Category: Human Rights

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Human Rights Supreme Court of India

Section 377 — Supreme Court has failed in its fundamental duty to protect fundamental rights

Today, one day after World Human Rights Day, India’s most progressive and respected institution has stained its proud record of protecting and advancing citizens’ rights — perhaps indelibly.

In 2009, the Delhi High Court in an inspired verdict, that decriminalised homosexuality, had said:

“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality, which will foster the dignity of every individual.”

Today, after a long, convoluted appeals process that stretched over four years, the Supreme Court of India overturned the Delhi High Court’s 2009 judgment, thereby re-criminalising gay relationships. In doing so, the Supreme Court of India stands apart — in disgraced isolation — from the judiciary in every other democracy in the world — including developing countries like South Africa, Nepal, Mexico, and Brazil.

In throwing the ball back to the executive branch, the judges sought to couch their decision in terms of showing constitutional deference for the role of the executive. The Supreme Court however, has never shown hesitation in striking down central and state laws and has been perfectly willing to create laws (mostly good) out of thin air, such as the recent judgment banning criminals from contesting elections. In this particular case, the Indian government’s final submission supported the repeal of Section 377 (that is, supported decriminalisation of gay relationships). This would indicate that the deference to executive authority was a fig leaf — enabling the justices to render a regressive and prejudiced decision without overtly appearing to do so. The news media rightly greeted the ruling with headlines like “SC: Gay sex illegal” and “Gay Sex is a criminal offense rules Supreme Court”. For once, the media’s inability to handle nuance is working in favour of truth.

Section377

While India’s brave community of LGBT activists and their heterosexual allies will continue to fight for equality — one that they will doubtless win in the long run; in the short term, this decision does real damage to the lives of gay people who are out or in the closet. It will expose lesbians and gays to even more harassment and persecution from the police; give fresh institutional cover to discriminatory practices in every aspect of life — housing and employment among others, and could shrink the already rather limited spaces that the LGBT community has carved out for themselves in public life.

Today, the Supreme Court of India has abjectly failed in its fundamental duty to protect the fundamental rights of an individual and of minorities. Here’s hoping Justices Singhvi and Mukhopadhyaya will see the repudiation of their reasoning by the same Supreme Court in their lifetimes.

(Abhay Prasad is a graduate of IIT Bombay and IIM Ahmedabad and a former volunteer editor of Trikone Magazine, the oldest South Asian LGBT magazine in the U.S. His blog is here.)

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Human Rights Supreme Court of India

Supreme Court’s sexual harassment regulations should not be limited to the Court’s precincts

NoticeAndStayAdityaVerma_SupremeCourtcolumn“No woman shall be subjected to sexual harassment at the Supreme Court of India precincts”, proclaims Regulation 3 of the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (“the Regulations”). The Supreme Court of India notified the Regulations in exercise of its administrative jurisdiction. They are now in force and apply independent of other laws that may apply, such as the yet-to-be-notified Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

SexualHarassmentAtTheWorkplaceMOOC2The Regulations apply to everyone, not just lawyers (although the definition of aggrieved woman does not include “any female who is already governed by the Supreme Court service regulations”). They are significant because they acknowledge that the sexual harassment of women in the professional environment of litigation is a real problem, especially because litigation has traditionally been a heavily male-dominated profession. But do the Regulations go far enough?

The GSICC

A ten-member Gender Sensitisation and Internal Complaints Committee (“the GSICC”), headed by Justice Ranjana Prakash Desai, has been constituted under the Regulations. The GSICC (through an Internal Sub-Committee of three members constituted in relation to any particular complaint) inquires into complaints of sexual harassment. Such inquiries must be completed within ninety days.

JusticeAKGanguly_sexualharassmentallegations.jpgUpon completion of the inquiry, if the complaint is found to be genuine, the GSICC has the power to admonish and also publish such admonition. It can also take other necessary steps to prevent or prohibit future harassment by placing appropriate restrictions on contact between the complainant and the respondent.

