By Anusha Peri and Ramya Chandrasekhar 

In the second piece of this two-part post, we look at UBI as a subsistence right, and its value in a moral economy.

IV. An unconditional minimum income as a subsistence right

In light of the above, we argue that an unconditional minimum income scheme like UBI is in order. A UBI refers to an income that is universal, unconditional and free from any corresponding obligation to work or prove willingness to work. It is strictly an individual entitlement, as opposed to being linked to the household situation.[1] The authors however, go one step further, and argue that UBI should not merely be a viewed as a scheme, but as a duty in relation to an individual’s basic right of subsistence.

The most critical oppositions to awarding an unconditional income the legitimacy of a right are (i) lethargic and unproductive individuals would now be taking advantage of the State’s benevolence as they are no longer incentivized to earn a living.[2] (ii) the grant of a UBI would amount to the performance of a positive act by the State and therefore within the traditional positive or negative rights dichotomy, it would be a discretionary directive for the state to progressively realize as opposed a crystallised right for a citizen to claim.[3]

The first opposition has already been responded to by us Part I, where the traditional moral conception of having to work do deserve state aid was debunked.

The premise to the second opposition is that, a), there exist two separate kinds of rights known as positive and negative rights, and b) that only positive rights involve some form positive act that needs to be performed which will necessarily involve huge monetary costs.

Henry Shue argues that there is no such distinction between positive and negative rights, and instead, what exist are basic rights, or normative moral rights, of which the right to subsistence is one.[4] He asserts that traditional negative rights also require positive acts to be performed, and vice versa, and that therefore, there exists a false dichotomy between these two types of rights which can be seen in a plethora of international human rights legislations that differentiate between civil and political rights and socio-economic rights.[5]

As Ruth Gavison argues, for traditional negative rights, such as the right to freedom of speech and expression, there is a positive obligation upon states to ensure a basic degree of subsistence that would enable full exercise of this right.[6] Similarly, there are negative duties attached to traditional positive rights as well. The non-interference with the only means of subsistence that an individual might have is one such duty. Consider the notification issued by the Ministry of Consumer Affairs, Food and Public distribution which stated that all persons purchasing grains from ration shops must link their Aadhaar to their ration cards.[7] The Supreme Court, in its latest interim order, explicitly refused to extend the deadline for such linkage. By actively excluding the impoverished, for many of whom ration shops and LPG subsidies act as the only means of subsistence, two pillars of the government: the executive and the judiciary have failed to perform the negative obligations associated with the right to food.

Because of these overlapping duties between positive and negative rights, Henry Shue argues that the focus should not be on the nomenclature of the rights themselves, but on the duties associated with what he identifies as basic rights. In this regard, he formulates three types of duties – the duty to avoid, the duty to protect, and the duty to aid.[8]

The authors argue that providing a UBI forms part of the duty to aid associated with the right to subsistence. Therefore, the authors do not argue that the UBI should substitute existing welfare schemes, but must supplement these schemes. The existing gamut of legislations only casts upon the State the obligation to protect and avoid, but not to aid. .[9]Therefore, using Shue’s framework of rights, the authors argue that a UBI plugs a lacuna in the human rights being exercised today.

V. The value of UBI within a moral economy

At the heart of any vibrant democracy must be the protection of the rights identified as basic, particularly subsistence rights. because a person who does not have an effectively implemented right to subsistence enjoys no rights at all.[10]

But there is one school of thought that views the UBI as a purely material solution to a problem that involves complex questions of morality.[11] A matrix of power relationships, social norms, and moral codes of communities and institutions defines the lives people live within capitalist societies.[12] Any injustice therefore, such as different forms of deprivation, will require a reconfiguration of this matrix, and not a purely material solution.[13] But, as Amartya Sen argues, there is no clear separation between the material and the moral, because they constantly interact and influence one another.[14] Any solution therefore, to problems that arise out of capitalism, such as the problem of deprivation, must be both material and moral.

Consider the legislations protecting rights-at-work. The Employees’ State Insurance Act provides material remedies to workers in time of medical distress, but at the same time, it also addresses the power imbalance between workers and employers by mandating employers to contribute to the general health of the workers and display a certain degree of care. A UBI will also work in a similar manner. It will provide liquid cash to all persons, thereby vesting them with purchasing power and agency that is currently robbed away in a grossly paternalistic attempt to predetermine the common woman’s expenditure. Further, it also can be a tool to correct various other power imbalances. Providing a UBI could allow for housewives to be remunerated for the extensive amount of physical and emotional labour they undertake within their home, a space not considered as a workplace.

In acknowledgment of the risks and the perquisites of unprecedented innovation, there exists a compelling burden on the international community to recognize the importance of legitimizing UBI as a human right that is indispensable for meaningful sustenance.

(This was the winning essay of the 1st JILS Essay Competition, 2018. The authors are recent graduates of the WB National University of Juridical Sciences, Kolkata)

[1] Parijs and Vanderborght, supra note 2, at 8.

[2] Id., at 102

[3] See Cemlyn Davies, Universal basic income ‘worrying and expensive’ BBC January 29, 2017, available at http://www.bbc.com/news/uk-wales-politics-38770586; John Thornhill and Ralph Atkins, Universal basic income: Money for nothing The Financial times May 26, 2016, available at https://www.ft.com/content/7c7ba87e-229f-11e6-9d4d-c11776a5124d  

[4] Henry Shue, Basic Rights: Subsistence, Affluence and U.S Foreign Policy 16-19 (2nd edn, 1980) (Security rights, subsistence rights, and liberty rights are the three basic’ rights he identifies. The reason he selects these four is because performance of the duties attached with these four rights would allow for the exercise of all other rights as well. In other words, these four rights are fundamental, and enabling rights for the enjoyment of other rights.)

[5] Id., at 34

[6] Ruth Gavison, On the relationship between civil and political rights and social and economic rights, in The Globalisation of Human Rights 32 (2002).

[7]Ministry of Consumer Affairs, Food and Public Distribution, Notification requiring Aadhar for rations, S.O 371(E) (Notified on February 8, 2017)

[8] Shue, supra note 21, at 59-61.

