and sociology of law courses are also being taught in more places.  For a long time, Professor Baxi and a few other people like Vasudha Dhagamvar or Lotika Sarkar were the only ones, and now you have people working on a huge variety of fields. It was also nice to see that Mr. Desai, Mr. Andhyarujina or Nitya Ramakrishnan do not restrict their arguments to just law in Court but also refer to literature or philosophy. I also teach Mr. Andhyarujina’s book on Kesavananda Bharati in my course. I think its good for lawyers to have a base in other disciplines.

However, I am unsure whether all social science students should be taught law. Of course everyone, including science students, must know some legal basics, but when we teach the sociology of law, we are not teaching people how to deal with crime once committed or what the crime is, we are just talking about how it constructs ideas of crime and normality and all of that.

For instance if we were to study 377, we would look at the social attitude towards gay rights, how a case comes to the court in this kind of situation, the kind of prior mobilization etc. Along with a legal perspective on the judgment, there is also lots of other stuff going on behind the case. So, this is what we examine and establish a relationship between these two.

Q: If you were to teach in law school one day, what course would it be, and why?

A: I am not sure.  It also depends upon who your colleagues are – sometimes you might want to each a collaborative course with them and it also depends on what else is being taught in the university at any given time, and what your own interests are at that time.

(Special thanks to Shambo Nandy, and all the internal members of the Journal for the assistance in conducting and transcribing this interview)

Image courtesy: here, here, here and here.

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Lecture by Prof. Galanter – 1st December

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Journal of Indian Law & Society

and

Constitutional Law Society, NUJS

Organize a Lecture

By

Prof. M S Galanter

On

Reflections on the Birbhum Gang-Rape case

Date: 1st December, 2014
Time: 4.30 PM
Venue: Room no. 107, National University of Juridical Sciences

About the Speaker: Prof. Marc Galanter is an Emeritus Professor of Law at University of Wisconsin Law Scool. Due to his focus on empirical legal research, he is a leading figure in the Law and Society movement – he was Editor of the Law and Society Review as well as the President of the Law and Society Association. He is well known for his article, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change”, published in the Law & Society Review (1974), which is one of the most cited legal articles of all time. He has long been associated with India, having written the books “Competing Equalities: Law and the Backward Classes in India” (OUP 1991) and “Law and Society in Modern India” (Oxford 1993).

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Lecture by Prof. Apurba K Baruah – 22nd September

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Journal of Indian Law & Society

Organizes a Lecture

By

Prof. Apurba K Baruah

On

Kinship, Civil Society and Citizens in the North East

Date: 22nd September, 2014
Time: 3 PM
Venue: Room no. 107, National University of Juridical Sciences

 

About the Speaker: Prof. Baruah is the Academic Director (Hon), Institute of Social Change and Regional Development, Guwahati, Former Professor and HoD of Political Science, NEHU, Shillong and Member, North-east Monitoring Committee, Indian Council of Social Science Research. He has also been a member of the Indo-Russian Joint Commission on Social Science Research. He is the Founder Secretary, former Vice President and a life member of the North East India Political Science Association (NEISPA), as well as the the Founder Secretary and a life member of the North East India Social Science Congress.

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The Racism Quandary

by Avani Chokshi

The release of the movie ‘Mary Kom’, which traces the life of the Indian boxing champion of the same name, has led to huge controversies with people questioning the decision of the creators of the film to cast Priyanka Chopra- an actor apparently without the distinctive North- Eastern physical features- as Mary Kom. Similar controversies over the division between North-Eastern Indians and their mainland counterparts have sprung up incessantly and increasingly over the past decade. These include the Nido Tania controversy, where Nido Tania, the son of an MLA from Arunachal Pradesh, was beaten up with iron rods in a shop in Delhi, leading to his death. Racial motives were attributed to the offenders. Similarly, the SMS hate campaign against North-Eastern Indians, and the assault on women from Singapore, the complaint registration of which was delayed on the grounds that they looked like North-East Indians drew cries of public outrage. On a yet another embarrassing occasion, the police failed to take any measure against assaulters of two Manipuri women. The police were stirred to action only after the public pressurised them. These are not merely isolated incidents against individuals, but are manifestations of racial profiling and discrimination, which is entrenched in the fabric of our society’s past and present.

