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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Prisons and ‘Discipline’ in India

by Shishir Bail

In 1977 French Philosopher Michel Foucault authored what is widely considered to be a seminal work in the study of incarceration and imprisonment; the book titled ‘Surveille et Punir’ in French which was later translated to English as ‘Discipline and Punish’. In it, he traced the evolution of the ‘the prison’ as an institution in European society and placed its emergence among subtle but deeply significant political-economic process. Prisons, he argued, represented the farthest tip of the disciplinary form of power that was taking shape in European society during the 19th Century. The disciplinary form, first seen in the schools, factories, hospitals and military of that time, operated above all through the careful observation of the minute actions and bodies of its recipients, and the constant manipulation and evaluation of these in view of fixed and non-malleable standards. Through these processes of subtle but constant subjection, the disciplinary form was vital in the creation and replication of a class of subjects suited to the economic and political imperatives of the industrial age. Following on from the 19th Century French architect Louis Baltard, Foucault evocatively described prisons as “complete and austere institutions”. They are complete in their control over the bodies of their prisoners, and in their strict, unending regulation of all the movements and processes in the daily lives of those imprisoned. It was this feature of ‘completeness’ that distinguished them from schools, hospitals, factories and the military as sites of the exercise of disciplinary power. While the latter could only control particular aspects of the lives and behavior of their subjects; once the subject was imprisoned, the prison assumed control over them all.

This account of the historical origin of the prison form is important because it gives us a useful vantage point from which to evaluate the engagement between prison authorities and prisoners in India. Foucault’s account of the prison is centred on three major features of this mode of incarceration. The first is the isolation of individual prisoners; the second is ‘work’ or ‘labour’ as an integral component of incarceration; the third is the assumption by the executive authority in the prison of the power to modulate, or even potentially terminate the duration and intensity of the sentence. Without going too far into Foucault’s account of the salience of these processes, I may simply draw a line that underlies all three. This is that all of the three features of the prison form that Foucault describes depend on a high level of engagement, knowledge and control on the part of the prison administration of the movements and behaviour of prisoners. I argue here for an understanding of the engagement between prison authorities and prisoners in India that is fundamentally different from this.

Prisons in India are managed and operated by different kinds of staff. The Model Prison Manual of 2003 sets out seven kinds of staff in prisons; namely Executive, Medical, Welfare, Educational, Technical and Agricultural. From these, a narrow subset of the Executive staff is responsible for the ‘policing’ of inmates and the consequent maintenance of discipline; these are known as the ‘Guarding Personnel’. Guarding Personnel, consisting of the ranks of ‘Chief Warder’, ‘Head Warder’ and ‘Warder’ are the primary interface between the prison authorities and the inmates. The Model Prison Manual prescribes that in principle, there is to be one member of guarding staff for every six inmates. According to data from the National Crime Records Bureau; in the ten year period between 2001 and 2010, the ratio between guarding staff and prison inmates was roughly 1 for every 10 on average across the country. In contrast the United States, the highest incarcerator in the world, reported a ratio of correctional officers to inmates of 5.1 in 2005, while the United Kingdom reported a figure of 4 prisoners per prison officer on average between 2000 and 2006. The national figure however masks substantial differences between States; for instance, Jharkhand presented a ratio of 1 member of the guarding staff for every 28 prisoners, while Bihar and Gujarat were not too far behind with one member of the guarding staff for every 23 and 18 prisoners respectively. In contrast states like Kerala, Tamil Nadu and Andhra Pradesh reported ratios of guarding staff to prisoners of between 1 to 6 and 1 to 7; much closer to the prescribed amount. It is important to note however that these figures do not account for the shifts of the guarding staff. Prisons need to be watched over 24 hours a day, and it goes without saying that the actual numbers of guarding staff in relation to prisoners at any given time will be smaller than these depending on shift arrangements. On looking at the results reported across the country, it is clear that most, especially the larger States, are experiencing shortages of guarding staff in relation to prison inmates. This has instant implications for the manner in which prisons are run and ‘discipline’ is observed. Fewer staff members spread over larger numbers of prisoners are unable to keep a close enough track on their movements and behaviour. This shortfall in numbers also ensures that prison authorities are wary of taking openly antagonistic positions vis-à-vis prisoners, given their limited means of ensuring discipline, especially if the entire population mobilises against them.