[9] For example, in India, the Equal Remuneration Act, 1976, which states that there must be no wage discrimination on grounds of gender, casts on the state a duty to prevent gender-based wage discrimination in the workplace. Other legislations that protect rights-at-work, such as the Maternity Benefits Act, 1961, and the Employee State Insurance Act, 1948, to name a few, cast on the state a duty to protect, since each of these legislations seek to grant certain qualitative rights to workers within workplaces.

[10] Shue, supra note 21, at [ ]

[11] Tim Rogan, Why Amartya Sen Remains the Century’s Great Critic of Capitalism The Wire March 11, 2018, available at https://thewire.in/economy/amartya-sen-greatest-critic-capitalism

[12] Id.

[13] Id.

[14] Id.

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By Anusha Peri and Ramya Chandrasekhar 

In the first of a two-part post, we look at the threat of automation and its impact on the labour force.

The threat of rapid redundancy of manual and unskilled labour as a result of technological unemployment is imminent, warranting immediate state action.[1] In the current era of artificial intelligence the hitherto unquestioned translation of growth to employment is itself being challenged.[2] Therefore, such a deceleration in employment generation threatens the enjoyment of various facets of a worker’s right to work, particularly of individuals engaged in unskilled and manual labour.[3] Through the course of this paper, the authors seek to prove that increasing automation poses a unique threat to individual right-bearers that traditional human rights jurisprudence, which actively distinguishes between civil political rights and socio-economic rights, cannot address. Therefore, the authors propose that the right to subsistence should be treated as a basic human right, which must warrant provision of a Universal Basic Income (‘UBI’) as the correlative duty.

I. The threat of automation and the changing nature of work

Increased automation and use of highly efficient robots in developed countries reduces the lure of hiring cheap labour from developing countries as robots are considered to be a close substitute for low-skilled workers.[4] This redundancy of low-skilled human capital threatens two-thirds of all jobs.[5] 57% of all jobs in the OECD are threatened due to automation, with developing countries being most prone to this threat.[6] Furthermore, even low skilled labour has undergone a phenomenal change and intermediary platforms that connect providers and users of a service, rope in more and more laborers into the informal sector. For instance, crowd work and work on demand via apps like Uber have become an increasingly common platform for employing and letting go of workers in the current gig-economy. The people working for such platforms have no guaranteed minimum wage or fixed earnings as these forums normally maintain a constant refrain of how the workers are just contract labour or freelance workers who can freely switch between multiple apps.[7] This, in turn, is propelling labour towards a vastly unregulated and informal area.[8] Moreover, the bargaining power that a worker possesses against the employers is reducing as automated hiring and firing policies are usually surrounded by a strong rhetoric of infallible objectivity.[9] Therefore, the unprecedented accelerated pace in technological revolution should not be taken lightly as the governments in the Global South have failed to ‘create’ as many jobs as promised and there is a dangerous rise in unemployment.[10]

We do not argue that the development of systems that automate the repetitive banality of work should be met with resistance; but that human rights discourse needs to develop to buttress this bloom in technology in order to ensure a holistic progress in the quality of life of all. The fourth industrial revolution unlike others demands a commensurate transformation in the lens through which the international community and states view the ethos of ‘work’ itself.

II. Critique of work based conditionality of social security schemes

With the abovementioned bloom in the informal sector, the current social security legislations in most countries are grossly ill-equipped to protect the affected persons. As the ILO notes, “contributory social insurance is linked to employment, either through an explicit link to economic activity as an employee or a self-employed person, or implicitly, on the assumption that contribution capacity equates to a certain level and regularity of income”.[11] Even non-contributory social assistance legislations only regulate workers in the organised sector and disentitle millions of workers that form the backbone of the informal economy.

This illuminates a deeper problem with the traditional conception of work that is glorified in social and political spheres and permeates to legal regulation as well. The deontological argument of having to morally deserve aid by working is heavily flawed and needs to be scrutinized. A simple binary classification of citizens into deserving of aid if they are working or willing to work and undeserving of aid if they are unwilling to work is an unjust categorisation that is wanting of a much-needed deeper analysis of being worthy of aid. A conditional grant of sustenance places the burden of survival of the deprived on the impoverished, as opposed to the state. To aggravate this unjust liability, this burden is often accompanied with a sense of guilt and inadequacy for citizens that do not meet the requirements laid down to receive these benefits. [12] Ironically, this guilt is not shared by the non-working wealthy in a capitalist framework whose money has just been accumulated through centuries.[13]

This exclusion is not restricted to those who do not meet the criteria of receiving State benefits. Iris Young’s conception of oppression through marginalization explains the perpetration of injustice through provision of welfare by depriving them of certain rights and freedoms.[14] Welfare recipients are often socially stigmatized and labeled as undeserving of aid. There is often a constant refrain maintained that welfare recipients are lazy and unwilling to work but are uplifted through public assistance from unjustified distribution of wealth.[15] The traditional approval attached to a working citizen promotes a society where the non-working members are excluded by not granting them any social security benefits and the working members of the impoverished class are also marginalized and stigmatized for receiving benefits. This conundrum is a compelling reason for the State to revisit the significance associated with work in a world where tedious physical labour or routine, cyclical work is rapidly losing necessity and relevance.

We seek to draw a parallel between this fetishisation of work and the Marxist idea of commodity fetishisation – where the value of commodity greatly outweighs the labour of the producer.[16] This idea that the commodity produced is all powerful and can control the agency and purpose of the producer is the main essence of commodity fetishisation.

Fetishisation of the idea of work follows a similar rationale. Socio-legal structures very vehemently entrench the equation between self-worth and work performed by a person. An individual is then forced to work just to feel like she deserves the money she receives forcing her to value work as an all-powerful tool that robs her of her agency and individualistic value. This ties into Iris Young’s explanation of exploitation where she uses the Marxist class divide to prove powerlessness and loss of agency as a form of deprivation.[17]

Policies which have a prerequisite of being employed yet appropriately destitute to be able to avail of its benefits are ineffective if they are not combined with other unconditional schemes. Without unconditional minimum income schemes, it seems that the technological progress that is meant to liberate the working class from routine mundane labour is going to enslave a growing part of the population instead.

