A Little (Less) Research?

by Vasujith Ram

In paragraph 160 of the judgment striking down the National Judicial Appointments Commission as unconstitutional, Justice Khehar writes:

“A little personal research, resulted in the revelation of the concept of the “legitimate power of reciprocity”, debated by Bertram Raven in his article – “The Bases of Power and the Power/Interaction Model of Interpersonal Influence” […] In addition to having dealt with various psychological reasons which influenced the personality of an individual, reference was also made to the “legitimate power of reciprocity”. It was pointed out, that the reciprocity norm envisaged, that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate.”

The Justice further uses similar psychology based research by scholars Dennis Regan, Robert Cialdini and Laura Little to argue that the ‘favour’ of judicial appointment would induce feelings of ‘reciprocity’ (or loyalty) towards the executive (the person/body involved in the judicial appointment) – and hence it must be ensured that the executive has the least possible nexus with the final appointment of judges.

Here, I do not wish to point out any logical fallacy or an error in legal reasoning. Instead, I would like to highlight the use of social science research by the Supreme Court. The Courts must generally avoid the usage of social science research for two primary reasons – (i) Court are not competent to interpret and apply social science research: the simply do not have the requisite expertise; and (ii) social science research itself is constantly evolving, changing and is not completely reliable. Simply put, it is not a hard science. Recently, when a large team of international experts tried to replicate a 100 experiments published in the top psychology journals, it was found that only 36% of the studies could be replicated with results consistent with the original findings. The study was published in the prestigious Science magazine and led to considerable debate.

The Supreme Court itself has used social science to come to diametrically opposite conclusions on many occasions. In the context of commercial speech, there have been two landmark cases, Hamdard Dawakhana and Tata Press v MTNL. Both cases conceived of a democracy-based justification for free speech, and accordingly ruled on the constitutional protection available for free speech. In the Hamdard Dawakhana case, it was held that commercial speech is not constitutionally protected since it did not further democracy or any democratic ideas. The Supreme Court opined that a restriction of commercial speech was only equivalent to “depriving a trader from commending his wares” (there is contrary enormous literature, however debatable, arguing that economic freedom is useful for political freedom. In Milton Friedman’s magnum opus, Capitalism and Freedom, it is argued that strong dissenting thoughts could be disseminated only in a system with adequate resources – a market economy). On the other hand, in Tata Press v. MTNL, the Court identified advertisements as a cornerstone for a democratic market economy and opined that free flow of commercial information was crucial to a ‘democratic’ economy. It was argued that advertising revenue or subsidy was the ‘lifeblood’ for a democratic press and free media (to borrow the words of Justice Rehnquist from the Virginia State Board of Pharmacy case, the State is being asked to “hew to the teachings of Adam Smith”).

Scholarly opinion is not unanimous with respect to the use of social sciences in judgments. In the United States, ‘fact’ is classified in a twofold manner – as ‘legislative fact’ and ‘adjudicative fact’ (mentioned in Kenneth Davis’ influential article in the Harvard Law Review, ‘An Approach to Problems of Evidence in the Administrative Process’ (1942)). The latter refers to facts that pertain only to the immediate litigation or the respective parties. The former refers to facts which are used to determine broad questions of law or policy by the Courts. The argument has been that Constitutional or Appellate Courts can take ‘judicial notice’ of ‘legislative facts’ by disregarding rules of evidence. Therefore, social science material, which are ‘facts’ in one sense, could be introduced without the need to resort to traditional methods of introducing or settling facts. This theorization was in the backdrop of the introduction of the Brandeis Briefs, where the counsel (Louis Brandeis, who later became a Supreme Court Justice) introduced social science materials to justify a regulation on working hours for females.

Even in India, the issue has been debated before. Seervai famously argued that “The Constitution of India does not enact Mr. Justice Krishna Iyer’s Social Sciences”. According to Seervai, social science data was to be introduced only by way of expert testimony. Prof. Baxi, on the other hand, characterized Seervai’s model as “theoretically underdeveloped” and “misleading”. Seervai adopts the view of the legendary Justice Oliver Wendell Holmes from his decision in the 1905 case of Lochner v State of New York (the Supreme Court of the US struck down labour laws pertaining to limiting the number of working hours for bakers), where Justice Holmes held that the Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statistics”. Prof. Baxi relies on Justice Homes’ famous lecture from 1897, “The Path of the Law”, where he said, “the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV”.

In this blog, Senior Advocate Mr. Raju Ramachandran had opined that social sciences are an “important input” in the adjudicatory process. He however (and importantly) noted that it must be ensured that judges have a “proper and comprehensive” understanding of social science theories. This is particularly crucial since one of our basic premises here is that Courts do not have the requisite expertise to apply social science research.

Admittedly, the use of social science findings or assumptions may be unavoidable in many cases. For instance, cases dealing with socio-economic rights or discrimination as well as constitutional law principles such as narrow tailoring or proportionality usually necessitate the use of social science material.

In light of scholarly disagreement and the inevitability in many cases, a useful policy may be to evolve a doctrine of “social science avoidance”, similar to what is known as the doctrine of “constitutional avoidance” in constitutional law (see the opinion of Justice SK Das in Basheshar Nath v. CIT: “this Court should indeed be rigorous in avoiding to pronounce on constitutional issues where a reasonable alternative exists…”). In the US case of Ashvander v TVA, Justice Brandeis in his concurring opinion laid down several facets of constitutional avoidance. A key rule is that the Court is to decide a case on grounds of constitutional law only if there is no other ground on which the case can be disposed of. In case of social sciences, we may say: unless the case at hand cannot be adjudicated without reference to social science evidence, the Court must avoid recourse to social science research (or social science arguments). Moreover, if at all social science research is used, it must be done in a clear and transparent manner, such that scholars and future courts are able to critique, rebut or counter the findings or assumptions used in the judgment. To his credit, this something that Justice Khehar does in the judgment.

(I thank Upendra Baxi, Gautam Bhatia, Shambo Nandy and Sohini Chatterjee for discussions.)

Conversation with Prof. Tom Ginsburg, Professor and Deputy Dean at the UChicago Law School

Prof. Tom Ginsburg is the Leo Spitz Professor of International Law and Deputy Dean at the University of Chicago Law School as well as a Professor of Political Science at the University. He is a prominent scholar of comparative and international and has authored or edited several books, including Judicial Review in New Democracies: Constitutional Courts in East Asia (2003), The Endurance of National Constitutions (2009), and Comparative Constitutional Law in Asia (2013). He was recently in New Delhi to deliver a lecture at the University of Chicago Center on his upcoming book, Judicial Reputation: A Comparative Theory.

Prof. Ginsburg’s comparative work on judicial councils (i.e., judicial appointments commissions) has been cited by the Supreme Court in the leading opinion striking down the constitutional amendment and the statute instituting the National Judicial Appointments Commission (Supreme Court Advocates-on-Record Association v. Union of India). In an e-mail interview with me [Vasujith Ram], Prof. Ginsburg discussed the collegium and the National Judicial Appointments Commission in the light of his scholarship in the area:

Q: You have analyzed judicial councils from the perspective of law and economics, based on principal-agent theory. How would you analyze India’s collegium system of judicial appointments?

A: Judges, ultimately, are agents of society, and so should serve the public interest.  The question is how to set up a system of judicial appointments that would maximize that possibility.  The collegium system is the paradigm example of a self-appointing mechanism for judicial appointments, and so if one believes that existing judges are the highest guardians of the public interest, it is a good system.  The alternative is a system that reflect inputs from other actors, such as politicians who are also representatives of the public. Which system is better comes to down to one’s relative trust in judges as opposed to other possible appointers.

Even if one trusts the judges, there are risks that are inherent to a self-appointing senior judiciary.  The main risk is that they will not reflect changes in the society, in terms of preferences about justice or in terms of changing demographics.  The system requires that judges pay special attention to make sure they are reflecting the society, and not just appointing people who think and look just like themselves.  This would lead to a gap between the legal system and the underlying society it governs.

Q: How would you compare the (now held to be ultra vires) National Judicial Appointments Commission (NJAC) and the collegium system of appointments?

A: The NJAC would have replaced the collegium system by introducing inputs from outside the judiciary: the Law Minister and eminent persons to be appointed through a political process.  While this system was held unconstitutional in India, other countries have systems that are similar to the proposed NJAC.  This fact does not bear on the constitutionality of the arrangement, but does suggest that it might be practicable to have a different system.  Obviously the NJAC would have introduced moderate limits on the ability of the judges to control the appointment process.

Q: In your study, you find little relationship between the existence of judicial councils (or merit plans) and judicial quality. Could you elaborate? This is in light of Justice Khehar’s observation: “Judicial Commissions/ Councils created in different countries were, in their [Garoupa & Ginsburg’s] view, measures to enhance judicial independence, and to minimize political influence. It was their view that once given independence, Judges were more useful for resolving a wider range of more important disputes, which were considered essential, given the fact that more and more tasks were now being assigned to the judiciary.”

A: Yes, our study argues that, even in theory, there is no necessary relationship between judicial councils and judicial independence.  Sometimes councils are implemented to enhance independence but other times they are not implemented to reduce it and increase accountability.  We do not actually directly study the issue of judicial quality, which is of course quite difficult to measure. It is quite possible in some circumstances that greater accountability will result in an increase in judicial quality—it all depends on the particular situation of the judiciary in a given country.

Q: While the NJAC judgment notes your descriptive point that there is a growing scholarly consensus that judicial appointments ought to be insulated from partisan politics, it ignores your analytical point that this consensus is theoretical and not based on systematic evidence. In the judgment it is held, with the apparent support of your article, that the presence of the Law Minister on the NJAC is a retrograde step since the diminishing role of the executive in appointments is an “obvious reality”. What are your thoughts?