While discrimination against people with Mongloid features occurs majorly and must be addressed, it is also important to note that racism in India isn’t confined to such instances. Various other cultures too have been marginalized by Hindi speaking North-Indian races. The fairer skin of these races is deemed superior and thus desirable. The omnipresence of fairness products in India is a manifestation of the commonly held notion of darker the skin more inferior the race, further endorsing the deeply pervasive racial differences. Advertisements of these products promulgate the societal conviction of a hierarchical system where people with fairer skin are deemed inherently superior. The recent banning of fairness advertisements may be said to be directly correlated to debunking race. South Indians have customarily been dismissed as ‘Madrasis’. Racism in India is manifested in day to day jokes and culture. Even mainstream Bollywood movies have been seen to propagate racism.

The pertinent question brought forth by these incidents is the necessity of an anti-racism law in India. Unlike the USA, UK, and Australian Censuses, the national Census of India does not recognise racial or ethnic groups within India, but many of the tribal groups are categorised as Scheduled Castes and Tribes. This post will seek to question whether these and other social groups in India continue to be discriminated against because of their race, and whether an anti-racism law in India is needed.

As with any legislation, there are pitfalls in having an anti-racism law. One of these is the possibility that such a legislation may infringe upon the right to free speech. For instance, the recent law against Racism and All Forms of Discrimination passed in Bolivia has been cited as an argument for introducing an anti-racism law in India. However, Article 16 of this statute is as follows, “A medium which authorises and publishes racist and discriminatory ideas will be subject to economic sanctions and to suspension of its license to function, subject to regulation.” This is clearly inconsistent with the ideal of free speech. Similarly, the Victorian Racial and Religious Tolerance Act (2001) in Australia has proved controversial on the same grounds.

There are several domestic laws that aim to eliminate race-based discrimination. An analysis of these provisions and their shortcomings would better highlight the need for a comprehensive anti-racism law-

Article 15 of the Indian Constitution provides that the State cannot discriminate on the basis of, among other things, race. However, the practical applicability and enforceability of this Article on crimes of a racial nature must be scrutinised. Due to its status as a fundamental right, only crimes perpetuated by State can find relief under the article. Thus Article 15 prima facie fails to protect victims of race based crimes committed by private individuals.

Article 371 of the Constitution lays down special provisions for the states of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Tripura, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh and Goa. While the provisions relating to the mainland states primarily relate to development, employment administration and education, the provisions for the North-Eastern states are far more extensive. These provisions include protecting the “religious and social practices” of the Mizos and the Nagas, and empowering the Legislative Assembly of Nagaland the right to ratify any Act of Parliament regarding “ownership and transfer of land and its resources” before application to Nagaland. These provisions have received a variety of reasoned responses over the years, ranging from lauding this article for empowering the people to criticising it for failing to protect the Naga community  as a whole and being undemocratic. Another issue that arises is that conferring these far-reaching special rights on the North Eastern states widens the gap between the rest of the mainstream India and these states and highlights the fact that citizens of the North-East are perceived more as foreigners than as Indians.

Like the Constitution, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the SC/ST Act) seeks to protect the interests of certain minorities In India. As one of the foremost anti-discrimination legislations in India, it is similar to an anti-racism legislation in the sense that it protects a certain class of people from the ones outside of it. However, while the SC/ST Act protects on the basis of caste, an anti-racism law would protect on the basis of race. Though these two classes of people do often overlap, there are communities which fall outside the purview of one but not the other. Such victims would have no specific recourse in law, and would have to move for relief under the general provisions of Article 15 of the Indian Constitution. These might include tribes such as Gonds of whom only a fraction are classified as Scheduled Tribe, as well as whole divisions of racial minorities such as those with Mongloid features.