In Part II of this two-part post, we discuss how UBI should be made into a basic right and the factors to take into account while doing so.

(This was the winning essay of the 1st JILS Essay Competition, 2018. The authors are recent graduates of the WB National University of Juridical Sciences, Kolkata)

[1] Anil K Antony, More Robots, Fewer Jobs The Hindu April 12, 2017, available at http://www.thehindu.com/opinion/op-ed/more-robots-fewer-jobs/article17930408.ece; David Rotman, The Relentless Pace of Automation Mit Technology Review February 13, 2017, available at https://www.technologyreview.com/s/603465/the-relentless-pace-of-automation/; David Rotman, How Technology is Destroying Jobs Mit Technology Review June 12, 2017, available at https://www.technologyreview.com/s/515926/how-technology-is-destroying-jobs/

[2] Philippe Van Parijs and Yannick Vanderborght , The Instrument of Freedom in Basic Income a Radical Proposal for a free society and a sane economy, 6 ( 2017). See also Dan Shewan, Robots will destroy our jobs – and we’re not ready for it The Gauradian January 11, 2017, available at https://www.theguardian.com/technology/2017/jan/11/robots-jobs-employees-artificial-intelligence;.

[3] Carl Benedikt Frey and Michael Osborne, The Future of Employment: How susceptible are jobs to computerisation? 22 (2013)

[4] United Nations Conference on Trade and Development, Robots and industrialization in developing countries, pg 1, UNCTAD/PRESS/PB/2016/6 (October, 2016), available at http://unctad.org/en/PublicationsLibrary/presspb2016d6_en.pdf

[5] Id., at 1

[6] World Bank, World Bank Development Report 2016: Digital Dividends, pg 52, No. 102725 (2016), available at http://documents.worldbank.org/curated/en/896971468194972881/pdf/102725-PUB-Replacement-PUBLIC.pdf; UN report

[7] International Labour Organisation, Inception Report for the Global Commission on the Future of Work, pg 21 (2017). See also Hannah Jane Parkinson, ‘Sometimes you don’t feel human’ – how the gig economy chews up and spits out millennials The Guardian (October 17, 2017), available at https://www.theguardian.com/business/2017/oct/17/sometimes-you-dont-feel-human-how-the-gig-economy-chews-up-and-spits-out-millennials

[8] Id., ILO at 57. See also Gerald Friedman, Workers without employers: shadow corporations and the rise of the gig economy, 2(2) Review of Keynesian Economics 171, 174 (2014).

[9] Peter Cappelli, We Can Now Automate Hiring. Is that Good? Harvard Business Review (December 12, 2013), available at https://hbr.org/2013/12/we-can-now-automate-hiring-is-that-good; Gideon Mann and Cathy O’Neil, Hiring Algorithms are not neutral The Harvard Business Review (December 9, 2016), available athttps://hbr.org/2016/12/hiring-algorithms-are-not-neutral)

[10] UNCTAD, surpa note 4, at 3. See also Jagriti Gangopadhyay and Wamika Kapur, Unemployment is Up Because ‘Make in India’, Other Official Schemes Aren’t Working The Wire (June, 2017), available at https://thewire.in/146725/unemployment-make-in-india-modi-schemes/ (This piece critiques the ‘Make in India’ scheme, for contributing to the rise in unemployment in India, contrary to the rhetoric espoused by the state surrounding this scheme.)

[11] ILO, supra note 7, at [ ]. Even Contributory ‘social insurance’ legislations in India such as the Employees Provident Funds and Miscellaneous Provisions Act, 1948 and the Employees Social Insurance Act, 1948 only cater to ‘workers’ or ‘employees’ in factories and establishments.

[12] Iris M. Young, Justice and The politics of Difference 918 (1990).

[13] Michael W. Howard, Basic Income, Liberal Neutrality, Socialism, and Work, 63 Review of Social Economy 613, 623 (2005).

[14] Young, supra note 12, at 297.

[15] Alice Fothergill, The Stigma of Charity: Gender, Class, and Disaster Assistance ,44 The Sociological Quarterly 659, 572 (2003).

[16] Anthony Giddens, Capitalism and Modern Social Theory 42 (1998) (He argues that where the producer contributes toward the creation of a commodity but is completely alienated from the final product itself, she feels devalued and inconsequential as the product is monetarily more valuable and she cannot afford to buy it despite having created it.)

[17] Young, supra note 12, at 311.

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By Mihika Poddar and Archismita Raha

In August 2016, the Central government introduced the Transgender Persons (Protection of Rights) Bill, 2016 (‘the Bill’), in Lok Sabha. It aims to provide for a comprehensive framework for the protection of transgender persons, in pursuance of the affirmation of their socio-political rights by the Supreme Court’s NALSA judgement (‘NALSA’). It is currently pending before the Parliament. However, it needs massive revisions in order to be in compliance with both constitutional and international law.

Further, it imperils several of the rights guaranteed by the Supreme Court in NALSA. This path-breaking judgement, despite its flaws, gave legal recognition to transgender persons. It recognised the spectrum of different gender identities, as well as their rights and entitlements as equal citizens.

In this blog, we present an overview of some of the most troubling provisions of the Bill, that undoes much of this progress.

Reinforcing Gender Binaries

NALSA’s expansive definition of the transgender identity allowed individuals to identify outside the male-female binary.  The 2014 version of the Bill also included the internationally accepted definition of transgender, which affirms the right to identify as ‘male’, ‘female’ or ‘transgender’. The Bill however, does not allow for identification as ‘male’ or female’, reinforcing stereotypes about transgender individuals being part man and part woman. It nullifies the SC’s recognition of the right of self-identification and defines a transgender as:

(a) neither wholly female nor wholly male; or

(b) a combination of female or male or

(c) neither female nor male.

Thus, evidently, the Bill defines a transgender through the same lens of binary that queer identities tend to disrupt. Again, the Bill makes it mandatory for every person with non-normative gender identity, including gender queers, to identify as a transgender; thereby negating the claim to protection of any transgender person who identifies as male or female or a gender queer person who does not want to identify as a transgender.