A: As a positive matter, it is not surprising that we see pressure on an activist, self-appointing judiciary to take into account a broader set of perspectives than it traditionally has. Because the judiciary matters in India, in the sense of being an important institution in constitutional government, there will be pressures from rising political forces like the BJP to have a say in the appointment process. This kind of pressure does not necessarily reduce judicial independence or quality, as I said above.  But whether it is a good thing in the particular context of India is a different matter.  It would depend on a diagnosis of the current situation of the judiciary and the quality of the proposal, which of course would require extensive study.

Q: The judgment also seems to have overlooked your findings about the need for independence even within the judicial hierarchy. With support from case studies like that of Singapore, you point out that Senior Judges may exercise considerable influence, creating institutional pressure on lower court judges. How pervasive is this problem? Is it something that ought to have been considered by the Bench hearing the case on the constitutionality of the NJAC?

A: Frankly, I think there is a problem in India that there is insufficient attention to the lower courts.  While the High Courts are directly implicated by the collegium system, in that judges and potential judges need to be known by those who will serve in the collegium, this network does not (in my limited understanding) extend to the lower levels of the judiciary.  It would be good if the country’s trial judges were more dependent on their superiors in the judiciary I think.

Q: Compared to the collegium system, how useful do you think the NJAC may have been in ensuring adequate diversity on the Bench? The collegium has been long criticized as being a modern clique.

A: Judicial appointments commissions often have a role in diversifying the judiciary, and it is important for the reputation and legitimacy of the judiciary as a whole that it reflect, broadly speaking, the diversity of the country. The Judicial Service Commission in South Africa, for example, was set up under the post-apartheid constitution to transform the judiciary, and it has done a decent job of making the judiciary more representative in terms of race and gender. In the UK, too, the judicial appointments system has been overhauled to try to ensure more women and minorities.  We don’t know how well the NJAC would have done, but I can imagine it may have been helpful in this regard.

Q: The NJAC comprised of the 3 senior most judges, the law minister and two ‘eminent persons’ (not necessarily ones with a legal background). What is your comment on this composition? Are there other instances where persons from non-legal background form part of the Judicial Councils? How have they fared?

A: It is not uncommon to include non-lawyers on judicial councils; one can think of such persons as members of the ultimate beneficiary of the judiciary, the general public.  They may be helpful in demanding more diversity, or coming up with ideas for judicial management, and they can also help to ensure that the judicial council does not itself become captured by either the judiciary or the government. On the other hand it is often difficult for non lawyers to understand the details of judging and what it requires. Judging is a really technical enterprise, and one almost needs to be a judge to evaluate how well a judge is doing.

Another thing is that the NJAC proposed that the eminent persons would be selected by politicians, including members of the majority and opposition. This is an interesting and important idea for helping to protect against the NJAC simply being used to pressure the judiciary.

The bottom line is that the NJAC was an interesting innovation and we will never know how it would have worked.  I wonder if it would have solved all the problems that its proponents identified; at the same time there are other major problems in the Indian judiciary that would have been unaddressed.  The biggest one, it seems to me, is judicial administration. The Supreme Court is so busy with its massive docket it can devote little time to improving the performance of the lower courts.  Some judicial councils have a role in this regard, but there are other solutions too. I look forward to watching the drama of the Indian judiciary play out in future years.

(Special thanks to Avani Chokshi and Mansi Binjrajka for assistance in conducting this interview)

Image courtesy: here.

One Rank, One Pension: Not a Pandora’s Box

by Varun Srivastava

The demand for One Rank, One Pension (OROP) has existed in various forms since 1973, when the policy was terminated by an order subsequent to the 3rd Central Pay Commission. In a significant ruling, the Supreme Court has held in D.S. Nakara & others v. Union of India that “pension is not a bounty nor a matter of grace depending upon the sweet will of the employer. It is not an ex-gratia payment, but a payment for past services rendered”[1]. In taking from the essence of this judgment, the demand for OROP is a legitimate one for just payment for services that veterans have already rendered. The implementation of OROP was also recommended in 2011 by the Koshiyari Committee set by the Rajya Sabha to review the matter.

While the demand has existed for a long time, protests in the past year became increasingly vocal and vehement given that the present Government had made OROP a poll promise. In August 2015, veterans in New Delhi and across the nation were protesting against the government. They organised rallies and many went on a hunger strike with the objective of securing one pension for one rank. In February 2015, the Supreme Court had ordered the Government to enforce OROP at the earliest possible instance. However, there was a marked reluctance on the part of the Government to implement OROP. Perhaps because it came to terms with the additional 8,000-10,000 crores of financial burden which would be incurred due to revised salaries. The Government finally announced its OROP policy on 5^th September, 2015. Though the veterans are still not satisfied with the announcement, with disagreements on various technical grounds such as the frequency of pension revisions, the fact remains that OROP for armed forces has been accepted in principle.

OROP requires that all retired defence personnel of the same rank with the same length of service should receive the same pension in any particular year, irrespective of their date of retirement. So, the pension received by a Jawan who retired with 15 years of service in the year 2000, should be the same as that received by a Jawan who retires today with 15 years of service. This should also ensure that no personnel of a senior rank are paid less than personnel of a junior rank. This principle was accepted by the Supreme Court and it was held that the Government should work on a pension scheme which incorporates this principle. (Union of India and another v. Major General SPS Vains (Retd.) and others)

Any fears, such as expressed by the Finance Minister that implementing OROP for the armed forces might trigger the demand for OROP for other services, are completely baseless. The recent demand for OROP by the Indian Railways’ employees should also be rejected. Granting OROP to the armed forces cannot be equated to opening a Pandora’s Box of similar policies for other government employees. The armed forces form a class of their own, and hence, a demand for OROP by other services would not stand as equality must exist among equals only (Air India v. Nargesh Meerza & Others). Even if the test of arbitrariness (I R Coelho v. State of Tamil Nadu) is applied, granting OROP only for the armed forces still stands, due to the justifications discussed below.

There is a vast difference between civilian employment and defence employment. Not only are the service conditions and regimented life of defence personnel much harsher but the length of their service is also determined by their rank. In civilian service, the retirement age is fixed at 60 years. At similar levels of seniority, the pay is higher for civil servants than in the armed forces, and promotions are faster. Even the Central Armed Paramilitary Forces (CAPFs), whose service conditions may be similarly harsh, have the benefit of a retirement age fixed at 60 years. Whether an employee is a Havildar in the CAPFs or a senior officer, the retirement age remains the same.

The retirement policy of other services should be contrasted with the Armed Forces wherein most non-commissioned soldiers retire between 35-47 years of age. Most personnel are the enlisted Jawans who retire at around 40 when their family and personal responsibilities peak. Post such retirement, they have poor employment prospects because their absorption into the paramilitary forces or other government employments becomes difficult due to bureaucratic hurdles. Their skills find little relevance in private sector employment. Thus, compulsory early retirement seriously affects the Jawans. Even officers are disadvantaged as compared to their civilian counterparts. Officers are promoted automatically till the rank of Colonel, at which stage (54-56 years) most have to retire with very few being promoted further. Thus, it is more difficult in the armed forces to reach senior positions than in other civil services. This is due to the highly pyramidal command structure and the need for a young force. This coupled with the harsh and regimented life of defence personnel results in the association of higher rank with higher prestige. Therefore, it is unjust to have older senior officers being paid a lower pension than a younger and junior officer. This principle was accepted by the Apex Court as well in the Major General SPS Vains case.

Even after retirement, officers of the Armed Forces are allowed to continue using their rank as a title according to a circular issued by the Ministry of Defence. Even Article 18 of the Constitution provides that the State can confer military titles. It is said that an officer may retire, but his rank does not retire. This means that even after retirement, the officers continue to use their rank and the privileges associated with it. This is not true for other central government employees who do not retain their designations after retirement. Therefore, the principle that it is unjust to pay older high-ranking officers a lower pension than a younger and lower-ranking officer cannot be made applicable to other services as there is no distinction on the basis of ranks once civilian employees retire. While it may be argued that judges of the Supreme Court and the High Courts too continue using the prefix ‘Justice’ after retirement, all judges have the same retirement age, whereas officers of different ranks retire at different ages. Thus for judges there is no question of senior or junior ranks as all high court judges on retirement have the same level of seniority.

It is worth noting that according to Section 47 of the Disability Act, no government employee can be discharged on the grounds of disability, regardless of how it may have been caused. However, in the armed forces, physical fitness is of primary importance and any disability may result in discharge even when caused in the line of duty. This further creates a distinction in the terms of service for civilian employees and armed forces.

It should be noted that the National Pension System (NPS) passed in 2013, even as envisioned in The Pension Fund Regulatory and Development Authority Act, is not mandatory for defence personnel. The most plausible reason again is their variable and early retirement age. The NPS moves the pension system of Central Government from a ‘defined benefit’ scheme to a ‘defined contribution’ scheme with the employees contributing 10% of their pay towards the fund which is matched by a contribution from the government. This goes on till 60 years of age which is the retirement age for most Central Government jobs. The return on this corpus, coupled with the corpus itself, provides the pension. Since defence personnel retire much earlier, their contribution is insufficient to create the requisite corpus that could provide a significant pension. Thus, this scheme is not attractive for defence personnel. They are further disadvantaged in terms of pension as compared to other government employees.

The demand for OROP by the armed forces has been around for more than 40 years. Given the various court rulings, the election promise made by the present government and the increasing impatience of the veterans in securing their demand, OROP has finally been accepted in principle. While there are differences regarding technicalities, they will hopefully be ironed out as it has been proposed that a judicial commission be set up to ensure the smooth implementation of the policy. However, as it has been shown, the armed forces are unique as employment with them cannot be equated to employment with any other central service, be it the civil service or paramilitary service. The terms of their service and retirement are both harsh and incomparable in nature. Therefore, the granting of OROP to the armed forces is completely justified. Any fears that similar policies will have to be framed for other central services should be set aside as there are constitutional, factual and logical justifications for such differential treatment.