Though this distinction is apparent prima facie, the problems due to the distinction are slowly disappearing. A recent directive from the Ministry of Home Affairs declared that all offenders guilty of atrocity against North- Eastern Indians were to be charged under the SC/ST Act. This gives the impression that a certain race of Indians- or those with Mongloid features- are being protected under the SC/ST Act, despite their not belonging to the categories enumerated in the Act. However, this would not create a precedent of giving relief to victims of racial discrimination belonging to other races outside of the Sc/St bracket. The rationale of the Ministry of Home Affairs was that since most North- Eastern Indians are members of the Scheduled Tribes, they could be protected as a group. Consequently, a person outside of the North-Eastern community who was a victim of crimes based on racial discrimination would have no recourse under the SC/ST Act unless she was from a community that was majorly composed of members of the SC/ST communities.

This same directive provided that the use of the term ‘chinki’ could beget a penalty of imprisonment for up to five years. That the use of a racist slang, no matter how offensive, can lead to an imprisonment of five years has also been condemned. Though the law’s punitive ramifications seem to be unnecessarily harsh, there can be no doubt that this law, if properly implemented, would severely discourage race based offences- if only against Northeastern Indians. However, for a law to be properly implemented in India, the police first have to be convinced of the legitimacy of the law. Some have argued that the problem of institutional racism is when police try to suppressor dismiss the crime as insignificant. There is a tendency to cast aspersions on the character of the victims or complainants and refuse to register first information reports, or of putting unnecessary pressure on the victims to withdraw the case. For instance, in a case where the first response to a Manipuri girl found dead under suspicious circumstances was to register a case of suicide, which was only converted to murder and culpable homicide after much pressure. Indian police have been recognised as be strongly biased against North-Eastern Indians. Some have been documented rejecting the possibility of rape of North Eastern women on the grounds that all of them are habitually prostitutes. Further, there are an extremely disproportionate number of North-Eastern Indians in the police force- for instance, out of 90,000 policemen in Delhi, only 43 are from the North East. Since the implementation of any law is strongly reliant on the police forces, it is to be questioned whether this amendment would have any tangible effect on the situation.

Apart from these domestic provisions that the Indian legislature has passed, India is also a signatory to ICERD (International Convention on the Elimination of all Forms of Racial Discrimination). However, India made the reservation that in case of any appeal to the International Court of Justice for a decision regarding ICERD, the consent of each party in each individual case would be necessary. Thus, any offending party might simply refuse to consent to the application of ICERD to their individual case. Accordingly, in international forums, the provisions of ICERD might not be sufficient to satisfactorily combat racial discrimination in India. Though India follows a dualist system of implementation of law, the judgment in Vishaka v Rajasthan in 1997, held that in the absence of any domestic law, international provisions would be significant. Thus, in Indian Courts, the provisions of ICERD could be applied in unison with other domestic legislation such as the SC/ST Act. However, this application could always be questioned as not inherently part of the Indian legal framework. Consequently, Indian legislation would better serve the purpose of a convincing, decisive anti-racism law.

The huge debate sparked off by the Mary Kom incident cannot be said to be purely legal in nature. The issue is not only one of enforcement or the lack of legislation but also of India’s sociological and societal nature. Indian society seems unable to accept the continuous rise of racism in our country, which further complicates an already complex situation. However, one must not forget the important role law does play in addressing neglected societal problems. For instance, after the Naz Foundation judgment[1] in the High Court of Delhi brought to the forefront the problem of homosexuality- which has been traditionally ignored in society- victims of discrimination on the basis of sexuality felt significantly safer and more socially accepted. Following this example, it is at the very least possible that a change in the legal status of race-based crimes will bring about a shift in the mindset of the people and is almost for certain that it will give them more protection.

A recent article by a renowned political journalist takes the view that the demand for an anti-racism law in India is a political exploitation of transient public outrage. According to him, laws in the Indian Penal Code, 1860 are sufficient to combat racism, and rather than a new law, active implementation of existing laws is necessary. However, the present laws are neither comprehensive, nor are they sufficient to combat the race based crimes in India as showed above. A new law, with the same deficient implementation by law enforcement agencies would nonetheless form a very valuable piece of legislation that pro-active judges could use to combat racism in India. Further, the simple act of having a new legislation come into being would sensitise the Indian populace to the issues of racial discrimination still predominant in India.