It is suggested that at the very least, the Bill should have used gender inclusive pronouns, instead of male pronouns, as has been used, especially given the subject matter and nature of the law.

Perceived Self-Identification

While the Bill provides for the right to perceived gender identity, it also makes it mandatory for every such transgender person to apply to a District Screening Committee (Section 6), comprising the Chief Medical Officer (CMO), the District Social Welfare Officer, a psychologist or psychiatrist, a representative of the transgender community and an officer of the relevant government. This Committee would conduct an inquiry and ‘certify’ transgender identities for applicants. That a supra-constitutional body would determine the identity of transgender people amounts to a gross violation of human rights and constitutional principles. Involving a CMO for screening also means that the members of the third gender would be subject to arbitrary medical examinations and allied humiliation and that is sanctioned by the state.

The procedure is tedious and unsettles the principle of self-identification. In as much as it may be used for particular ends like channelling entitlement to individuals, making it the sole basis for recognition of the transgender identity. This is in complete contradiction to NALSA.

Further, from an international human rights-based perspective, such procedures are in violation of the right to legal recognition and self-determination under  the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, expanded by the Yogakarta +10 principles.

The underlying principle remains that there cannot be a state entity that will examine a person’s identity, and based on any prescribed procedure, validate or invalidate it.

Minors and the question of autonomy

The Bill makes it mandatory for transgender children to make the application before the screening committee through their parents or guardian. This reflects the lack of understanding on part of the lawmakers as to the lived realities of children with non-normative gender identities. For most children or adolescents convincing their parents and family becomes one of the hardest tasks in the course of transforming/coming out and instances of being denounced by their families are widely known. Interestingly, the fact that the parents of a child with non-normative gender identity may not be supportive of the child has also been envisaged by the drafters of the current bill. This acknowledgment comes through the provision for having institutional care facilities for transgender children who cannot be supported at their homes.

Thus, greater autonomy to minors under the legal framework should be given where minors should also have the right to identify with their perceived gender.

Toothless Protections and Watered Down Rights

The exclusionary definitions and limited scope could still have been pitted against a robust framework of substantive protections and rights. However the Bill’s substantive guarantees are a disappointment. It does not even reaffirm the entitlements recognized by the NALSA judgement.

This Bill, for instance, does not provide specific provisions for transgender health care. The Tiruchi Siva Bill of 2014 mentioned free gender reassignment surgery and allied medical treatment for transgenders.

Moreover, the Bill again falls short in not providing a definition of discrimination; unlike the Tiruchi Siva Bill that defined discrimination as a ‘distinction, exclusion or restriction’ on the basis of gender identity, which had the purpose or effect of impairing or nullifying the enjoyment of fundamental human rights and freedoms on an equal basis. Such a definition would have strengthened the anti-discriminatory provisions by guiding the interpretation of duties not to discriminate.

Without providing for any enforcement mechanisms for anti-discriminatory obligations, it penalises enticing a transgender person to beg. This is in complete ignorance of the prevalent reality that, due to centuries of social exclusion and stereotypes, begging is one of the very few income-generation avenues available to many members of the community.

Further, the Bill does not recognise the right to family or inheritance for transgender persons. A comprehensive protection framework needs to ensure equal marriage, parenting, partnership, custody and inheritance rights as others. This is necessitated by the fact that almost all laws have been framed in a way that deals with a ‘man’ or a ‘woman’, either directly or through terms like ‘son’, ‘daughter’, ‘brother’, ‘wife’ and so on and so forth. This excludes the lived experiences of millions who do not fit squarely in these terms or at least the socially constructed of these terms.

Insufficient Sanctions

The penalty clause in the bill provides that a maximum of two years of imprisonment shall be given to a person who ‘harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse’ (Section 19). Juxtaposing this with provisions of the IPC we arrive at a position where the punishment for sexually abusing a cis woman can even be death but the punishment for sexually abusing a trans woman shall not be more than two years.

This draft of the Bill led to oppositional movements within the country and attracted criticism internationally. An updated draft was supposed to be tabled soon. The Bill has now been sent to the Cabinet for final consideration after an inter-ministerial committee finalised nine amendments in March this year. These amendments are in line with those suggested by the Parliamentary Standing Committee and include a proposed change in the definition of the term ‘transgender’.

While the exact content of the proposed amendments are yet to be made open to public view, we hope that the revised Bill affords substantive rights and protections to transgender persons, replacing the current draft, which is nothing short of a mere political eyewash.

(Mihika Poddar and Archismita Raha are final year students of the WB National University of Juridical Sciences)

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Indian Law BlogsWe are extremely proud to announce to our readers that the JILS Blog has been ranked as one of the Top 40 Indian Law Blogs, published by Feedspot. This list is based on, among others, the quality and consistency of posts, social media presence. The entire list can be accessed here.

We are extremely grateful to our readers for their encouragement and support, without which we couldn’t have reached here. We hope to perform even better this year and achieve many more milestones.

If you have any suggestions for our blog, please do write to us at jils@nujs.edu.

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By Saurabh Bhattacharjee

The announcement of the flagship National Health Protection Scheme [NHPS] by the Finance Minister. Mr Arun Jaitley in his budget speech earlier this week has led to renewed attention on the direction of public healthcare in India. Branded by some as the ‘Modicare’, the scheme promises to provide an insurance cover uptoRs. 5 lakh per family per year for treatment in secondary and tertiary care institutions to around 10 crore poor and vulnerable families. Given that public expenditure on health care in India has traditionally hovered around a paltry 1% of India’s GDP,[1] the announcement of NHPS may signal a new phase of increased public investment in healthcare. Yet, NHPS is not India’s first brush with public health insurance.

The Ministry of Labour launched the RashtriyaSwasthyaBima Yojana (RSBY) in 2008 for Below Poverty Line (BPL) families.[2] In addition, several state-level schemes like the Vajpayee Arogyasri in Karnataka,[3] Rajiv Arogyasri in Andhra Pradesh[4] and Megha Scheme in Meghalaya[5] were started in the last decade. While the Megha scheme is a universal scheme, the RSBY provides an annual insurance cover of Rs. 30,000 for BPL families. NHPS promises to take this tradition of state-funded cashless health insurance scheme for targeted households a notch ahead and scale it up in an unprecedented manner. There has been considerable attention on the fiscal implications of this scheme and how inadequate budgetary outlay undermine the credibility of the scheme.[6] But what does the scheme portend for effective realisation of the human right to health? In so far as right to health constitutes an inalienable human right, there is a fair case to evaluate the proposed scheme against the touchstone of the obligations of the state to further the realisation of the right.