(Varun Srivastava is an Associate Editor at the Journal of Indian Law and Society)

[1] D.S. Nakara & others v. Union Of India, 1983 AIR 130.

Conversation with Suchitra Vijayan, Barrister-at-Law, Political Analyst and Writer

Suchitra Vijayan is a writer, lawyer and a political theorist. She studied Law, Political Science and International relations, and was trained as a Barrister-at-Law.

She previously worked for the UN war crimes tribunal for Yugoslavia and Rwanda. She co-founded and was the Legal Director of Resettlement Legal Aid Project, Cairo that gives legal aid for Iraqi Refugees.

As a graduate student at Yale, she spent two years researching and documenting stories along the contentious Durand Line. She was embedded with the ISAF forces – 172 infantry brigade, in Paktika Province, Afghanistan conducting research on key kinetic terrains in the Afghanistan-Pakistan border. Since graduating from Yale she has been working on her first book about India’s Borders.

She regularly writes about war, conflict, politics, literature and photography and her work looks at theories of violence, war and human nature. She is a columnist at Warscapes, and writes regularly for The Hindu. Her long form essays, reviews and photo essays have appeared in Foreign Policy, Huffington Post, Himal South Asian, Africa is a Country, and The Sunday Guardian. She kindly agreed to have a chat with me [Avani Chokshi, Editor]. Following are the excerpts from the interview.

Q: Can you tell us about the insights you gained while working on the study pertaining to the Durand line and your interaction with ISAF forces in Afghanistan?

A: I started researching Afghanistan as a graduate student. I had always wanted to go to the Durand line (which is the Afghanistan-Pakistan border) because I was studying insurgency in these border areas. I was embedded with the US ISAF Forces in the 172^nd Infantry in an outpost in the Paktika province. Initially, my thesis and research work was to look into why the counter-insurgency strategies had failed in these areas in spite of the amount of money spent there. I realised that my theoretical hypothesis was very different from what was actually happening. Even counter-insurgency strategies require a certain understanding of history and politics. I discovered that the way the local population had conceived itself was completely different from what the official documents contained. There can be no single format for the local population to understand or represent themselves. People’s ideas of history and family are very local; they tend to vary depending on who and where one is. Knowing that there can be no way to win in a counter-insurgency strategy when no one in the Afghan state has any idea how the people imagine themselves was, for me, the most fascinating aspect. One of the reasons for this disconnect is that the Afghanistan government has never acknowledged the Durand Line. Also, the Pashtun tribes and ethnic groups see themselves within this space very differently; they have never respected the Durand line. Going back to how Mortimer Durand derived the line, it appears that there was no actual border marker. He basically just stated that certain land would be Afghanistan, and other land would be British India. There are no signifying markers to clearly define this boundary.

This basic idea of the disconnect between how people imagine themselves to be and how the State imagines them to be became the basis of not only my studies on the Afghanistan-Pakistan border but also for my Borderlands Project. This history is often subsumed within the much larger context of politics and is never really written about.

Q: Some believe that bodies like UN war crimes tribunals are futile exercises that achieve very little. From your personal experience of working with them, do you think such tribunals can help ‘right the wrongs of history’ so to speak? Do you think an alternative framework might provide a more effective remedy?

A: It is my belief that the tribunals have been marginally effective. For instance, the tribunal in Rwanda handed the World’s First Genocide Conviction in the world. It convicted Jean-Paul Akayesu, mayor of Taba township for nine counts of genocide, crimes against humanity, and rape. A larger understanding of genocide exists because of the judgments given by the tribunal. But having said that, their effect is very marginal, because I believe that eventually there is no justice. My experiences with people in Yugoslavia and Bosnia, and with the war crimes tribunal showed me that the people do not believe that justice has been served. Their sense of justice is absolutely different from how an international convention views justice. Most war criminals are still out. Take the case of a person living in a village, whose neighbour killed her family and is now back in the same community; a body like the International War Crimes Tribunal cannot do much for her. In places like Bosnia, Serbia and Rwanda, people have a deep sense of distrust for these tribunals. They do not believe they have been served justice, which means the tribunals have not fulfilled their purpose. Where there is some sense of justice, we allow society to heal in some way and move on. Tribunals actually entrench trauma and violence and are therefore  remain ineffective.

Of course there has to be an alternative framework, because today’s system is not working. This must start with an understanding of communities. Some communities understand justice very differently from other communities. For example, the war crimes tribunal for Yugoslavia is in the Hague – very far away from Yugoslavia. The tribunal for Rwanda is in Arusha, Tanzania. There are the local Gacaca courts, but eventually the communities have to deal with it on their own. We need to have a much larger effort to ground these kinds of justice mechanisms within the community, which means that the local legislations must have some way to address this. The method of establishing any justice mechanism must depend on the circumstances because the problem with the international community and international justice is that outsiders are often given absolute control over how a local community has to survive and heal. Local communities through the local political leadership have to come together and make these decisions; it is not an outsider’s place to do this.

It is very important for us to actually decolonize ourselves from the idea that somehow there is an international form of justice – there isn’t. Our forms of justice have become highly neo-liberal. Looking at the number of people who have been indicted by the ICC one can see that there have been a disproportionate amount of African leaders on that list, but no Henry Kissinger. The problem is that the neo-liberal order punishes one kind of genocide and not the others. Even today the Armenian genocide is not termed genocide; it is very contentious. For a long time, the Clinton administration refused to call the Rwandan genocide as genocide. To believe that the international community or the international humanitarian law can actually serve justice to these local communities is highly problematic and it is something that has to be interrogated not just from people in Washington DC or Paris or Rome but from small places within Rwanda or Bosnia or Herzegovina. That is where I think an alternative mechanism has to come from and it depends on the idea that the international convention is highly problematic. When the Nuremberg trials were coming up, we were told that the crime of Holocaust was so heinous that we had to invent a new crime. I think that we have to invent new legislations for finding justice locally. I do not think that the international conventions are actually helpful or will help in the future given the position they have taken.

Q: Can you tell us more about the Resettlement Legal Aid Project, Cairo and how you came up with it?

A: I co-founded this Project with Barbara Harrell-Bond, a professor at Oxford who had also founded the Refugee Studies Department at the American University, Cairo and Jeffery Hancuff (who is now an economist and a Buddhist Monk). This was in 2008 when the number of Iraqi refugees coming into Cairo had increased. Barbara had already founded AMERA, another refugee legal aid organisation in Cairo. However, we were not sure if AMERA would continue to be able to accommodate Iraqi refugees. This was because in Egypt, while one can apply for a license to start an NGO, the authorities can shut it down anytime during the pendency of the application. Egypt has been in a state of emergency for the last 25 years. We wanted to start another NGO so that if AMERA was shut down, its work could continue. There were close to 5000 or more Iraqi families who were refugees in Egypt and required legal aid and resettlement. The Project started because there was no other space that could meet their legal needs. RLAP was started out of Barbara’s apartment in Garden city Cairo. After the first few weeks, we got a small space within a St. Andrews Refugee Services.

Q: As the founder of the NGO ‘Lines of Grey’, can you tell us about the significance of its name and the nature of work it undertakes?

Lines of Grey is an NGO only because it needed funds. It started in Arusha when I was working for the war crimes tribunal. There was a shelter for street children near by and I used to go there all the time. I wanted to teach those children photography. It started with me just taking my own money and buying these children cameras so that they could take photographs. I was just 23 years old and I had no idea about running an NGO. I do not know what the kids got out of it but I really got a lot out of it by seeing how these kids look at images visually. A lot of them had never seen themselves; they had never seen a mirror. A lot of them started taking self-portraits and that was their photograph. It was their photographic archive. Maybe if I did it now I would have done it very differently. I simply wanted to spend some time with these children and teach them. When I moved to Cairo, I did some of this with the refugee kids I was working with there. It was an opportunity for me to engage with the local community. I am a photographer; and I love to teach and children are a great way to understand the society and the community. So, Lines of Grey was less of an NGO and more of a personal experiment, which at some point in time, I did not have money to run. Giving it NGO status meant that friends could contribute, or give cameras, for it. I was able to continue till I was in Cairo but after that I could not because I had to start graduate school and since then I actually have not lived in any single place for a long time. Again I am not sure what the kids got out of it, but for me it was absolutely fascinating.

Q: Moving on to your Borderlands Project, What are the objectives you want to achieve? What have been your findings on the effects of borders on human life?

A: I started the Project because my work in Afghanistan had been fascinating, and I wanted to see how India stood up to the same kind of interrogation. I have increasingly found that India is not a state. It is a culmination of many nationalities, some of which do not prefer to be a part of India and some of which have been given ideas of what India means. In relation to this Indian imagination, it is beyond the historical narrative, it is beyond Gandhi, beyond Nehru, its beyond sensibilities of nationalist history making. Huge parts of our population, especially border population, do not imagine themselves as quite Indian because a lot of them have seen the brunt of not just violence but legal trauma and other things, and that is the reality of it. They do not imagine themselves to be Indian the way you and I imagine ourselves to be Indian, because you and I have a very different sense of belonging to the Indian Nation State. We have denied them citizenship, we deny them their rights, and the fact that they have their own right of self-determination is something that is never talked about. Talking about it is treason. Those are things that new generations of Indians should understand to interrogate. They should be given the opportunity to understand what India means – is India truly democratic and secular? If we are truly democratic and secular, would we keep many populations under the subjugation that we are keeping them in, whether it is through the AFSPA and other things or PSA in Kashmir, or anything else? Forget the border, just go to Naxalbari and Dantewada, and see what we are doing to our own people, our own subjects that we may so call, forget others who do not consider themselves a part of the Indian union whether in political imagination or social imagination. It is time; India has been independent for long enough and we are no longer a young democracy. We should be mature enough to come to terms with the idea of state formation and nation and national formation. If in some ways, my book is an attempt to opens up that space, I do not think that it will be a large one, simply because the trajectory that India is taking today is becoming deeply majoritarian. People refuse to even listen to others’ arguments; one only has to go to Twitter to understand how insensitive and majoritarian we have become. Perhaps with this book, this idea will open up a little space for people to think that there is a world beyond us, beyond this educated English speaking middle class that sees India as India Rising. I think that is the value of the book. If not, I had a jolly good time for the last three years. I have seen and done things, and made friends and did things that most people in their lives cannot dream of and I think that is enough.