One must remember that the problem of racial profiling is more sociological than legal. Integration of people of the people who face the problem of racial profiling into mainstream India can only occur with an absolute change in the outlook of other citizens. The problem manifests itself in the most fundamental of things – even the National Anthem, a symbol of Indian patriotism and collective belongingness- excludes the whole of the eight states that form the Northeast. There is a need for decent primary education about the Northeast as much as the rest of India- only through knowledge can there be true acceptance and integration. Similarly, there can be no elimination of the problem unless non- Hindi speaking South Indians are included as thoroughly into the Indian identity as their North Indian compatriots. Accordingly, while a new and anti-racism law will only assist the situation, it can never completely remove the problem unless there is a complete change in the rather closed mentality of most Indians. Racism is a problem in India, and people must accept it as such.

(Avani Chokshi is an Associate Editor at the Journal of Indian Law and Society)


[1]Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277.

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The Assisted Reproductive Technologies (Regulation) Bill, 2010: A Case of Misplaced Priorities?

by Priyattama Bhanj

As surrogacy in India continues to grow by the day, the proposed law to regulate it continues to remain in incipient stages. The present guidelines are a consequence of those originally framed by the Indian Council of Medical Research (ICMR). However, these do not have any legal sanctity and are not binding. The present Assisted Reproductive Technology (Regulation) Bill, 2010 is yet to materialise into a much needed official regulatory mechanism and is undergoing debate amongst various ministries. The delay in enacting a legislation to regulate an industry that has been booming for almost a decade seems absurd because the bill was drafted as a response to  demands for the regulation of the surrogacy industry and even four years after the first draft, there seems no sign of a legislation. What further escalates the situation is that each time the draft bill is sent around for circulation, in an attempt to redress existing loopholes, newer aberrations arise.

I aim at understanding why the current half-baked suggestions and provisions take us two steps backwards for every step that we take ahead. For this, I look at two important aspects of the given legislation. Namely, the restrictions imposed on foreign couples and the rights available to the surrogate mother. I conclude that the current draft bill suffers from a crucial flaw in the form of misplaced priorities.

Restriction for Foreign Couples

It is disheartening to see the concerned Central Government themselves unclear on what exactly should be the provisions in the legislation to regulate surrogacy; the Assisted Reproductive Technologies (ART) (Regulation) Bill 2010. While the Ministry of Home Affairs considers gay couples and single foreigners as ineligible to have a child through surrogacy in India, the Ministry of Health and Family welfare along with Women and Child Development ministry have opined that surrogacy should be allowed for everyone without discrimination.[1]  Consequently, a Sudanese national had filed a petition at the Punjab and Haryana High court, contending that foreign nationals cannot be discriminated against in matters of surrogacy against Indians. The  High Court chose to dismiss this petition, upholding and in consonance with the Ministry of Home Affairs guidelines. [2]  The Court held that since the position of law regarding rights of foreign nationals for surrogacy was not yet finalised in the form of a legislation, deciding upon a case concerning the same would not be correct. The emphasis in this particular case is on a foreign national, who is single and seeking to have a child through surrogacy. If the main reason for restricting surrogacy is to prevent exploitation of the surrogate mothers, as cited by most ministries, then it seems arbitrary that single persons be disallowed from seeking the procedure; because the exploitation happens due to the lucrative monetary compensation, which would remain the same irrespective of whether a couple, individual, citizen or non-citizen wishes to avail the option of surrogacy.

The Definition of the term “couple” in the 2010 draft bill includes all couples living together and having a sexual relation legalised in India.[3]However, the 2013 draft has also brought in a few definitional changes to the previous bill. The term “couple” in the present draft is defined as a man and woman living in a shared household in a relationship along the lines of marriage, thus restricting foreign unmarried couples and singles from seeking to have a child through surrogacy.[4]The current suggestion on banning foreign unmarried couples and singles from having a child through surrogacy has given rise to two very pertinent contentions.[5] Firstly, it is argued by those against the proposal, that such a bias does not have a sensible or logical basis and there are more number of single parents in countries like the USA than India.[6]  Secondly, the judiciary recognises live-in relationships[7]and the draft ART bill allows Indian single and unmarried people to avail this procedure.  Such exclusion would hamper future drafting, thus either the restriction should be for Indians and foreigners alike, or have a better justification backing it. [8]