The human right to health has been enshrined in numerous international legal instruments, most notably Article 25.1 of the Universal Declaration of Human Rights[7] and Article 12.1 of the International Covenant on Economic, Social and Cultural Rights,[8] as an inalienable right that inheres in every human being. General Comment No. 14 of the Committee on Economic, Social and Cultural Rights (CESCR) provide us a very comprehensive framework on the normative content of the right.[9] It clarifies that the essential elements of the right to health include availability, accessibility, affordability, acceptability and quality. Examining the contours of the proposed NHPS scheme, as sketchy as they are at this moment, through the lens of these elements of right to health suggests that the scheme may not enhance effective and meaningful access to healthcare. While insufficient financial support may indeed impede the effectiveness of the scheme, it is posited that the core edifice of the NHPS are so fundamentally flawed that it is unlikely to further effective realisation of right to health even with substantial fiscal commitment. Indeed, a model of public healthcare that seeks to privilege insurance for secondary and tertiary care over expansion of public health infrastructure cannot meet the standard of human right to health.

Firstly, NHPS appears to be no different than the RSBY and the other assorted existing cashless public health insurance schemes in its focus on coverage for hospitalisation expenses. As such, these schemes fail to cover even half of the out-of-pocket [OOP] expenditure incurred on healthcare. In fact, a recent study on the effectiveness of the RSBY concluded that 60% of OOP expenditure on healthcare relates to outpatient costs.[10] Insurance coverage that is limited to hospitalisation related expenses therefore, can only have a marginal impact on making healthcare more affordable. Indeed, a Brookings study found that Indian “public health insurance programmes have been ineffective in lowering health expenditures of Indian households.”[11] In view of the fact that health-related expenses is one of the major reasons for households to fall into poverty,[12] the failure to curtail OOP spending is a singular weakness of the existing model of public health insurance.

It must also be noted that General Comment No. 14 of the CESCR states that “health facilities, goods and services must be within safe physical reach for all sections of the population”. Yet, the National Family Health Survey-II (NFHS-II) found that only 13 % of the rural population in India have access to primary health centres and only 9.6% have access to hospitals in rural areas.[13] Another study found that 32 % of the respondents in rural areas had to walk for more than 5 kilometres to seek even OPD treatments.[14] Introduction of an insurance-based model of public healthcare, which is predicated on reimbursement for treatment undertaken in private hospitals, is ill-suited for India. Given that most of the empanelled hospitals are likely to be situated in urban areas, availability of insurance coverage is unlikely to result in meaningful access to healthcare without expansion of public health infrastructure. This is also borne by the insights from capabilities approach as propounded by Professor Amartya Sen, which tell us that mere availability of resources does not on its own result in substantive enjoyment of a basic functioning like healthcare since the conversion of resources into a functioning is variable and deeply contingent on personal heterogeneities and diversities in physical and social environment.[15]

Insurance-driven schemes for public health like NHPS are also likely to undermine the quality of healthcare through the distortions they induce in healthcare.  As Amartya Sen and Jean Dreze wrote in ‘An Uncertain Glory: India and its Contradictions,’ an insurance system focussed on hospitalisation may lead to excessive and unnecessary hospitalisation, especially for diseases, such as diabetes, circulatory problems and cancer, that can be best dealt with by early – pre-hospitalization – treatment.[16] Indeed, there are documented accounts of patients being subjected to unnecessary medical procedures by hospitals under the RSBY scheme.[17]The scope for such unethical practices are particularly aggravated due to the systematic information asymmetry between patients and medical professionals that is pervasive in healthcare sector.

Furthermore, the tilt towards secondary and tertiary healthcare created by such schemes can have a very deleterious impact on health outcomes by shifting scarce public resources away from primary healthcare. The positive relationship between primary healthcare and improved health outcomes have been well-established through studies from different parts of the world.[18] In fact, stronger primary health care systems not only result in better health but also partially counteract the pact of poor economic conditions on health and decrease reliance on hospitalisation and emergency services.[19] As it is, the primary healthcare system in India is severely understaffed and underfunded with a single Primary Health Centre (PHC) being responsible, on average, for more than 30,000 people.[20] Since the announcement of NHPS has not been accompanied by a significant increase in budgetary outlay on health, the scheme is likely to accentuate the shift of resources from primary healthcare to a form of subsidy to private hospitals which the poor shall be compelled to rely on even more. In this context, it is alarming that the share of the National Rural Health Mission (NRHM) in total health expenditure has declined in the last two years.[21]

As such, the NHPS is ill-suited to make healthcare available, accessible and affordable and guarantee effective realisation of the human right to health, for the poor in the country. A decade of experience with RSBY and other state-level schemes like Vajpayee Arogyasree and Rajeev Arogyasreeshould have provided the government sufficient evidence of the inherent limitations of a public health insurance scheme that is limited to coverage for hospitalisation related expenditure. NHPS fails to transcend those limitations and is unlikely to have a transformative effect on enjoyment on the human right to health, even if adequate financial support is provided for the scheme.

(Saurabh Bhattacharjee is an Assistant Professor at the WB National University of Juridical Sciences)

[1]Ministry of Health and Family Welfare, National Health Policy 2017, 5 (2017), available at http://cdsco.nic.in/writereaddata/National-Health-Policy.pdf.

[2]RashtriyaSwasthyaBoma Yojana, About RSBY – The Genesis of RSBY, available at http://www.rsby.gov.in/about_rsby.aspx (last accessed on February 3, 2017)

[3]Centre for Innovation in Public Systems, Vajpayee Arogyasri, Karnataka, available at http://www.cips.org.in/documents/DownloadPDF/downloadpdf.php?id=87&category=Health(last accessed on February 3, 2017).