Q: You have previously spoken about the India-Bangladesh Border, and the differences in the dynamics of social organisation in a village right on the border, and in one 20 miles from it towards India. Can you explain what sort of these differences actually are?

A: The villages on the border are obviously going to be in a lot more trouble and are going to be a lot more contentious as against one, which is 20 miles away. This is like trying to make a difference between Gaza and Ramallah. Both Gaza and Ramallah are in occupied territories, but obviously in Ramallah, things are slightly better. In communities that live in bordered porous territories, somebody very close to the borders has seen much larger wrath of the Governments. They have to deal with negotiating not just the militarisation and securitisation but even identity, because their family might live two miles from them, but across the border, which they have to cross all the time. Maybe somebody who lives 20 miles away might feel safer, due to slightly lesser militarisation or border fencing. But eventually these places are getting highly militarised. In India, the rhetoric is that a few million Bangladeshis are coming in every year but again we have no idea what the real data is. India is increasingly spending money on fencing and militarising these borders. Militarisation and fencing come with their own set of problems and I think social organisation is then completely based on what rights exist within the small and enclosed space. While I believe that life is definitely harder for one on the border, everything must be seen in the much larger context of militarisation.

Q: You have talked about your visit to Arunachal Pradesh for the Borderlands Projects, and you have noted that it is now becoming highly militarised. In light of this, what are your views on the India-China relationship?

A: This is a very contentious territory. How India views its history with China is very different from how China views its history with India. India sees 1962 as a key pact of the trail whereas China sees it as simply asserting what it feels is its own. So, it is very hard for two countries to come to an actual agreement when both see the histories very differently. Having said that, I think both sides committed a lot of blunders in the early years – India’s policies were ushering in things early on and China’s act of aggression (not that India has not been aggressive- it has). India’s policy has a long history of taking itself as a righteous victim and that is the reason today we feel this need to prove ourselves and these are all equally problematic. Look at China’s policy; they are highly territorial. China has acquired large parts of Central Asia simply by negotiation. What was then part of Russian territory or Central Asia is now China’s because China has done a very good post territorial acquisition because it has taken its time. It has stretched its arguments over and over. With Arunachal Pradesh (and Aksai Chin and parts of Kashmir which are also in contention), both countries will continue to militarise without actually asking the local population what they want. China will not ask what Tibetans want and India will not ask what the people in Kashmir or Arunachal Pradesh want. This is the problem which has never been discussed in the ambit of foreign policy because we do not consider the local population themselves to be active participants in foreign policy. This, to me, is highly problematic. Why are the wants of the local population completely left out of the discourse? This is never asked and its answer will affect how the military can, or does, mobilise in these areas. I think the question itself is very contentious because it takes out the people from the equation.

Q: You have previously spoken about repression and resistance in Kashmir. As a political theorist having an experience of ground realities as well as exercises in political manoeuvring, do you think that allowing self-determination of the Kashmiri people is the best way forward?

A: Absolutely! The only way forward is to recognise Kashmiris right to self-determination. I have made this position absolutely clear. There are only two positions one can take. The first position is that the Kashmiri population has historically (by historically I mean, going back 200 years) been denied both the historical agency of a right to rule themselves. They have been denied freedom and they have been sold as slaves, literally sold as slaves, from the British to the Dogra kings and to others and they have not had the right to self-determination since then. The Indian state is only a new form of the manifestation in terms of oppression. With this position, one believes this population has the right to freedom and self-determination. By freedom, I do not mean cultural freedom or freedom within the Indian Union. They have their own right to self-determination, independence and an independent state. How they conceive of that state, whether it is with India, without India, with Pakistan, without Pakistan, is their choice. That is their absolute right. The other position is the opposite position; it is that these people do not have this right and I do not take this position. There is no grey in the Kashmir issue or the Palestinian issue. One either believes that there is a group of people who have been deprived rights and they have the right to have that right and demand and fight for that right or one does not believe that.

Another thing that I find problematic is that even the very small section in India that supports self-determination for the Kashmiri population often somehow feels that it has the right to tell them what they should do and how they should do it. Our only job is to stand in solidarity. How they conceive of themselves is absolutely for them. How they imagine themselves as a nation, how they imagine themselves as a State, and if they imagine themselves as a State, whether their allegiances lie with Pakistan, whether it does not lie with Pakistan, whether it lies with us, whether it lies with someone else, that is absolutely their prerogative, and not ours. That is the position I have always been clear on and that is the only position I can take. Any other position for me is the very status position and it is absolutely an act of occupation and that is what India does. India occupies these places. Eventually it is going to degrade us and it has degraded us to a large extent. This is my answer and this is where I stand. Young India should be more vocal about this position, as well, if they believe in it because people who take the other side seem to be a lot louder.

Q: You have been extremely vocal about the constant literary censorship carried out by politically backed Hindu activists and caste groups. Do you think it is time that the Supreme Court took up this issue in light of the obvious fundamental rights violations that underlay such actions? Do you think that such a judgment would bring any real change?

A: I think the problem goes back to an origin. When Jinnah says, Muslims need parity and not partition, we did not agree with that. Yet, when Ambedkar himself later disagreed with one idea, then we were ready to bring identity and communal politics into our Constitution. Today, our Constitution has become a communal and identity based policy. The question is how do we get ourselves out of this colossal mess? The change has to be constitutional. That is, perhaps, the only way that this country can move forward. My stance does not rise out of any great faith in the Indian Constitution – I am increasingly beginning to think that our judges are puppeteers to a much larger cause. Even if we believe that the constitution is the way forward, how do we go forward? How do we make opportunities equally accessible to the most downtrodden of our country’s people and at the same time not turn it into communal casteist politics? I think the Supreme Court must intervene and should intervene because our Constitution is perhaps the only defence we have. If we believe the ideas of constitutional morality exist then it has to be the vanguard of defending those rights. But how do we go forward? I have absolutely no idea.

We have politicised and communalised our constitution, and made it completely caste-based, from the Shah Bano judgment to the judgments on extending reservations over and over. I am not a person against reservation; I am against the way reservation has been implemented politically. The idea of reservation has to be re-thought and it has to be rethought with better census figures, better figures from the creamy layer. This is not just a legal act, this is an anthropological act, this has to be a political act, this has to be a historical act in which people acknowledge where they have come forward, how far they have come and how far they have not come. All of this has to happen in tandem and that will not happen in our country simply because there are too many vested interests within the political establishment which exercises a disproportionate amount of control over our constitutional bench. If anyone today tells me that our constitution bench is not politically influenced, I will not believe it. I look at it and it is absolutely appalling. Ambedkar said that he does not trust these men to be the silent guardians of our constitution because very few of them have the kind of intellectual or the moral dignity or courage to take it forward. We are in a political mess and I have thought about it for the last 20 years of my life and I really do not know what the way forward is. But it has to be one that is done in tandem. We need to understand how caste has evolved, we need to have a better anthropological, sociological understanding of caste based incentives. We need to understand how caste based incentives affect political participation, we need to understand how political parties mobilise because of this and then we have to systematically dismantle every single one of these incentives that makes this current situation inviolable. That is the way to go forward and it will take time. Like the Civil Rights Movement, these things take generations. But who will make the start, I have no idea. I look around and I feel there is just no one to do that, intellectually or politically. I am sorry I have given more of a rant than a solution.

(Special thanks to Mansi Binjrajka (Associate Editor), Amrita Ghosh (Research Assistant), Shreya Mishra (Research Assistant), and Tejas Popat (Research Assistant) for their assistance in conducting and transcribing this interview)

Image courtesy here

Nepal’s Constitutional Crisis

by Mara Malagodi

Nepali legislators are currently striving to promulgate the country’s seventh constitution and conclude the peace process that began in 2006 after the ten-year long Maoist People’s War. By 2001 a new constitution drafted ‘by the people’s elected representatives’ had become the Maoists’ key demand and the precondition to bring the insurgents to the negotiating table. Since 2006, radical constitutional change was deemed as the primary vehicle for state restructuring and the pillar of the peace process’ mantra of ‘nayā Nepāl banāune’ (building new Nepal). The new constitution was expected to secure by institutional means the inclusion of the country’s many marginalized groups (janajati, dalit, Madhesi, women, LGBTI, religious minorities) and further the process of democratization of the Nepali state. Almost a decade has passed, two Constituent Assemblies have been elected, and countless protests have taken place over the contents of the new dispensation, but little progress has been so far achieved in terms of significant institutional change. While the promulgation of Nepal’s new constitution seems now to be in sight, the draft tabled for approval in the Constituent Assembly on 23 August 2015 has drawn sharp criticism over many of its features, which have been deemed undemocratic and exclusionary, and has engendered violent protests with increasing numbers of casualties.

The devastating earthquakes that hit Nepal in April and May 2015 briefly obfuscated the political tensions over federal restructuring and institutional recognition that had brought the first Constituent Assembly (CA1) to collapse in May 2012 and the constitution drafting process in the second Assembly (CA2) to a standstill. Nepal’s 601-member CA1 was elected in April 2008 as part of the Comprehensive Peace Agreement of 21 November 2006 between the Nepal Government and the Communist Party of Nepal (Maoist) for a term of two years. Notwithstanding four extensions, the political fragmentation within the Assembly (where no parties commanded a majority) and bitter inter- and intra-party strife eventually led to the dissolution of the CA1 in May 2012 without the promulgation of the new Constitution. The main stumbling blocks in the negotiations over the new constitution were Nepal’s federal restructuring and form of government to be adopted. On 19 November 2013, after over a year with no legislature in place, the CA2 was elected bringing a relative majority to the centrist parties (Nepali Congress and UML). Inclusionary reforms progressively fell off the political agenda of the government and Nepal’s climate of political stalemate led to what a number of commentators have described as ‘counter-revolution by stealth’.