Crucially, for deterrence, the GSICC can recommend to the Chief Justice of India, that other orders be passed against the respondent, including orders to debar the respondent’s entry into the Supreme Court precincts up to a maximum of one year. It can also recommend the filing of a criminal complaint and a complaint to a disciplinary authority (such as a bar council). A person aggrieved by an order passed (or not passed) by the GSICC can make a representation to the Chief Justice of India to have it set aside or modified.

Simple and flexible procedure

SupremeCourt_SexualHarassment_Regulations_SupremeCourtofIndiaprecincts.jpgThe standard of proof required for the inquiry procedure is not expressly specified. The inquiry however, has the trappings of civil proceedings with purely civil consequences, which indicates that the normal standard of proof in civil cases would be applicable, that is, the preponderance of probabilities.

The Regulations provide for a relatively simple and flexible procedure for the GSICC and the Internal Sub-Committee. It is appropriate that the GSICC will always be headed by a judge of the Supreme Court as that can ensure consistent adherence to the principles of natural justice and fair play. There may often be an imbalance of power between the complainant and the respondent, which makes it doubly important that the procedure is kept uncomplicated.

While a forensic examination of the Regulations will have to be more detailed, a couple of aspects that may scupper the efficacy of the Regulations in the long term are highlighted below.

Applicability of the Regulations is restricted to the ‘Supreme Court of India precincts’

This is narrower than the concept of ‘workplace’ contemplated under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (and also under the guidelines laid down in Vishaka v. State of Rajasthan. “Workplace” need not be restricted by a brick-and-mortar interpretation, given that sexual harassment has more to do with the relationship and power dynamic between people than the physical space they occupy.

A more considered approach may have to be taken to identify those categories of persons whose relationship with each other has a relevant nexus with the Supreme Court as a workplace, in order that it is appropriate for the administrative jurisdiction of the Supreme Court to extend to their conduct beyond its precincts. An allegation by an intern against a judge of sexual harassment in a hotel room, as a case in point, may well fall outside the purview of the Regulations altogether (See for reference, the amicus petition submitted by Lawyers’ Collective).

Definition of sexual harassment and the scope of the inquiry

In what may be an inadvertent oversight, if a literal interpretation is given to Regulations 2(k)(x) – 2(k)(xiii), the following acts may amount to sexual harassment under the Regulations even if they are noJusticeRanjanaDesai_SupremeCourt_SexualHarrassmentComplaintsCommitteet sexually motivated in any manner:

– ‘implied or explicit promise of preferential treatment in her legal career’

– ‘implied or explicit threat of detrimental treatment in her legal career’

– ‘implied or explicit threat about her present or future legal career’

– ‘interference [sic] with her work or creating an intimidating or offensive or hostile work environment for her’

Of course, such acts, if sexually motivated, should fall within the definition of sexual harassment. However, the definition as it currently stands does not require them to be so motivated.

Further, the interpretation of the Regulations vis-à-vis the definition of sexual harassment and the scope of enquiry by the GSICC may also pose problems. For example, sexual harassment can occur via text and electronic messages (Regulation 2(k)(v)). It is difficult to reconcile this with an inquiry whose scope is restricted to sexual harassment ‘at the Supreme Court of India precincts’. It would be impractical to seek proof that such text or electronic messages were either sent from or seen within a particular physical space. Regulation 2(k)(vi) includes ‘stalking or consistently following aggrieved woman in the Supreme Court precincts and outside’, which appears to be incongruous with the geographical limitation otherwise placed on the scope of the complaint or inquiry.

Finally, there may be a day when laws and regulations against sexual harassment will be gender-neutral in all respects.