What this translates to on the ground, is a relationship between inmates and the administration that is more tuned towards the achievement of a stable equilibrium than to the imposition of disciplinary methods in a top down fashion. The role of ‘Convict Officers’ in this regard is instructive; these are convicts who are selected by the Prison administration to aid in the maintenance of discipline and order in the prison. These persons perform an important physical function, but also serve as a vital via-medium between the prison authorities and the inmates. The provisions for productive work of different kinds in the larger Central Prisons may also be evaluated in this dual manner. It is important to note that this work is not ‘hard labour’ as conventionally associated with imprisonment. Instead, prisoners are given the opportunity of engaging in skilled or semi-skilled work such as carpentry, cooking, baking or working with textiles and are remunerated for this work. On the one hand this serves the stated purpose of rehabilitating them and giving them the skills necessary to re-integrate into society; on the other, it assures the prison authority a pool of persons who have a strong stake in the maintenance of order and cordial relations in the prison.

To conclude, I have argued that the empirical realities of prison administration in India render unlikely the picture of prisons in the Country as imposing an ‘unceasing discipline’ on their inmates. The process of prison administration in the country is more accurately seen as one of frequent dialogue; motivated by a desire on the part of the prison administration to maintain a stable equilibrium. The enlisting of convicts as convict officers, and the provisions of productive work for inmates may both be seen as elements of this larger objective.

(Shishir Bail works at the School of Policy and Governance, Azim Premji University, Bangalore)

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Conversation with Justice AS Anand, Former Chief Justice of India

Justice AS Anand visited NUJS this year to deliver the annual DD Basu Memorial Lecture. Alongside, he kindly consented to have an interview session with us. Here are the excerpts of the interview. In the conversation, Justice Anand talks about various issues, such as governance challenges in the NLUs, the role of the NHRC, the Supreme Court decisions on minority educational rights, as well as Article 370.

Q: You were part of the Governing Council of National Law School Bangalore and you were also the  first Chancellor at NUJS, what do you think is this biggest governance challenge faced by the National Law Schools at this point of time?

A: I believe Lack of trainers, is one of the foremost problems that the National Law schools are facing today.  Though I wouldn’t say they are doing wonderfully well, they are doing a good job as their products stand out from the others. I have had a number of interns coming to me when I was in the office not only as a Chief Justice of India or as Chairman of National Human Rights Commission but afterwards, when I was a   freelancer. I have had some interns coming to me and they have always impressed me, more than the other students.

Q: That takes us to an allied question. It has always been noticed that the students of NLUs don’t join litigation or higher judiciary and tend to go into the corporate world. What is your opinion on this issue, and how can it be remedied?

A: The NLUs were conceived with the idea of improving the quality of the profession, but unfortunately, in majority of them, today, starting with National Law School Bangalore, campus recruitment is carrying students to corporate firms. Only a few get into to a solicitor’s firm, and even there the students would be engaged only in clerical assignments. That was not the idea for inception of the National Law Universities in the country. These universities have to provide a springboard for the students who join this profession. As Chancellor, when I laid the foundation stone of the NALSAR Hyderabad, I recall having requested the Senior Advocates and other senior lawyers to come forward and offer the students packages which could provide them with an incentive to join the practice. It may not be possible to match the packages offered by the corporate law firms, but they must take them and groom them. They often say there is overcrowding in this profession, but one must always remember that overcrowding is always at the bottom or the lower middle level of it. If you go at the top, for example in the Supreme Court there are only few and you can count them on your fingers.

I have always advocated that the senior lawyers owe it to the profession, to take these bright young students from the national law universities and groom them. I myself am now an antique, but senior lawyers are the ones who have to take it forward.