[4]Aarogyasri Healthcare Trust, Aarogyasri Scheme, available at http://www.aarogyasri.telangana.gov.in/web/guest/aarogyasri-scheme(last accessed on February 3, 2017).

[5]Megha Health Insurance Scheme, http://mhis.nic.in/about-us(last accessed on February 3, 2017).

[6]Aditya Kalra, India’s ‘Modicare’ to Cost about $1.7 billion a year: sources, Reuters, February 2, 2018, available at https://in.reuters.com/article/india-health/indias-modicare-to-cost-about-1-7-billion-a-year-sources-idINKBN1FM0FA; See also Prabhat Patnaik, Budget 2018: Fantabulous Schemes with Not a Paisa Earmarked, Feb.3, 2018, available at http://www.thecitizen.in/index.php/en/NewsDetail/index/2/12913/Budget-2018-Fantabulous-Schemes-With-Not-A-Paisa-Earmarked.

[7]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html.

[8]UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: http://www.refworld.org/docid/3ae6b36c0.html.

[9]UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, available at: http://www.refworld.org/docid/4538838d0.html.

[10]R Shahrawat and KD Rao, Insured Yet Vulnerable: Out of Pocket Payments and India’s Poor, 27 Health Policy Plan 3 (2012).

[11]Shamika Ravi, Rahul Ahluwalia and Sofi Bergkvist, Health and Morbidity in India (2004-2014), Brookings 2016, available at https://www.brookings.edu/wp-content/uploads/2016/12/201612_health-and-morbidity.pdf.

[12]Anirudh Krishna, One Illness Away: How People Become Poor and How They Escape Poverty (2013).

[13] National Family Health Survey, NFHS-2 India: Main Report, 1998-1999 available at http://rchiips.org/nfhs/india2.shtml.

[14] Press Trust of India, Study reveals rural India gets only 1/3rd of hospital beds, The Hindu, July 2013, at http://www.thehindu.com/sci-tech/health/study-reveals-rural-india-gets-only-13rd-of-hospital-beds/article4931844.ece#!.

[15]Amartya Sen, The Idea of Justice 254-255 (2009).

[16]Amartya Sen and Jean Dreze, An Uncertain Glory: India and its Contradictions(2013).

[17]Sulakshana Nandi, Is the National Health Insurance Scheme in Chattisgarh Doing More Damage than Good, November 3, 2017, available at https://thewire.in/193696/national-health-insurance-scheme-chhattisgarh-damage-good/.

[18]Barbara Starfield, Leiyu Shi and James Macinko, Contribution of Primary Care to Health Systems and Health, Milbank Q. 2005 Sep; 83(3): 457–502.

[19]Leiyu Shi, The Impact of Primary Care: A Focused Review, Scientifica, Volume 2012 (2012).

[20]N Devadasan, Of Primary Importance, Indian Express, June 11, 2014, available at http://indianexpress.com/article/opinion/columns/of-primary-importance/

[21]Sourindra Mohan Ghosh and ImranaQadeer, Poor Diagnosis and Wrong Medicine, Indian Express, February 3, 2018.

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By Shivani Kabra and Anirudh Krishnaa

There is no doubt that patriarchy is widely prevalent in society – at home, at work, and even in educational institutions. One always looks towards the pillars of justice, guardians of constitutional values – the courts – for a reprieve from these ordeals. However, patriarchy is so pervasively entrenched in society that it is further reinforced by the judiciary which tends to propagate violence against women.

One such example would be the recent ‘Love Jihad’ case[1] brought before the Kerala High Court. In this case, a Hindu woman, Akhila befriended a Muslim woman named Jaseena. She maintained close contact with Jaseena and her family, subsequently changing her name to Hadiya while converting to Muslim faith. Consequently, Hadiya’s father filed a petition before the Kerala High Court for regaining custody of Hadiya, which was rejected on the grounds that Hadiya, being a major of sound mind, was capable of making her own decisions.[2] A second petition was filed during the pendency of which Hadiya decided to marry Shafin Jahan. The petitioner’s contentions were that a female in her twenties was at a ‘vulnerable age’ and as per ‘Indian tradition’ the custody of an unmarried daughter rested with parents till she was ‘properly married’. The courts further stated that parental authority and control does not cease when the child attains majority.

Such arguments of paternalistic authority have found support in the prior case of Dr. Lal Parameswar vs. Ullas. N.N[3] where a father illegally detained his daughter in his house since she wanted to marry a man her father did not approve of. The court opined that “parents were naturally the proper people for making decisions concerning the future and career of their children, and so they are entitled to control their children, especially if they are daughters, to protect them from the ‘vagaries of adolescence’”.[4] Through such an approach, the Court absolutely ruled out the concept of individual autonomy and agency while denigrating female intellect and maturity.

The aforementioned conclusion was replicated in Hadiya’s case, (Love Jihad case) wherein though the court admitted that questions of faith and religion were matters of personal conviction, not to be interfered with[5], they still declared the marriage a sham and remanded an adult female to the custody of her father. The reasoning postulated was deduced on the ground that she was not a bright student and therefore incapable of taking firm, independent decisions.[6]

This judgment in the ‘Love Jihad Case’ is a reflection of gender actions within the framework of benevolent sexism that regard women as dependant entities incapable of individual autonomy. The court’s ruling that remanded Hadiya into the custody of her father was due to her ‘moderate intellect’, which made her vulnerable to the evils of society. The decisive attitude with which the courts stripped Hadiya of her decisional autonomy and vested the same with her father is the literal and symbolic definition of paternalistic. Not only does this approach take away the decisional agency of an adult woman but it also reinstates its effectiveness in controlling women choices and shaping them into conformity with idealized traditional norms. Such denials of a woman’s’ self-hood is nothing but the vestiges of rescinded practices of covertures, and deliberate infantilisation of females into being considered inept at decision making.[7]

In an alternate case[8] before the courts, three students from Jindal Global Law School blackmailed and engaged in forceful sexual relations with a fellow student. Though they were initially convicted and sent to prison, the Punjab & Haryana High Court recently released the accused students on bail while reviewing the case. According to the court, the incident “was reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.”[9] The court questioned the virtues and attitude of the female student prior to the act and blamed her for the entirety of the incident. On considering the amicable relationship of all the parties prior to the sexual assault, the court felt the incident lacked ‘gut wrenching violence’[10] and was accordingly deemed to be a misunderstood result of ‘casual relationships and adventurism’.[11]