In the wake of the 2015 earthquakes, Nepal’s political elites, however, vowed to ‘fast track’ the drafting of the new document and finally complete the peace process. On 8 June, the main four parties (Nepali Congress, UML, Maoists, and Madhesi Forum-L) reached a political settlement known as the 16 Point Agreement, which was to form the basis of the new constitution. Significantly, the negotiations included only four of the thirty-one parties represented in the Assembly and made little effort to include representation from the marginalised groups. The Agreement featured a parliamentary form of government with a mixed electoral system and a separate Constitutional Court, but crucially sought to postpone the naming and demarcation of the federal units until the promulgation of the new constitution and the elections of the central and provincial legislatures. The postponement of the long-awaited process of federal restructuring immediately sparked protests across the country. Federal restructuring had come to represent the promise of inclusion for the marginalised groups. As a result, petitions were filed in the Supreme Court to have the Agreement declared violative of the currently in force 2007 Interim Constitution. In an unprecedented move, on 19 June, a single bench of the Supreme Court issued an Interim Order against the implementation of the Agreement’s postponement of federal restructuring. The apex Court arrived at its decision on the basis of Article 138(3) of the Interim Constitution, which mandates that ‘the final decision relating to the structure of the state and federal system shall be made by the Constituent Assembly’.

Politicians accused the Court of overreaching and the Assembly’s Constitution Drafting Committee (CDC) pressed on with the preparation of the draft on the basis of the 16 Point Agreement defying the Supreme Court’s order. In late June, a copy of the draft was leaked to Hindustan Times journalist Prashant Jha, who published a razor sharp critique of the document, while Supreme Court lawyer Dipendra Jha furthered the criticism in his ten-point analysis. On 30 June, CDC Chairman K.P. Sitaula submitted the draft constitution to the Assembly for the House to begin deliberations. Protesters took to the streets and further denunciation of the document emanated from civil society. Eminent journalist Kanak Mani Dixit described it as ‘sub-optimal’. A Kathmandu Post editorial, in line with the analysis put forward many times by prominent writer C.K. Lal, depicted the draft as an instrument to further consolidate the old power structure for instance through the attempt to remove the inclusionary provisions of the Interim Constitution. Women activists denounced the patriarchal nature of the draft, while janajati, dalit, and Madhesi activists condemned its exclusionary clauses. Seira Tamang of Martin Chautari pointedly commented: ‘the now officially public draft constitution has confirmed the fears of many. It has veered from the sentiments of the 2006 Jana Andolan and the 2007 Madhes Movement, retracted from the commitments of the Interim Constitution (2007) and largely written-over the progressive drafts produced by the most-representative elected body in Nepal’s history—the first Constituent Assembly (2008-2012)’.

Protests grew increasingly violent and the security forces’ response heavy handed, especially in the Terai, where the demands for federalism and equal citizenship have been historically the strongest. In the meantime, the Assembly opted for a fast-track procedure to pass the new constitution, allowing for a very brief period of public consultation over the draft. Amidst mounting tensions, on 8 August, the political leaders relented and inked a six-province deal on federalism. Tharu political leader Rukmini Chaudhary pointedly commented on the deal: ‘Accepting the six-state federal model is suicidal for the indigenous […] we demanded two states in the Terai: Madesh and Tharuhat. There is an incomplete Madhesh, and no Tharuhat. We said we don’t want a North-South federal model that puts the mountains and plains in the same state, but that’s exactly what they have given us. Indigenous groups have been cheated. Rai and Limbu homelands have been lumped together as in one state. Magar and Gurung homelands are also lumped together, as have Tamang and Newar homelands. There is Pahadi Brahmin-Chhetri dominance in each state’.

As protests intensified, on 21 August the Nepali Congress, UML, and Maoists agreed on a new seven-province federal deal (essentially carving out Province 7 out of Province 6 and maintaining the controversial longitudinal division of the country), while the Madhesi Forum-L did not support the scheme. On 23 August, the draft constitution (with the seven-province model) was tabled in the Constituent Assembly for approval by the House as the MPs representing the marginalized groups walked out in protest. Violent demonstrations and communal violence erupted across the Terai, leading to the death of security forces and protestors in Kailali, the imposition of a curfew, and the deployment of the Nepal Army.

It is now high time for political leaders in Kathmandu to rethink the problematic features of the draft constitution: federal arrangements (a very weak form of federalism and the controversial demarcation of the units); the removal of the adjective ‘secular’ from the Preamble (vis-à-vis the ongoing attempts to remove all references to secularism from the document and even to reinstate the Hindu Kingdom provision); the highly discriminatory citizenship provisions under which citizenship cannot be passed by Nepali mothers alone; a number of restrictions on fundamental rights; the ongoing exclusions of dalits, janajati, Madhesi, women, LGBTI, religious minorities; and many others.

The Nepali constitutional experience exemplifies the complexity of constitution making endeavours and highlights the crucial importance of the combination of an inclusive political process with far-sighted institutional design. It is to be hoped that Nepali political leaders will promulgate a legitimate and enduring document in which all Nepalis can feel included. The consequences of doing otherwise would be catastrophic at this point of the country’s history.

(Dr. Mara Malagodi is a Lecturer in Law at City Law School, City University, London. She is the author of Constitutional Nationalism and Legal Exclusion – Equality, Identity Politics, and Democracy in Nepal [OUP 2013])

Conversation with Flavia Agnes, Director, Majlis Legal Centre

Ms. Flavia Agnes is a lawyer who has worked in the field of women’s rights for over two decades. She is a co-founder of Majlis Legal Centre, Mumbai, that provides socio-legal support to women and children on issues of matrimonial rights, domestic violence, sexual abuse, etc. She has several publications to her credit and is a regular contributor to the newspapers. She kindly agreed to have a chat with us [Avani Chokshi, Editor and Mansi Binjrajka, Associate Editor] in Mumbai. Following are the excerpts from the interview.

Q. Could you give our readers a brief history of Majlis? In your opinion, what was the crucial turning point in its history? Where does its future lie?

A. Some of us were part of the women’s movement in Mumbai for about a decade before Majlis was set up. I was part of a campaign group, which worked for rape law reforms in the early eighties, and also worked on providing support to women victims of domestic violence. My friend Madhusree Dutta was a theater director from Kolkata who had recently moved to Mumbai and was engaged with arts, cultural performances, etc. and was trying to evolve a new feminist language in this field and wanted to make socially relevant films. Others were also from different disciplines such as architecture, literature etc. We wanted to be innovative, relevant, creative and consistent so we came together and set up Majlis in 1990 and registered the organization in 1991 as a Public Trust and Society. I was keen to shift from protest and campaign to more sustained ground level intervention at a professional level as a lawyer.

Q. Many women’s rights organizations, especially NGOs, have shifted from rebellious organizations to bodies that are considered experts in the field. They now have a role to play in government consultations and policy decisions. How do you view this change? Does this amount to a co-optation of the radical edge that the women’s rights organizations had? Or is it simply a feminist victory?

A. I don’t view it as a negative trend. It is a mature and sustainable move. Though we claimed to be ‘activists’ we were not working at the grassroots; the protests were sporadic. It was important at the initial stage to focus on the issue and create public awareness through protests. But once we were able to get the necessary reforms in law, we needed to work on a more sustainable level. Providing long term litigation support for victims of domestic violence was a priority. I was convinced that we must work within the main stream and make our presence relevant in order to bring in changes in courts, in legal academics, and build a knowledge base of feminist legal theory. We had to change the perception of the government authorities from being mere trouble makers who are constantly holding protests, to serious lawyers and scholars.

Q. One of the objectives of Majlis Legal Centre has been to ensure that no discriminatory laws against women are passed by initiating public interest litigation and through policy level interventions. Can you tell us about this process? Have there been any unintended consequences to Majlis’ work in this respect?

A. No, I don’t think so. We initiated campaigns around some important concerns – like opposing the government’s move to introduce the Uniform Civil Code (“UCC”), particularly in the wake of the demolition of Babri Masjid and the Bombay riots of 1992-93 and a right wing tilt in politics, the rise of Shiv Sena in Bombay, the rise of BJP at the national level, etc. and also to counter the women’s movement’s demand regarding the same which we felt was short sighted and not politically grounded. So writing articles and interventions in conference was important and we did succeed. For reforms from within, we campaigned for reforms in Christian personal laws both through litigation as well as campaigns. We negotiated with the Church and the State to bring amendment to the Indian Divorce Act so Christian women can secure the right of divorce on the ground of cruelty. We worked within the area of Muslim law to counter the anti-Muslim propaganda and highlighted the positive rulings within the Muslim Women’s Act, 1986 and how they could be beneficial in ensuring the rights of Muslim women. We took up the issue of rights of bar dancers in Mumbai and launched a campaign and when the government brought a ban, we challenged it in court by representing an association of bar dancers. We also initiated smaller campaigns like challenging the fraudulent marriage registrations through ‘vivaha karyalayas’ and highlighted how women’s rights are defeated when the marriage is held invalid. We also took up the issue about a woman having to pay charges of imprisonment of her husband for non-payment of maintenance which is called “jail butta” charges and got a circular issued to abolish this by working with the High Court and the State Government. When in 2001 the ceiling of Rs.500 under S. 125 of the Code of Criminal Procedure (“CrPC”) was removed, our magistrates’ courts failed to take note of it. So we urged our High Court Registry to issue a circular to all magistrate courts and family courts to ensure that this is followed. These are significant interventions at a policy level.

Q. What are the difficulties you faced to set up Majlis as a non-governmental human rights organization involved with rights and culture?