Q: You had a very long and illustrious career in the higher judiciary. There is a provision in the Constitution that allows eminent, distinguished jurists to be appointed directly to the Supreme Court. Do you think this provision has been implemented enough?

A: I believe that after the appointment of Justice Durga Das Basu, there has not been any such instance where there was implementation of this provision.

Q: Would you like it to be used more often?

A: Yes, but for the implementation of this provision the candidate must be of real eminence and not just in the eyes of those who matter in the profession or legal fraternity but also in the eyes of public. .

Q: How do you think this can happen, considering the collegium system of appointment?

A: On the present collegium system, the less said the better.

Q: That takes us to another question in the recent debate surrounding the age of the retirement of High Court judges, and whether it should be raised. What is your opinion on that?

A: I think that the age of the retirement should be increased. . However I am not saying that the HC judges who retire at 62 are any less brilliant than those who retire at 65 from the Supreme Court. We have had brilliant judges who could not make it to the Supreme Court, not because they don’t deserve it, but for circumstances for which they were not responsible. Two people I hold in very great esteem were both part of the Calcutta High Court, Justice Chittatosh Mukherjee and Justice PD Desai. They deserved to be in the Supreme Court which I believe has been left poorer due to their absence.

Q: You’ve had a very long association with the Jammu and Kashmir. You were the Chief Justice of the High Court there and you also authored a treatise on their Constitution. What is the constitutional situation there, and what do you think is the reason behind the lack of academic engagement with the issue, as the current reportage is mainly political and sensationalist?

A: The issue of Kashmir is embroiled in politics and it is an issue which is not devoid of solutions. Actually what is the problem? There is not even iota of doubt that the accession of Kashmir to India is full, final, legal and binding. Everybody forgets this, because it suits the powers on this side of the border and that side of the border, because the Kashmir issue has become their bread and butter, their halva-paani.

In 1947, sovereignty returned to the rulers of India. In Kashmir’s case however, at that time, Maharaja Hari Singh did not accede to either state, but signed a standstill agreement with India and Pakistan. Pakistan signed it, but went against it and invaded the region. When asked about it there were reasons as absurd as the invaders not being in their control. But then people can always look into the facts and understand the reality.  It was on October 26th, 1947, that the Maharaja signed the instrument of accession, exactly the same as other states and Mountbatten as the Governor-General of India accepted that accession. After accepting it he wrote a letter saying that that the final decision can be taken by the popular vote after law and order is restored and the land is rid of invaders. There was no legal sanction for it, and even assuming there was, the necessary preconditions have not been taken care of.  Do also note many people don’t know that the PoK has a Constitution of its own, and that constitution does not say they are part of Pakistan.

The Constituent Assembly was constituted in J&K and in 1955 when the drafting took place, Sheikh Abdullah gave the people the choice either to accede to India or to Pakistan or stay as separate from both. He repeatedly asserted that, neither Jinnah’s animosity nor Nehru’s concern should influence this vote and it should be, decided freely and fairly. The people decided that the region shall remain an integral part of India which is now reflected in Article 3 of the J & K Constitution. If that is not a referendum than what is? That assembly was the most fair one and no one has raised questions on their representative character. Hence, there is no doubt that the accession of Kashmir to India is full, final, legal and binding. However everybody forgets this, because it suits the powers on both the sides of the border and also because the issue has become their bread and butter.

Q: Then why do we have Article 370?

A: Articlce 370 has been created as a bridge. One may note that only at the stage just before the third draft of the constitution, the members of the Constituent Assembly realized that nobody from J&K was present. Then after consulting Sheikh Abdullah, 4 persons were nominated, who made it extremely clear that since they had not taken part in any discussion or drafting or debate in the framing of these provisions, special provisions would have to be created in their favour.

Q: You referred to judicial independence during the course of your earlier address. Now that you are a retired CJI, and you see judges approaching their retirement sometimes getting affected by the lucrative post-retirement benefits, what is your take on this issue? Do you think there can be judicial independence in light of post-retirement benefits?