Further, apart from the patent discrimination the bill seeks to promote between foreigners and Indians, it is important to note that these measures would not address the problem at hand. This is because an the actual problem is that one of the intended parents may lose interest and abandon the surrogacy procedure[9]. This had happened in the case of Baby Manji (Manji Yamada v Union of India [2008] 13 SCC 518 (SC) ) Such a problem cannot be solved by limiting the option of surrogacy for foreign couples married for a minimum of two years.[10]Rather provisions mandating that the couple will be responsible for the baby under all circumstances[11] and in the instance of divorce, separate custody proceedings should be initiated wherein either of the parents should be responsible for the child.

The new recommendations seem like a clash of international and national interests in a transnational industry.[12]  A legislation that is seemingly domestic in nature, in reality has far reaching consequences globally. A 2012 study by the Centre for Social Research (CSR) estimates that around 40 % of the clients are foreign couples visiting India for reproductive services and nearly 30% are single.[13] Since most of the revenue for commercial surrogacy in India comes from clients outside the country, it is expected that such strict norms would see the surrogacy industry in other developing countries like Thailand surpassing and replacing the same in from India.[14]

Rights of the Surrogate Mother

Surrogacy in India involves moral and ethical issues as much as commercial ones. The surrogate mother is be exposed to the society`s disapproval amongst other problems. The present bill mentions that consent of the husband of the surrogate must be taken before undergoing any agreement with the intended parents. [15] The lack of an independent say in the entire process mars the equitable nature of the surrogacy contract since the bill makes it seem that the compensation is reached to by a well balanced bargain between both parties. It has also been argued that the surrogate mothers do not have an independent say in the medical decisions either and this needs to be looked into.[16]   Given her social background it is improbable she would be in a position to bargain or negotiate the compensation amount even though Section 34(3) says that the surrogate mother will be involved in deciding the compensation amount. These women are usually from rural backgrounds and are attracted to the monetary compensation resulting from the surrogacy, without understanding the consequences of the procedure on their health. Even though the bill does mandate the number of times a woman may undergo live births and embryo transfers,[17] it does not mention any other provisions for her welfare or safeguarding her from any health hazards. Additionally the lack of codifying other welfare needs such as counselling and support in instances of miscarriages or post-partum depression makes it seem as if the bill tilts a little in favour of the client and against the surrogate. Thus it is argued that there should be separate legal representation for the surrogate mother.

Another point that fails to come to the legislators’ attention is that of compensation, since the bill does not talk about the amount of compensation to be given to the surrogate’s family in case of death during or resulting from the pregnancy.[18] Additionally, there is no definite amount mentioned in the bill that must be paid by the intended parents in a surrogacy agreement. Currently majority of the payment is to be made after the birth of the child as compared to the 2008 bill wherein three quarter of the payment was made before the birth of the child, reducing the financial risk on part of the surrogate mother.[19] The intended parents are discouraged from directly approaching and broaching the issue of compensation with the surrogate mother, and it is the clinics in their capacity as the intermediary that channelize the payment.[20]

Thus Surrogacy, currently seems to be a classic case of, unintentional, misplaced priorities. The tightening of visa norms and restriction on the ‘type’ of couples’ eligible to undergo this process is said to be done in an attempt to safeguard the interests of the surrogate mother. But the actual interests of the surrogate mother, like her medical, monetary and psychological interests are hardly being taken into consideration. The need of the hour is that instead of putting a cap on who can seek to have children through surrogacy, the rights of the surrogate mother need to be drafted in a way that her interests are better protected. This could be ensured by reducing the number of embryo transfers and live births a surrogate mother can undergo and since revenue is the very reason they agree to become surrogate mothers’, the government should fix a certain amount for each surrogate pregnancy such that the compensation from one surrogacy suffices and the women do not have to undergo the process again.

(Priyattama Bhanj is an Assistant Editor at the Journal of Indian Law and Society)


[1]Teena Thacker, ‘Surrogacy law stuck as ministries bicker’ (asianage.com 2014) <http://www.asianage.com/india/surrogacy-law-stuck-ministries-bicker-713&gt; accessed Jan 15, 2014

[2] Shihabeldin v Union of India and Ors. CWP–15490/2013

[3]The Assisted Reproductive Technologies (Regulation) Bill 2010 s 2(h).