In this context, it is relevant to mention the Delhi High Court decision in the recent Mahmood Farooqui case[12] where the said person was alleged to have sexually assaulted a foreign student. The court accepted the argument that due to prior friendly and sexual interaction between the two parties the accused was incapable of realizing absence of consent despite the numerous times the female student had said no.[13] The underlying assumption was that the female student’s resistance was too feeble for the accused to comprehend and thus would not constitute rape.[14] By doing so, it decried the concept of affirmative consent while interpreting the same on a subjective platform of the perpetrator’s understanding of the same or lack thereof. Significantly, the court inferred that though there was unwillingness in her own mind and heart, the female student had still communicated her consent.

The foregoing judgment of the Haryana High Court too reverberates of an overarching mindset engaged in system justification of traditional roles. The Haryana Court in their judgment released the perpetrators on bail owing to the ‘promiscuous’ personality of the victim and the bright futures’ of the perpetrators. Though a manifestation of the Brock Turner case[15], the court sought to take the philosophy one step forward by engaging in victim blaming and slut shaming – two devices still used by society to condition female behaviour into the mould of a model paragon. Similarly, the Delhi High Court based their judgment in M Farooqi on traditional sexual roles played by both the genders with the male being the dominant and the female, the submissive. While acknowledging gender equality activism in current times, they dubbed the same as confusing for the male intellect in understanding if there is consent (or its lack thereof) or simply a woman exercising her new-found equality activism.[16]

It is pertinent to understand that the underlying reasoning posited in all the foregoing judgments was remnant of a Victorian era paternalistic attitude. The blatantly paternalistic approach employed by the Courts while intended at ‘protecting’ and ‘caring’ for the female gender, is based on the presumption of male superiority, authority and intellect.[17] Thus the subterfuge accepted through these decisions perceives women as incompetent outside her tradition gender role of nurturer and reinstates the gender stereotype of men as protectors.

Besides the obvious disregard of the law, these judgments collectively reinstate structured gender stereotyping with the male as the dominant and the female as the submissive abider of the male’s dictates. By making sexual awareness (‘promiscuity’) of a woman the reason for her sexual assault, one denies her, her sexual agency and make the concept of consent optional; contingent upon the circumstances of the incident[18]. Assertive or self-confident females are considered an anomaly with the prevalent gender roles they are supposed to play, while the enormity of the male ego is made conditional on the number of sexual partners he has had. The dictionary meanings of the terms inter alia promiscuous, slut and wanton too restrict the usage of such nomenclature to the female gender while condescending sexual exploration by them.[19]

This general acceptance of double-standards in gender norms by most men and women unnecessarily valorises male masculinity and stigmatizes femininity to the extent of placing the latter on a subversive panel to the former (in line with the concept of ‘the second gender’)[20]. Remarkably though, it disillusions ‘male-gaze’ of a society that paradoxically looks down upon female sexuality (read ‘slutty behaviour’) while simultaneously desiring sexier females.[21] The echo of the Brock Turner case in the Haryana Court judgment while absolutely disregarding the enormity of the crime further sets a disturbing precedent of a court that accepts sexual assault of promiscuous females by individuals having bright academic and career future.

The irony in the entirety of these incidents is still however the interchangeability of the names of the Courts.

(Anirudh Krishnaa is an Associate Editor and Shivani Kabra is an Editor at the Journal of Indian Law and Society)

[1]Asokan K.M. vs The Superintendent Of Police, WP (Crl.) No. 297 of 2016.

[2]Asokan K.M. vs The Superintendent Of PoliceWP (Crl) No. 25 of 2016.

[3]Lal Parameswar v. Ullas N.N,(2014) 1 KLT 937.

[4]Id. at 8

[5]Supra note 1.

[6]Id. at 75.

[7]Feminist Perspectives on the Self, Stanford Encyclopaedia of philosophy, June 28, 1999, at https://plato.stanford.edu/entries/feminism-self/#BM2

[8]Vikas Garg &Ors. v. State of Punjab & Haryana, Cr.M.No.23962 of 2017.

[9] Id.

[10]Id. at 10.

[11]Id. at 10.

[12]Mahmood Farooqui v. State (Govt. of NCT of Delhi) CRL.A.944/2016.

[13]Id. at 58.

[14] Id. at 59.

[15]Joseph Marguiles, Racism, Classiam, Feminism… and Brock Turner, The Verdict available at https://verdict.justia.com/2016/09/06/racism-classism-feminism-brock-turner

[16]Id. at 85.

[17]Jacqueline Yi, The Role of Benevolent sexism in Gender Inequality, athttp://steinhardt.nyu.edu/appsych/opus/issues/2015/spring/yi

[18] This is further mirrored in the Delhi Court judgment where it was opined that “in acts of passion, actuated by libido, there are myriad circumstances which can surround consent and it may not necessarily always mean yes in case of yes or no in case of no.”

[19]Feona Atwood, Sluts and Riot Grrrls, Vol. 16(3) Journal of Gender Studies, September 19, 2007, http://www.tandfonline.com/doi/full/10.1080/09589230701562921 ; See Jane Mills, Woman words a Vocabulary of Culture and Patriarchal Society, at https://philpapers.org/rec/MILWAV

[20]Simone De Beauvoir, The Second Sex, 1949

[21]Linda LeMoncheck, Loose Women, Lecherous Men: A Feminist Philosophy of sex, 1997

Posted in Law and Sexuality | 1 Comment


By Parva Kaushal Khare and Siddharth Sonkar

On October 11, 2017, in Independent Thought v. Union of India,[1] the Supreme Court held sexual intercourse with a girl below eighteen years of age to be rape, regardless of her marital status.[2] It did so by reading down the Marital Rape Exception.[3] However, the Bench refrained from making any observation towards marital rape of adult women. We find this problematic due to several reasons.