A:  I don’t have any comments about my predecessors, but I can tell you personally that for 6 months after retiring as CJI, I refused to take any arbitration, any opinion or any consultation. A number of lawyers approached me asking to make an exception for them but I needed my cooling time. When the Attorney General approached me saying that the government was considering my name as NHRC Chairperson, I said I’d be very happy to have my name not considered. But since the Act said it had to be a former Chief Justice, it was an important call and I wouldn’t run away. I accepted it also because since at that time there were only 2 or 3 people who were eligible for this.

However, one concern is the number of tribunals that have been constituted.

Q: Regarding the NHRC, ever since its inception we’ve seen increasing involvement in the judicial system. We’ve seen this in the context of post-Godhra cases in Gujarat, and in the Bandhua Mukti Morcha and bonded labour cases. How do you perceive the role of NHRC with the changing times?

A: Whenever there is violation of human rights and it is brought to the notice of the NHRC or NHRC comes to know of it, it is morally and legally bound to consider it, take notice of it and take remedial steps. All the orders in Godhra case and others – I am the one who as chairperson of NHRC, took to the Supreme Court. Many people warned me that the Supreme Court might not interfere or that this might cause some criticism, but to me my conscience was clear, that I had approached the highest court to file the issue of infringement of human rights of the people. And it is then, the court’s conscience which determines whether they want to interfere in the issue or not. But it the end they did interfere.

Q: What do you think about the entire paradigm of minority rights adjudication by the Supreme Court? There have been several Constitution bench decisions, but none have cleared the air.

A: In the autobiography of Fali Nariman, Before Memory Fades, there is a reference to minority educational institution cases. I had asked him, when he was counsel for the minorities, whether the founding fathers contemplated that Article 30 would be applicable to post graduate speciality and super-speciality courses. He vehemently answered “yes, yes, yes!”. In his book, when quoting this incident, he writes, ‘but now I realize I was wrong. If I had admitted it back then , we would not be in the mess we are in today, which the Supreme Court has created, in case after case.

Special thanks for Prof. Shameek Sen for helping us conduct this interview.

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Looking Ahead: What after NALSA?

by Diksha Sanyal

The National Legal Services Authority v. Union of India [Writ Petition (Civil) No. 400 of 2012] has the potential to play a transformative role in altering the discourse on the State, citizenship and the transgender community. By recognizing the third gender and most importantly, an individual’s choice to decide one’s own gender, the Supreme Court has recognized in theory, what has been denied in practice: the equal rights of the transgender community as citizens of India. Their rights are now grounded in the Constitution in the form of Article 14, 15, 19 and 21.

However, the judgment only represents a starting point and a lot of how this discourse is shaped will depend upon the legal framework set up and executed by the State. Mere recognition as a legal entity is not a guarantee for material benefits, equality and justice in the truest sense of the word.  There continue to be formidable challenges ahead, which is why, many have received this judgment with some degree of trepidation. 

In this article, the author intends to explore the silences of the judgment and the recommendations of the report submitted by the Ministry of Social Justice and Empowerment (which the Supreme Court has relied on), to determine the possible impediments to the realisation of the rights of the transgender community with regard to the issue of their identification and recognition. 

One of the consequences that flow from bringing a marginalised group into the fold of citizenship is that they become eligible for social schemes sponsored by the State. This is where recognition and identification become pertinent issues.

The Supreme Court, while declaring the rights of the transgender community, has remained silent on how this process of interaction between the State and the transgender community is to be materialised. With regard to the transitioning between the male/female binary, the institutional processes and mechanisms have not been charted out. Relying on the report of the Ministry of Social Justice and Empowerment, the Court ruled that its own recommendations are to be read in conjunction with that of the Ministry’s report and that is how this landmark judgment is to be implemented.

The judgment stated explicitly that India would follow a system where not only the third gender would be recognized but also, individuals would be allowed to choose within any of the three genders, that is, male, female or transgender. However, such a model poses its own set of problems, mostly at the implementation level.  For instance, how will a community of individuals scattered across the male, female and transgender groups avail of benefits provided by the State to only one category of individuals, namely transgender. This raises the question whether this will dilute the benefits of allowing people to characterize themselves as male, female or transgender given that benefits will accrue to only the third category.  Further, the Supreme Court also directs that the transgender community should be regarded as a ‘socially and economically backward class’ and would be entitled for reservation. However, this could be an administrative nightmare given that the transgender community will have intersecting caste lines.