[4] Ibid.

[5]Vidya Krishnan, ‘India`s draft surrogacy Bill bars Homosexuals, live-in couples ‘ (livemint.com e.g. 2013) <http://www.livemint.com/Politics/ZsS2zs7KvqHlk4FCguW0EN/Draft-surrogacy-Bill-bars-homosexuals-livein-couples.html&gt; accessed Jan 30, 2013

[6]Staff Reporter, ‘One in FOUR children in the U.S. is raised by a single parent ‘ (dailymail.co.uk 2011) <http://www.dailymail.co.uk/news/article-1381069/One-FOUR-children-U-S-raised-single-parent.html&gt; accessed Jan 30, 2014

[7]Staff Reporter , ‘Live-in or marriage-like relationship neither a crime nor a sin: Supreme Court’ (timesofindia.indiatimes.com 2013) <http://timesofindia.indiatimes.com/india/Live-in-or-marriage-like-relationship-neither-a-crime-nor-a-sin-Supreme-Court/articleshow/26537308.cms?referral=PM&gt; accessed Feb 1, 2014 Uday Gupta v Aysha and Anr.  Special Leave Petition (Crl.) No. 3390 OF 2014

[8]Supranote 5

[9]Manji Yamada v Union of India [2008] 13 SCC 518 (SC)

[10]Consulate General of India, Vancouver BC, Canada, ‘Issue of visa for surrogacy’ (cgivancouver.com) <http://www.cgivancouver.org/devcgi/index.php/left-center-right/visa/surrogacy-purpose-visa&gt; accessed Feb 1, 2014

[11]The Assisted Reproductive Technologies (Regulation) Bill 2010  s. 35

[12]AninditaMajumdar, ‘Transnational Surrogacy: The ‘Public’ Selection of Selective Discourse’, EPW, Vol – XLVIII, No. 45-46, November 16, 2013.

[13] “Surrogate Motherhood – Ethical or Commercial”, Centre for Social Research, http://www.womenleadership.in/Csr/SurrogacyReport.pdf See also, “Surrogate Mothers underpaid, uncared for” (deccanherald.com 2013 ) < http://www.deccanherald.com/content/345338/surrogate-mothers-underpaid-uncared-for.html >,

[14]Supranote 5

[15]The Assisted Reproductive Technologies (Regulation) Bill 2010 s 34(16)

[16]Raywat Deonandan & Andreea Bente, ‘India’s Assisted Reproduction Bill and the Maternal Surrogacy Industry ‘, International Review of Social Sciences and Humanities , Vol. 4, No. 1 (2012), pp. 169-173.

[17]The Assisted Reproductive Technologies (Regulation) Bill 2010 s 34(9)

[18]Supra note 16

[19]Supra note 16

[20]Sheela Saravanan, ‘Transnational Surrogacy and Objectification of Gestational Mothers’, EPW, Vol XLV, No. 16, April 17, 2010.

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Supreme Court Judgement Striving to Fully Eradicate Manual Scavenging in India: Another Attempt in Vain?

by Saasha Malpani 

Campaigns, protests and laws have done little to end the perpetuating practice of manual scavenging in India. After more than two decades of enactment of legislations, the Supreme Court finally took notice of the issue and passed a landmark judgement in what may be a respite for human right activists all over the country. In its judgement, the Supreme Court disposed of a writ petition on the issue of manual scavenging in ‘Safai Karamchari Andolan v Union of India’ on March 27, 2014. The petitioners, in their claim, sought for the declaration of manual scavenging as being violative of Articles 14, 17, 21 and 23 of the Constitution as also the proper and methodical implementation of the ‘Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act of 1993’, a law made by the Parliament to prohibit manual scavenging and the continuance of existing dry latrines. Apart from the 1993 Act, the Parliament had also passed the ‘Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill of 2013’ in an attempt to bind all States to ban employment of manual scavengers by prescribing stringent punishments for the employers engaging them, and also to compensate them and their families by providing rehabilitation and alternate job opportunities. Along with the 1993 Act, a thorough implementation of the 2013 Act was also sought by the petitioners.