Firstly, there seems to be an absence of an admission that marital rape is violent. Whereas there is a piecemeal acknowledgement of the U.N Secretary General Report[4] which states that marriage is one of the commonly identified forms of violence, there seems to be an absence of an express characterisation of marital rape; of the violent forms that it can take and how rape within the marriage really affects the daily lives of women. At present, there seems to be a degree of normalisation of marital rape in discourse resulting in its conception as something that is not violent; as something which is impossible since it is not possible to rape one’s wife. David Finkelhor, in his article entitled ‘Marital Rape: The Misunderstood Crime’ suggests that even where marital rape exists in legislation, it does not exist in our imagination.[5] The ignorance of the nature of marital rape results in loss of imagery of just what it is. This ignorance stems from the misconception that when a husband compels his wife to engage in sex relations, she suffers relatively little psychological trauma as compared to when she is raped by a stranger. Whereas the husband is perceived as only ‘compelling his wife’ what a stranger does is regarded as rape. In reality, however, marital rape does involve brutality, terror, violence and humiliation, and in many cases enough to rival the most graphic stranger rape. This may be depicted by a few of these experiences:

…[O]ne had been raped at knifepoint by a husband who held her up against the wall and threatened to kill her…one was jumped in the dark by her husband and raped in the anus while slumped over a woodpile…one was gang raped by her husband and his friend both wielding blackjacks after they surprised her alone in a vacant apartment…one had her baby kidnapped by an estranged husband who compelled her to have sex as a condition for returning the child…one had a six centimetre gash ripped in her vagina by a husband who was trying ‘to pull her vagina out’.[6]

The women who experienced these rapes said that they were sexually available whenever their husbands wanted them. However, what drove these men to rape their wives was an ‘intense desire to punish, humiliate, degrade and retaliate against their wives using rape as the vehicle.”[7] Even though this haunting imagery may not include all forms of marital rape, the aforementioned experiences point towards the overwhelming need to humanise discourse surrounding marital rape, since the absence of the reality of the lives of married women from discussion results in normalising its occurrence. The judgement seems to reinforce this absence, highlighting how institutionally entrenched its misconception is.

Secondly, it is quite straightforward to read down the Marital Rape Exception by recognising the distinction between a married and an unmarried female child. However, it is much more complicated to contest the distinction between a married and an unmarried woman, regardless of her age. In case of the former, there is no distinction for the purposes of criminalising aggravated sexual assault under the Protection of Children against Sexual Offences Act, 2012.[8] So holding that the exception classifies unreasonably insofar as it applies to female children for the purposes of criminalising rape is not difficult for the Supreme Court. However, in case of the latter, in order to establish that the classification is unreasonable, the Court will have to admit that there is no rational nexus between this classification (between married & unmarried women) and the object sought to be achieved. The State’s object deciphered by the Supreme Court is admittedly to preserve the sanctity of the institution of marriage. Strangely, while recognizing this object as the basis for classification, the Supreme Court “begs the question as to why in this exception the age has been fixed as 15 years and not 18 years.[9] Does the Court mean that by raising the age threshold to eighteen years, the object becomes a rational one? Does it mean that the classification between married and unmarried females would become reasonable if it operates for women above the age of eighteen? If this is what the Court meant, then it seems to believe in a preconceived justification for marital rape of adult women. While the Supreme Court has ‘refrained from answering this question’, it has not refrained from making these remarks. Resultantly, the question continues to linger.

Thirdly, there is an implicit recognition of the constitutionality of marital rape of adult women. The Supreme Court admitted that the purpose of reading down a law is to make it consonant with the Constitution.[10] Thereafter, it admitted two possibilities:

If the legislature enacts a law which is violative of the fundamental rights of the citizens, is arbitrary and discriminatory, then the Court would be failing in its duty if it does not either strike down the law or read down the law in such a manner that it falls within the four corners of the Constitution.[11]

By reading down the Exception rather than striking it down entirely, there is recognition of its constitutionality in its present form, even if the Court has refrained from answering any questions pertaining to marital rape of adult women. This undermines the challenge to the constitutionality of the Exception as a whole, arguably making it more difficult to challenge the same. This is because the Supreme Court may regard the exception as ‘corrected’ and not feel the need for its further consideration. Such a possibility is relevant, since a group of petitions by inter alia the RIT Foundation and the All India Democratic Women’s Association challenging the marital rape exception in entirety are being heard by the Delhi High Court.[12]

To conclude, the limited conception of marital rape in present-day discourse, both in mainstream media and the highest courtrooms is a serious concern. Deconstructing the conception of marital rape by probing into the actual, social experiences of women who face violence on a regular basis is a prerequisite for adjudicating upon the lives of women from the top of an ivory tower.

(Parva Kaushal Khare is an Associate Editor and Siddharth Sonkar is an Editor at the Journal of Indian Law and Society)

[1]Independent Thought v. Union of India, WP(Civil) No. 382 of 2013 (Supreme Court).

[2]The Wire Staff, Sex with Minor Wife is Rape, Rules Supreme Court, The Wire October 11, 2017, available at https://thewire.in/186490/minor-wife-sex-rape-supreme-court/ (Last visited on November 06, 2017).

[3] Supra note 2, at ¶15; The section now states that marital rape of a girl child not below the age of eighteen years of age does not amount to rape.

[4] Indian Penal Code, Act 45 of 1862, INDIA CODE (1860).

[5] David Finkelhor, “Marital Rape: The Misunderstood Crime” available at http://www.secasa.com.au/assets/Documents/Marital-rape-The-misunderstood-crime.pdf (Last visited on November 06, 2017), 1.

[6]Id., at 2-3.

[7]Id., at 3-4.

[8] Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012), available at http://indiacode.nic.in/amendmentacts2012/The%20Protection%20of%20Children%20From%20Sexual%20Offences%20Act.pdf

[9]Supra note 2, at ¶76.

[10]Supra note 3.

[11]Supra note 2, at ¶59.

[12] Mallory Moench, High Court Questions Centre on Marital Rape: ‘How Do You Justify the Exception?’, The Wire July 19, 2017, available at https://thewire.in/159074/marital-rape-exception-high-court/ (Last visited on November 06, 2017).

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