Administrative difficulties aside, there is larger issue of identification. The UNDP report prepared by Arvind Narrain and Venkatesan Chakrapani sheds some light in this regard. There seem to be three basic models of implementation. One is the certification model wherein, an individual wishing to alter his/her gender submits the necessary documents and a gender certification panel set up by the government, will designate the same. This system is in operation in United Kingdom and even closer home, in Tamil Nadu in the form of Aravanis Welfare Board. However, what procedures will be followed by this certifying authority is unspecified. In the absence of any proper guidelines, it remains to be seen what procedures are actually adopted. This is also the method that has been adopted by the Ministry of Social Justice and Empowerment in their report. The criterion or test for qualifying a person as a transgender will depend on a fact to fact basis and the fact that the person is a part of a particular transgender group will act only as a corroborative evidence.  Secondly, the report does away with the simpler model of providing an affidavit of declaring one’s gender and adopts a more bureaucratic procedure. Instead, it adopts the model where a certificate that a person is a transgender   would be issued by a state level authority duly designated by the state on the recommendation of a district level screening committee headed by the District Magistrate/ Collector and comprising of District Social Welfare Officer, psychologist, psychiatrist, a social worker and two representatives of transgender community and such other person or official as the State Govt/UT Administration deems appropriate.

Such a mechanism raises several doubts since might not be in full conformity with the self- identification model mandated by the Supreme Court.  It is entirely possible that the State will interpret such procedures differently and no two states may follow the same procedure. Secondly, such a procedure may lead to gender policing and might end up complicating the entire process making it cumbersome and even corrupt and arbitrary. This implicit trust in the benevolence of the State which has had a history of being a perpetrator of violence and has for the most part, systematically denied the rights of the transgender community seems to be problematic. Even though, it is understandable to require some kind of authorization to change one’s gender identity, it should be ensured that the process is as hassle free and un-bureaucratic as possible. Further, it is important mechanisms for proper checks and balances to ensure that the process remains as free and fair as possible.  

The other two models that have been specified in the report are the medical model and the self-identification model. The former is one where the transgender person usually gets a certification from the doctor diagnosing him/her with gender dysphoria or clearing the person for any Sex Reassignment Surgery (SRS) before the person can identify as transgender. Based on the WPATH (World Professional Association for Transgender Health), this is a standardised procedure often requiring the consent of the person undergoing the SRS. However, nonetheless, it has the tendency of pathologising bodies and treating gender fluidity as a medical concern rather than a social one. Further, this model generally is suitable for MtF or FtM transitions and is not suited for other transgenders who do not identify themselves within this gender binary.

The latter, that is the self-identification model places emphasis on however, the right to self -determination of one’s own gender and does not require a medical interventionist procedure or certification to identify as a transgender. As mentioned earlier, this method is followed in Argentina, under its progressive Gender Identity Law, 2012. Currently such a law, only operates for changing one’s gender to the opposite one and does not apply to those who do not identify themselves within the gender binary. This is one limitation of the Argentinian Law. However, in the near future hopefully the privilege of self-identification can be extended to other communities as well.

The Supreme Court does hint at the self- identification model. However, the mechanisms advocated in the report of the Ministry seem to be different. One hopes however, that the government while implementing the mechanisms for recognition of transgender rights will use the Supreme Court judgment to inform its processes rather than apply the procedure laid out by the Ministry in a mechanical manner. The certifying authority model is not inherently flawed, but a lot will depend on how it is carried forward and what processes are adopted for identification.

While the transgender rights movement has come a long way from their virtual invisibilisation in public life to the beginning of a healthy public debate on the same today, there is still a long way to go.

(Diksha Sanyal is a student of NUJS, Kolkata)

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