A. Post Bombay riots we faced a lot of problems because of our name ‘Majlis’ which is associated with Muslims and Muslim fundamentalists. Every time we had to seek a registration there was pressure on us to change our name. But we stood firm and fought for our right because the name reflected our secular ideology and sensitivity towards minorities. It has taken around two decades for us to get acceptance from various government bodies.

The idea of an organization which is engaged with law and cultural initiatives was novel at the time and many experts from these fields were doubtful as to how it would work. But the work of the legal centre and the cultural centre was complementary during the initial years. Also secularism and a rights discourse were integral to our functioning that served as a common thread between the two units.

Q. The proponents of UCC in India often base their case solely on the apparent plight of Muslim women in India. In this one-sided argument, what issues do you think are being overlooked?

A. The demand for a UCC was first articulated from women who were politically active in the nationalist struggle who realised that all personal laws are based on a patriarchal structure. But after independence, the same women realised that it is important to bring changes for Hindu women as they lagged behind their Muslim and Christian counterparts as they did not have a right of divorce and a right to property. So we got a series of Hindu family laws in the fifties despite the Constitutional mandate of equality and non-discrimination on the basis of religion. No one seemed to mind this and it was considered progressive. In 1976 only Hindus marrying under the Special Marriages Act were taken out of the purview of the more egalitarian Indian Succession Act and were placed under the Hindu Succession Act so that the men could retain their right to ancestral property. This move was both anti women (strengthening male dominated HUF property concept) as well as anti minority (only Hindus were given this benefit and not minorities). No one, even from the women’s movement, opposed this. But when divorced Muslims were taken out of the purview of S.125 CrPC and were placed under a special ‘Muslim’ Law of maintenance post the Shahbano controversy there was a huge furor in the country from women’s groups as well as secular human rights groups. Since The Muslim Women (Protection of Rights on Divorce) Act, 1986 (“MWA”) was passed amidst a great deal of controversy and since it was viewed as “appeasement” of Muslims, this law was challenged for its constitutional validity by these groups. But meanwhile when divorced Muslim women were approaching the courts for their right of maintenance and post divorce settlement, the courts were giving a positive interpretation of this law, and granting women lump sum amounts. These path breaking judgments of the lower courts did not get any publicity in the media. This is due to an inherent bias against Muslims in civil society, media and even legal scholars. Though there is polygamy among Muslims, each wife is entitled to maintenance. Among Hindus widespread polygamy still prevails but Hindu women are denied maintenance when their husbands deny that they are ‘wives’ and plead that they are mere concubines or ‘kept’ women. Even this issue is not sufficiently publicised.

Since, as litigating lawyers, we notice these issues when we litigate on behalf of women, we feel very strongly about the way Muslim law is negatively portrayed. If legal scholars and activists believe that Muslim women have no rights until a UCC is enacted, they will pass on this negative projection to local NGOs, budding lawyers and to women who approach them for help. This results in a great disservice to Muslim women. If there were more lawyers like Majlis’ lawyers who are able to effectively guide women and litigate for their rights, instead of spreading negative propaganda, many Muslim women would have benefitted.

The media highlights only negative aspects like the Imrana case where a local qazi issued a fatwa at the instance of a journalist that the marriage of a Muslim woman raped by her father-in-law is dissolved, though this may be an isolated incident with no legal validity, only to sensationalise the issue that Muslim law is barbaric and archaic and to argue for a UCC. On the other hand, even the 2001 constitutional bench ruling in Danial Latifi case, which upheld the constitutional validity of the Muslim Women’s Act and secured the right of fair and reasonable settlement for life did not get much publicity. Another important SC ruling of 2002, Shamim Ara which invalidated triple talaq has also not been publicised. A woman from no other community is humiliated in court the way a Hindu woman is humiliated when her husband states that she is a mistress and not a wife and hence not entitled to maintenance. These instances have a political context.

Q. Have Majlis’ collaborations with the government, in the form of RAHAT and MOHIM, facilitated Majlis’ work in other areas?

A. For about 20 years from 1991 to 2011 we had made significant contribution to women’s rights through litigation, scholarly writings and public campaigns. In 2003 we also started a programme of awarding fellowships to women lawyer in district towns so that our work can spread to district towns. We had handled around 50,000 cases. Since we were able to use the law effectively and get positive results there were constant demands on us to scale up and start “Majlis” elsewhere. But we knew that this is not a workable model because we were dependent on foreign funding. If the funds did not come the work would stop. For instance, after 7 years our very effective programme of district lawyer fellowship had to stop since we did not get funding for it. Also despite our sustained work, our outreach was limited and we were not making structural changes within the system.

So from 2011, we changed our strategy and started working closely with the government. With this our outreach expanded greatly. For instance we could monitor the implementation of the Domestic Violence Act in the whole state, bring out a document of procedures and guidelines to be followed under the seal of the Chief Minister, the Chief Justice, and other concerned high level officials from all stake holder departments. I personally cannot take the credit for this shift. This was the vision of our programme coordinator, Ms. Audrey D’Mello, who joined the organization in 2007 and since then we worked gradually but systematically towards this goal.

We were entering new terrain, but fortunately we had some very good officers and we received their full cooperation. Our aim has been to work closely with the government but not take any government funding, so that we remain autonomous and the government cannot twist our arms. This has worked well for us.

Q. Majlis has conducted many police and judicial trainings over the years, relating to the Protection of Women from Domestic Violence Act, 2005 (“PWDVA”), Protection of Children from Sexual Offences Act, 2012 (“POCSO”), and sexual violence against women and children. What types of issues arise during the course of these trainings? Have you noticed any improvement in the practices of the police as a result of these trainings?

A. We were lucky that we started our police trainings after the newer laws like POCSO and Criminal Law Amendment, 2013 were enacted and the police were receiving a flak for not following the newer provisions. So we were invited to conduct skill training and explain the new provisions. It was a great moment for us because then not only could we set the terms and conduct the training, but also gauge its impact while helping victims of sexual violence when we went to meet them for providing support. When we noticed lapses we were able to immediately communicate this to the Police Commissioner giving specific details of the case like date, FIR No., name of the police station and name of the concerned officer so that it could be verified and immediate action could be taken. So this kind of end-to-end scheme of training and monitoring has brought in tremendous results.

Earlier most NGOs were complaining that the police do not register cases of domestic and sexual violence. But today, most NGOs tell us that the police do register the case and the attitude of the police towards the victim has changed. This was shared by NGOs at the recent consultation that we had held on the issue of mandatory reporting. We felt really good when we heard these comments.

During training we avoid what is generally referred to as “gender sensitization”. Our focus is on laws, procedures and lapses. It is focused on skill training and the police learn a lot and appreciate the sessions. We also have a helpline so that when the officers who are trained are in doubt about the sections to be applied in a particular case, they call us for clearing their doubts. This has helped in improving conviction rate in our courts.

Beyond this there are attitudinal problems. For instance, when we started the police used to say all rape cases are false, mostly “affair gone sour” type. But when we presented statistics and judgements and adverse comments of the judiciary on lapses in investigations etc. they started respecting our knowledge, because they had never seen court judgement and least of all comments about investigations. Initially they questioned our credibility and doubted our competence and knowledge of criminal law. But soon their attitude towards us changed and our team of young women lawyers were highly valued and respected.

Q. It has been almost two years since the Maharashtra government introduced the Manodhairya scheme for financial support for survivors of sexual violence and acid attacks. As a body which oversees the implementation of the scheme in Mumbai, what are Majlis’ findings on its effectiveness?

A. We consider this as our most innovative intervention because it has greatly helped the victims. The District Compensation Boards have been set up under the District Collector and senior officers from health, prosecution, police etc. and a member from a local NGO with District Women and Child Development Officer (“WCD Officer”) as its member secretary. The financial support is given immediately after the incident. The burden of submitting the FIR and medical report to the WCD Officer is on the police and not on the individual victim or her parents.

A meeting has to be convened within a fortnight and the money has to be disbursed within a week. It does not depend on the end result of the trial. If the medical report discloses that sexual abuse has taken place, the committee cannot dismiss the claim. The amount will be deposited directly into the victim’s bank account and if she does not have one, the WCD officer must help her to start one. A part of the amount can be used for the child’s education.

Most victims belong to lower socio-economic strata, when she receives the amount, her confidence level rises as she knows that she now has some financial security. So we feel it is a well formulated scheme. But deep-seated patriarchal biases still persist and Board members try to stall the process of disbursement by discrediting the victim. The NGO member has to be very strong to argue against this trend.

After the last election, our government changed and many officers were transferred. In the hands of the new government we do not know how the fate of this scheme as the government is planning to review the scheme since the assured funds from the Center have not come in. This is a very disturbing development.

Q. Can you tell us your views on S. 19 of POCSO which mandates reporting of child sexual abuse?

A. Mandatory reporting has its pros and cons. But it is now here to stay. So there is no point in debating it now. While there are some instances where mandatory reporting may have some adverse impact, we need to understand the context in which it was brought about. Several studies had highlighted that a large number child sexual abuse cases remain unreported and even when they are reported, they are not registered. The hospitals do not report, the family or the school authorities do not report, the neighbours do not report. So this provision was included to bring a social consciousness and collective responsibility so that a child is protected. But such a move requires a great deal of ground support which is totally lacking even after three years of implementing POCSO. Unless a socially relevant legal provision has the necessary infrastructure and skilled personnel to implement it, merely adding it in a statute does not help. This is where we are lagging.

Q. What are your views on gender-neutral laws relating to rape, sexual harassment, etc.?

A. A gender-neutral law will take away the specific patriarchal context in which these crimes take place. Let’s take the case recently in the media, the Aruna Shanbaug case. She was strangled with a dog chain. The crime is gender neutral, but the context is gendered. The abuser wanted to rape her, instead he sodomised her, and left her to die, and she was reduced to a vegetative state and she lived in this state for 42 years. Since we live in a gendered society, a gender neutral law will rob it out of its social context. The crime of rape revolves around the notion of sexual purity of women. It is not that young boys, gay men or transgendered are not sodomised. But the social context of a crime of rape is different and very specifically gendered than the other crimes. The context must always be kept in view within the legal domain.