The 1993 Act, in its very first provision, stipulated that the Act was applicable in the first instance to only six states (Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal) along with all the Union Territories of India. Clearly, there was no mandate on all the states to compulsorily implement the law and hence, even after the institution of the Act, the practice had only barely abated. Owing to the inadequacy of the 1993 Act, the 2013 Act delivered further statutory provisions to identify manual scavengers and actually provide them with alternate employment opportunities. In addition, the 2013 Act rightly recognized Articles 17 and 21 of the Constitution as being institutive of the rights of persons involved in clearing of sewage, cleaning of tanks and removing human-excreta from railway tracks. In spite of all such legislative attempts, manual scavenging, remaining one of India’s greatest shames, is a practice that is still prevalent in various parts of India. While the 2013 Act in its provisions was comprehensive, the application of the law was negligible. Although it stipulated provisions for rehabilitation, the law did not apply in retrospect and it left it upon the State to come up with an outline for the scheme. The aim of the present Supreme Court judgement was, thus, to completely bring to a close the practice of manual scavenging by issuing instructions to properly implement the law and also prevent future generations from being employed in such dehumanising form of employment. Although the guidelines, in consonance with the 1993 and 2013 Act, have been reiterated for every State to follow so that the law isn’t rendered ineffective and manual scavengers are duly rehabilitated, the Court provides for no further monitoring in the matter. In the judgement, no additions have been made to the provisions of the 1993 and 2013 Acts in substantive terms. Instead, it acts as a tool simply to reinforce, reiterate and strengthen the Acts which, according to the Court, encompass the entire field in their provisions.

The ruling of the Court poses certain pertinent questions before us; especially in light of the facts and figures mentioned in the order. The judgement throws light on the fact that surveys conducted in the years 2002-2003 and 2013 by both petitioner organizations and the Ministry of Justice and Empowerment yield results that are in clear disjunct with each other. While the official statistics of the Central Government provide a figure of about 6 lakh manual scavengers in India in 2002 and 2003, the survey conducted by organizations advocating for the rights of manual scavengers provide for almost double that figure, i.e., 12 lakh during the same time period. Similarly, in Bihar, the petitioners have identified 1098 manual scavengers whereas the official Progress Report claims to have identified only 136 such workers. Such concealing of vital figures raises a fundamental question regarding the reliability of the government in satisfying the compliance sought from it. Since implementing the law in a more efficient manner is up to the State governments, their role in eradicating this practice remains questionable.

If one is to examine the reasons for failure of the prohibition on manual scavenging, one need not look beyond the administrative loopholes in the system. Even after a decade of enactment of the 1993 Act, there has been severe wastage and under-utilisation of the funds earmarked for implementation of the law. There has been a failure to achieve the objective of eradication of manual scavenging for which an initial investment of 600 crores was made. The committees that were set up to regulate the operationalization of the law were either ineffective or non-functional, and there was little or no usage of the law. In 2013, after the passage of the new Act, a renowned NGO called ‘Sulabh International’ appointed seven former women scavengers as ‘ombudsmen’; they were responsible for leading a campaign and completely eradicating the practice of manual scavenging from the country. This initiative was aimed at informing people about stringent punishments prescribed by the new law and discouraging the practice of employing workers to perform such a denigrating task. Such initiatives of forming regulatory bodies, if pursued at the national level, can increase administrative and financial efficiency and help in matters incidental thereto. Moreover, owing to their apathetic attitude, local bodies alone must not be assigned the task of identifying dry toilets and manual scavenging areas as this would be a highly inadequate measure for achieving complete eradication. While the Court’s order has alluded to such a failure on part of the previously formed committees to standardize the scheme, it can be criticized for not devising monitoring mechanisms for plugging the operational loopholes in its own guidelines.

Similarly, when it comes to redressal of grievances of manual scavengers, they have not been offered much. In the nineteen years after its passage, the 1993 Act had not witnessed even a single case of prosecution or conviction of any person employing manual scavengers; the law merely remained a legislation on paper. Even today, as the implementer of the legislation, the State, does not just have a shameful record in enforcing the law against manual scavenging, but it often proves to be the violator of such a law itself. According to the judgement, this is evident from the fact that manual scavengers continue to be hired in large numbers by the Indian Railways, the Army, public sector undertakings, etc. – encompassing almost all wings of the government. The issue is also concomitant to untouchability, a practice prohibited under Article 17 of the Constitution of India. Majority of manual scavengers in the country belong to the ‘Dalit’ caste and owing to the hierarchy of their generational occupation, they have remained stereotyped as untouchables to be employed for such denigrating jobs only. This is material in understanding why the practice of manual scavenging still persists in the country and thrives among certain sections of the population, such as the Dalits. How the Court has not addressed this issue more specifically in its order is moderately shameful. It has not offered remedies directed specially for Dalits – what they have access to is the general remedy of directly approaching the grievance redressal authorities. For over two decades now, legislations have proved to be of little significance in making progress in this matter. This solicits the need for intervention by the judiciary. It is imperative that the judiciary play an active role in condemning such acts by executing stringent punishments prescribed in legislations and setting precedents for the future. In light of the same, the present judgement provides that the aggrieved parties, in case of violation of their rights, are permitted to directly approach the concerned authorities at the first instance and then the respective High Court having jurisdiction. However, an inadequacy found within this redressal system is that “concerned authorities”, as mentioned in the judgement, is only vaguely defined. The Court has failed to mention with whom precisely the complaint must be lodged. If the victims approach the same authority employing them or the authority formed by the nominees of the state, the redressal system will be rendered futile.

Whilst the judgement can be lauded for propelling the movement against manual scavenging, it can be criticised for failing to completely acknowledge a very consequential sub-issue. According to Progressive Reports of the government, 95% of all manual scavengers in the country are women. The 2013 Act does not take the victims much beyond the scope of rehabilitation as was mentioned in the 1993 Act. The statutes do not deliver substantive provisions for sustenance of women manual scavengers and even the judgement solely provides for dignified living to Safai Karamchari women in agreement with their choice of livelihood arrangements. It is important to outline the concrete entitlements which shall be guaranteed to female workers since most of them may be sidelined as unskilled and lacking in formal training when posed with alternate employment opportunities. Hence, women workers must ideally be provided with benefits of not just livelihoods of their choice, but also with alternate employment after adequate training. Substantive measures can be in the nature of government funded schooling for their children along with scholarships for higher education and vocational training. Majority of these women working as manual scavengers are old and poor, and hence, must compulsorily be provided with a considerable amount of monthly pension by the government as also an enterprise allowance supported by counselling services. Perhaps in view of the above, the International Labour Organisation (ILO) has been working with the Indian government to ensure effectiveness of legislations and elimination of this form of discrimination based on social origin in five chosen states. It encourages women to quit their jobs as manual scavengers and seek employment elsewhere, it aims to provide educational advocacy and free treatment for diseases caused to such women. The goal of achieving complete eradication of dry latrines and manual scavengers will remain far-fetched if universalisation of such an initiative does not take place in all states on a mandatory basis.

The Parliament by creating laws and the judiciary by passing its judgement have shown inclination towards achieving the goal of creating a manual scavenging-free India. As is clear from above-mentioned arguments, the present Supreme Court judgement can be lauded as well as criticized at the same time – while it is an attempt to affirmatively enforce legislative enactments already in force, it fails to elaborate upon finer details such as administrative loopholes, lack of a monitoring mechanism and insufficiency of provisions for women as a result of which the practice still exists. It has also not been able to address the problem of lack of identification of manual workers and under-reporting of their numbers. The potential implications of the guidelines recommended by the court cannot be divorced from the reality of manual scavengers in the country since the past two decades. To fundamentally appreciate the problem, it is necessary to navigate through the existing data on manual scavenging and recognize the future bearing it may have on the workers. There is a need for less restrained use of the law and establishment of increased number of precedents to penalize employers as well; this may perhaps be a more effective solution than creating law after law to address the issue.

(Saasha Malpani is an Associate Editor with the Journal of Indian Law and Society)

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