Q. Recently, you have spoken out against the inclusion of marital rape in criminal anti-rape law in India. Can you elaborate on the viable alternatives through which a victim of marital rape can seek a similar remedy?

A. This is because I believe that rape within marriage is very different from rape outside marriage. Within marriage, sexual violence forms part of a continuum of violence including physical, sexual etc. within a marriage contract which is sexual in nature in the first place. According to me this needs a special treatment and a woman needs different kind of support including shelter, maintenance and protection. Sending the person for seven years of imprisonment is not the answer, because the woman may not even want this. Also how is the crime of assaulting a wife with an iron rod any different from having forcible sexual penetration? I feel that by placing sexual violence on a higher pedestal within marriage, we are subscribing to the same old patriarchal notions that sexual violence is a higher degree of violation than physical abuse which paralyses her, breaks her limbs or damages her internal organs. In the eighties we made one mistake by treating dowry related violence as a special category. Now once again we are making another mistake by treating sexual violence as a special category, and very soon there will be articles in the press about how women are misusing this provision, and the entire rape law will get diluted because of this.

Q. Do you believe that S. 498A of the IPC is, today, still an effective mechanism? How do you think that the public as well as judicial misconception of S. 498A, as a law much abused and misused, can be rectified? What do you think of the government’s proposal to make this offence compoundable?

A. S. 498A is overburdened with its projection as an anti-dowry law and it has not received sufficient emphasis as an anti domestic violence law. This is the major problem. The blame for it lies squarely with the women’s movement of the early eighties when there was so much emphasis on dowry related violence and a demand for a specific law to curb dowry related violence, with the result other types of violence was not considered serious. This is the major problem. I had opposed this move even then and had written my own autobiography, “My Story … Our Story of Rebuilding Broken Lives”, to highlight that domestic violence is not always related to dowry. It took the women’s movement 20 more years to reframe the issue as domestic violence and to get a civil law on domestic violence that is relief oriented. But this definition of domestic violence was not projected on to cruelty under S. 498A. The media, the lawyers, the courts and even legal scholars constantly re-emphasized that it is a dowry related law, to the extent that every woman who goes to the police station to complain about severe domestic violence is forced to add a dowry allegation by the police, because of their own ignorance about S. 498A. They refused to consider that cruelty of any kind not related to dowry can be brought within it purview. But the explanation (a) of this act is very clear. If there are sufficient cases filed under it, a sustained media campaign and judiciary takes note of it, it is still not too late to change the perception.

Q. This month, the 257^th report of the Law Commission of India was submitted. It clearly states, “we are not in favor of the law placing a presumptionin favour of joint custody”. It proposes: “we are of the view that joint custody must be provided as an option that a decision-maker can award, if the decision-maker is convinced that it shall further the welfare of the child”. What are your views on this system? How effective do you feel this system would be in the Indian context? Do you feel that such a system in India would undermine the authority of either guardian – custodial or otherwise?

A. In India it will be used as an instrument to harass the wife and to make her submit to the husbands demands and as a means of getting away from payment of maintenance. Even in the West there are several studies which have brought out the fact that how women are humiliated, intimidated and threatened during matrimonial proceedings so that they give up their claim for maintenance to retain sole custody of their children. But these countries have state support for single women, shelter homes and also division of matrimonial property, so they are more secure than women of our country who do not have any of this protection. Also the demand for custody is made by a very few urban upper class husbands while a vast majority of litigating husbands are happy to give up custody and not bother to even pay maintenance. Even those who seek custody or regular access, once the divorce has come through, don’t bother to meet their children and this causes them great mental anxiety and trauma. While women are punished for not obeying orders of access, there is no punishment for men, who abandon their children or do not comply with the order of access or maintenance. This is a cause for concern in future matrimonial litigation and will result in great hardship to already burdened women.

Q. It is today accepted that women are not always passive victims, but are sometimes actively involved when it comes to violence, as instanced by the 2002 Gujarat riots and innumerable other instances of caste atrocities. While this is accepted even by most feminists, these same feminists reject the possibility of women being vindictive and misusing the law in the context of S. 498A. Do you think of this as a contradiction? How do we address this?

A. It is like saying, it is the mother-in-law who is most abusive to her daughter in law and not the husband or the father-in-law, and arrive at a conclusion that women are against women and men have nothing to do with it. They are the innocent bystanders caught in this war of supremacy between his mother and his wife, both fighting for his love and affection! It is not men that we are talking about, it is patriarchy, and men and women are both caught in this web. Even children become part of it. Even women prefer to have male children. We live in a male preference society which awards special privileges to men right from birth.

When women attack other women from the opposing communities, during communal and caste riots, we are dealing with identity politics of caste or minority identity in which both men and women are entrapped. We have seen this even during Bombay riots. But the same woman may also get beaten by her husband or even get raped by other men from her own community. There the patriarchy operates.

We have also seen anti-women attitudes even with women judges, as they fear that they will be labeled ‘pro-women’ and they want to prove to their colleagues that they are ‘neutral’ which in factually means being ‘anti women’. In fact many a times, male judges are more sympathetic towards women. Same is also with the women police who can be very brutal with women accused or during protests etc. Gender is not homogenous. It is always linked to power politics and structures of dominance. We cannot have a linear understanding of gender or even patriarchy.

Q. Why, in your opinion, is society hostile towards women who stand up for their rights as opposed to women who portray themselves as victims?

A. It challenges the very basis of patriarchy so men get threatened by such women and want to cut them down to size to restore their own confidence in male superiority.

Q. What do you think India needs at the moment – more laws, better implementation agencies, or more social support structures?

A. I don’t think we need more laws. We need better implementation, better access to justice especially for the poor and the marginalized and better social and legal support for victims in order to rehabilitate them. But the movement has emphasized mainly on campaigns for legal reform and very little on implementation and socio-legal support for victims.

Q. Lastly, what are your views on India’s growing body of scholarship on the law produced by social science and humanities scholars? Do you think this body is actively contributing to substantial knowledge creation or does this scholarship merely scratch the surface and simply turn law into an obscure academic exercise?

A. I am not an expert on this subject. My engagement is primarily with law – sociology of law, legal history and/or feminist jurisprudence. There has been some important scholarship in this area by legal and feminist scholars. The law texts by themselves are devoid of a social context and hence are very limiting. So we are not exposed to the social milieu within which the law was formulated. It is important to place law reforms in their historical context. So such scholarship has an important place in the study of law.

But I also find some of the work in this field, very limiting, as the language used is difficult for a law student to grasp and also it approaches the issue from the perspective of other disciplines and not through the discipline of law. If we approach it from the perspective of law, then it would be necessary not just to follow up a handful of cases or a single case as an anthropological study, we would have to examine it in its totality which would include the general legal trends, the views of the higher judiciary etc. by citing legal authorities in this field. Very often I find that this is not happening.

(Special thanks to Mr. Saptarshi Mandal, Assistant Professor at Jindal Global Law School)

Image courtesy here.

Analysis of the Labour Code on Industrial Relations Bill – Part IV

(Editor’s Note: This is fourth and final in a series of blog posts on the Labour Code on Industrial Relations Bill. Part I, II and II are here, here and here respectively. This post is a continuation of Part III, by Ayani Srivastava and Arpita Sengupta)

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We comment on matters relating to voluntary reference of disputes to arbitration, procedures and powers of authorities, strikes and lockouts, lay off, retrenchment and closure and the miscellaneous provisions in Chapters VI to IX of the Labour Code on Industrial Relations Bill, 2015 (‘Draft Code’).

I. Voluntary Reference of Disputes to Arbitration

Change in Time Frame for Reference to Arbitration

The provision on Voluntary Reference of Disputes to Arbitration (S. 50 of the Draft Code) states that parties to the dispute can refer it for arbitration at any time, even after the dispute has been referred to a Tribunal. This is a major change from S. 10A of the IDA. As per the existing act, in case a party decides to refer a dispute for arbitration, S. 10A of the IDA mandates such reference to be made before the dispute has been referred to a Labour Court/Tribunal/National Tribunal. This was also reiterated by the Supreme Court in Karnal Leather Karmachari Sangathan v. Liberty Footwear Company.

The increase in time frame for reference will mean that more and more disputes will be referred to for arbitration at any time. Such a provision can have a damaging effect. Referral of a dispute for arbitration at a late stage of proceedings before the Tribunal would waste the time and energy of the Tribunal. Also, the intention of the legislature to include arbitration was to introduce an alternate remedy to adjudication. The Draft Code tries to do away with this fact. There would be no bar against adjudication even after a reference has been made. This would essentially mean the movement of a case between multiple judicial forums thereby resulting in judicial inefficiency and inexpediency.

There should be a limit in the time frame for reference of a dispute by retaining the provision that a dispute could be referred to for arbitration only before the Tribunal/National Tribunal has taken it up.

II. Procedure, Powers and Duties of Authorities

Removal of Court of Enquiry, Labour Court and Board of Conciliation

The Draft Code removes the Court of Inquiry, Labour Court and the Board of Conciliation (S. 5, 6 and 7 of the IDA). This is a welcome change given that the multiplicity of forums and difference in disputes that could be referred to each forum made it difficult for the parties to resolve disputes in an expeditious manner.

Application to the Tribunal

The Draft Code has done away with the reference of any industrial dispute by the Appropriate Government (S. 10 of the IDA). Under the IDA, adjudication of disputes can start, apart from a narrow set of exceptional cases, only after reference by the Appropriate Government. This scheme vests inordinate power in hands of the political executive and this has smothered the autonomy of trade unions. Now, the aggrieved person can file a suit directly before the Tribunal/National Tribunal. This is a welcome move given that it would free the remedy of adjudication from being hostage to executive discretion. Such a change also furthers the principles laid down in a series of judicial decisions from Ram Avtar Sharma v. State of Haryana, Telco Convoy Drivers Mazdoor Sangh v. State of Bihar to Sarva Shramik Sangh v. Indian Oil Corporation Ltd. & Others.

Time frame for Application to the Tribunal

Currently, an Industrial Dispute can be referred to a Tribunal/National Tribunal only after a reference of the dispute to the Tribunal/National Tribunal by the Appropriate Government (S. 10 of the IDA). But there is no formal limitation period within which the government has to refer a dispute. This has resulted in a confounding set of judicial precedents[1]. However, S. 53 of the Draft Code now imposes a formal time frame of 3 years within which any industrial dispute has to be brought up before the Tribunal. Such a time frame would actually provide quicker remedies by eliminating a large number of cases on archaic matters.

Execution of an award of a Tribunal/National Tribunal by a Civil Court

S. 57(10) of the Draft Code is a new provision, which allows the execution of the award of a Tribunal/National Tribunal by a Civil Court within 6 months from the date when it receives the order, award or settlement. Such a provision necessitates that the government should also include a provision making it mandatory for the Tribunal to send the award within a specified time period so as to ensure the timely performance of such award, order or settlement.

Commencement of awards

With regard to the commencement of awards (S. 63 of the Draft Code and S. 17A of IDA), the Andhra Pradesh HC had said that the provision is unconstitutional in Telegunado Work-charged Employees State Federation v. Government of India. The right that this provision (S. 63 of the Draft Code) gives to the executive to sit on a judicial order or modify/reject it was stated to be unconstitutional. It has also been held that the provision creates an irrational distinction between difference in the commencement of awards between public and private sector undertakings. The judicial pronouncement does have merit and the government should make necessary modifications so as to avoid any confusion about the constitutionality of this provision.

III. Strikes and Lockouts

Removal of distinction between Public Utility Services and other Industries

S. 71(1) of the Draft Code seeks to eliminate the distinction between public utility services and other industries by imposing uniform restrictions. It makes submission of prior notice for strikes and lock-outs mandatory for all industries and not just public utility services. Such universalisation would reduce the impact of disruption caused by coercive actions since the concerned parties would have the time to prepare and adapt. The Second National Commission on Labour and the International Labour Organisation for the Committee on Freedom of Association advocated the requirement of prior notice. Also, as has been held in Vidyasagar Institute of Mental Health Neuro Sciences v. Vidyasagar Hospital Employees Union, a strike should not be done by causing disadvantage to the people who are not willing to get involved in it. Hence the inclusion of industrial establishments as a whole under the provisions of S. 71 is a desirable move.

Definition of Strike

The definition of strike corresponds to the previous definition contained in S. 2(q) of the IDA, except for one addition. The Draft Code adds that strike includes “the casual leave on a given day by the fifty per cent or more workers employed in an industry”. This is an improvement for the new definition embraces cases where the substance of strike is present though the form may be different.

Notice period for a strike

S. 71 (1)(a) and (b) of the Draft Code, needs to be clarified. There is confusion as to whether a strike cannot commence within 6 weeks of the notice or within 14 days. Even though Essorpe Mills Ltd. v. Presiding Officer, Labour Court has held that both these clauses need to be read together, the applicability of the two different time periods need to be clarified. Clause (d), (e) and (f) of 71(1) and (2) prohibits strikes and lock-outs irrespective of the subject matter of the dispute pending. This is uncalled for given that it restricts the right to strike in an unrelated matter, which is the major weapon for collective bargaining. The provision allows complete subversion of the statutory freedom to strike through filing of applications that may have no nexus with the subject-matter of strike. Therefore, we recommend that the provision should prohibit a strike only on matters connected with the subject-matter.      

Coercive and wilful go-slow and gherao and prohibition of strikes in breach of a contract

The Draft Code has added two new clauses under S. 71. While clause 8, which prohibits a coercive and wilful go-slow and gherao during conciliation proceedings and arbitration proceedings, is commendable, clause 7 really seems to be redundant. Clause 8 supports the holding of Jay Engineering Works v. State of West Bengal, which had explicitly stated that a gherao couldn’t go to the extent of being violent and coercive. Clause 7 provides blanket ban on strikes in breach of contract. This seems to be contradictory to this entire section. Does this mean that an employer can impose a complete prohibition on strikes if the contract of service, which is usually a standard form of contract with the employees at a lesser bargaining power, states so? The entire aim of the Draft Code is to bring about industrial harmony and not to encourage such subordination. Hence keeping such a provision would be against the aim of the act.

IV. Lay Off, Retrenchment and Closure

Applicability of the Chapter

This Chapter broadly corresponds to Chapter V-A of the IDA but its application goes beyond mines, factories and plantations as defined under the Factories Act, 1948, Mines Act, 1952 and the Plantations Labour Act, 1951 respectively.

Continuous Service – Burden of Proof

S. 75 of the Draft Code, which corresponds to S. 25B of the IDA, define continuous service. The provision suffers from certain ambiguities. One such issue pertains to the burden of proving continuous service. In a long series of judicial pronouncements, the burden of proving continuous service has been put on the worker, such as Range Forest Officer v. S T Hadimani and Surendranagar District Panchayat v. Gangaben Laljibhai. Although this follows the fundamental rule of evidence in that the one making the positive assertion is expected to prove the same, it is our view that in light of the far greater difficulty of the worker in asserting his attendance as opposed to the employer who keeps a record of the same, the burden of proof should be shifted from the worker to the employer.

V. Special Provisions Relating to Lay Off, Retrenchment and Closure in Certain Establishments

Increased Applicability of the Chapter

Chapter X of the Draft Code corresponds to Chapter V-B of the IDA. The applicability of Chapter V-B in the existing statute is limited to a factory, mine or plantation. No such limitation has been imposed under the Draft Code, which is a welcome development.

Definition of Lay Off

The provision on lay-off in the Draft Code corresponds to the first part of S. 2(kkk) of the IDA. However, the Draft Code omits the “Explanation” and “Proviso” which were present in the Act.

Due to these omissions, S. 2(1)(n) of the Draft Code leaves certain contingencies ambiguous. At what point of a working day can a worker said to be “laid-off”? How many hours should lapse from the time the worker presents himself at work? What happens if the worker is made to work only one shift in a day? What happens if the worker is not given employment even after being asked to present himself during the second half of the shift for the day? The IDA mandated that the workman be paid full basic wages and dearness allowance for that part of the day. With the omission of this guarantee, workmen’s rights may be diluted. These issues should be clarified.

Change in Threshold and Compensation

This Chapter imposes a requirement of prior governmental approval for any lay-off, retrenchment and closure for establishments covered by it. The current law specifies the threshold limit for the number of workers under this Chapter as 100. It has been argued that the stringent requirements have throttled the expansion of labour-intensive manufacturing sector. As a result, there have been various proposals for changing this number.

The contention of the central trade unions[2] has been that with increased mechanisation of work, a greater number of workplaces hire fewer workers, and hence the threshold should be lowered. In contrast, there has been overwhelming pressure from business associations to increase the threshold in the interest of better functioning of medium enterprises because higher thresholds increase flexibility in hiring of labour to match the fluctuation in demand. Analysts respond to such concerns of trade unions with the claim that short-term job losses are offset by long term increase in employment. The Report of the Second National Labour Commission also recommended restoration of the original limit of 300. We welcome the increment.

However, we would like to mention a few caveats. Inter-sectorial mobility is low in India and therefore, the claim that loss of jobs in one sector would be set off by creation of jobs in another may not be empirically grounded. Secondly, long-term benefits cannot as a matter of policy offset the very real impacts of short run losses of livelihood. Thirdly, to leave workers with absolutely no claims post dismissal would discourage any investment in firm-specific skills and eventually hamper the competitiveness of firms. In any case, constitutional principles of security of employment and right to livelihood must remain paramount in our legislative design and cannot be compromised for the sake of economic efficiency.

VI. Miscellaneous Provisions

Unfair Labour Practices

There have been numerous conflicting cases regarding the status of continued casualisation of service of worker as an unfair labour practice. This confusion has largely been restricted to public sector establishments, bound by Article 12 of the Constitution of India. The Constitution Bench in Secretary, State of Karnataka and Ors. v. Uma Devi has laid down that courts should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme. Some cases have interpreted Umadevi’s case as not overriding the powers of Industrial and Labour Courts in passing appropriate order, once unfair labour practice on the part of employer is established. However, an ambiguity in this regard persists especially since Umadevi was a Constitution Bench judgement. We recommend that the status of continued casualisation of service of workers as an unfair labour practice be explicitly clarified in the Draft Code.

Recovery of money

S. 93 lays down the procedure for recovery of money from an employer. This section of the Draft Code is an exact reproduction of the corresponding provision of the IDA (S. 33C). There appears to be ambiguity with respect to whether a claim under S. 33C should already have been adjudicated. We recommend that the Draft Code clarify the same. In order to discourage the filing of fictitious claims, there must be an imposition of time limit. However, condonation of delay, as envisaged by the Limitation Act, must remain so as to avoid excessive stringency.

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[1]See Nedungadi Bank Ltd v. K.P. Madhavankutty And Ors, (2000) 2 SCC 455; Sapan Kumar Panditv.U.P. State Electricity Board and Others, (2001) 6 SCC 222; Haryana State Co-operation Land Development Bank v. Neelam, (2005) 5 SCC 91; and S. M. Nilajkar and Others vs. Telecom District Manager, Karnataka, (2003) 4 SCC 27.

[2]  The contention was before the Ministry of Labour and Employment as recorded in the Report Of The Working Group On “Labour Laws & Other Regulations” for the Twelfth Five Year Plan (2012-2017).