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

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Human Rights

Child soldiers are the victims of horrific war crimes under international law

SuhasaniRao-Kashyap.jpgThe history of the presence of children in armed conflict is as old as human civilisation. From Ancient Greece to the Middle Ages in Western Europe, children as young as ten have been actively conscripted into armies. They have been present in armed conflict in three roles — as baggage, that is, as members of families that tagged along with armed forces on military campaigns; as providers of services to armed forces in various capacities such as cooks, charioteers, and servants; and lastly, as direct participants in hostilities. Whether participants in armed conflict or just suffering its effects, children are the victims.

Why are children drawn into armed conflicts? To start with, they are very obedient. They are docile and do not question orders. Fear induced by threats of abuse and physical and sexual intimidation works far is far more effective on young and impressionable minds. More disturbingly, child soldiers are often drugged to create dependency-induced obedience. Children also need less food. With modern lightweight weaponry, children can also be armed to the teeth and require far less training than adults. The most soul-wrenching aspect of this evil however, is that children do not have a developed sense of morality. Morality is a product of conditioning and development. Children deprived of circumstances that provide this very necessary moral compass can be moulded into ruthless killing machines, remorseless and empty of guilt. Using children in armed conflict is unfortunately, a very profitable exercise.

Image above is from Wikimedia Commons and has been published under a Free Art License.
Image above is from Wikimedia Commons and has been published under a Free Art License.

Modern international law prohibits the presence of children in armed hostilities. Since the Second World War, humanitarian law and the law of armed conflict have evolved constantly to provide greater protection to the most vulnerable and most affected members of society during war.

Today, it is generally accepted that children are not to be recruited into armed forces for any reason. However, international law remains divided on the issue of who exactly a child is.

On one hand, the First Additional Protocol to the four Geneva Conventions of 1949, at Article 77 (2), applicable to international armed conflict states:

“The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.”

Similarly, the Second Additional Protocol to the Geneva Conventions, at Article 4 (3) (applicable to non-international armed conflicts), states:

“Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”.

These Protocols, read with the four Geneva Conventions, form the core of modern international humanitarian law.

Apart from humanitarian law, the prohibition on the conscription of children below the age of fifteen has also found distinct mention in international criminal law. The Rome Statute that governs the ICC, at Article 8(2)(b)(xxvi), regards “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” as a war crime.

The African Charter on the Rights and Welfare of the Child, at Article 2, on the other hand, unequivocally defines a child as “every human being below the age of 18”. At Article 22(2), it clearly mandates State Parties to ensure that children do not participate in armed hostilities. Further, children cannot be recruited into armed forces.

In 2007, under the aegis of UNICEF, seventy-six member countries adopted the Paris Principles and Guidelines on Children Associated with Armed Conflict or Armed Groups. At Principle 2, a child is defined as “any person less than 18 years of age”. This is in keeping with the United Nations Convention on the Rights’ of the Child that entered into force in 1990. At the outset, in Article 1, the Convention defines a child as one who has not attained the age of eighteen or the age of majority under the law to which the child is subject.

As is evident, international opinion is divided on the age at which children achieve majority. In spite of these differences however, it can be said that it is now a principle of customary international law that children must not be recruited into armed forces and must not be permitted to participate in hostilities – directly or indirectly.

A child in a rebel camp in the Central African Republic. Image above is from Wikimedia Commons and has been published under a CC BY-SA 2.0 license.
A child in a rebel camp in the Central African Republic. Image above is from Wikimedia Commons and has been published under a CC BY-SA 2.0 license.

The past three years have seen a resurgence of public interest in the involvement of children in armed hostilities. On July 10, 2012, Thomas Lubanga Dyilo became the first person to be convicted by the International Criminal Court (“ICC”) for war crimes, crimes against humanity, and the conscription of child soldiers in armed conflict. He is serving the last eight years of his fourteen-year sentence.

Last year, a short film based on child soldiers and the hostilities in Uganda created ripples in the international online community. It brought to light Uganda’s Joseph Kony and his Lord’s Resistance Army.

In 2009, Human Rights Watch published its Global Report on the situation of child soldiers. You can read more about it here. Similarly, UNICEF publishes an annual Fact Sheet on the phenomenon, and tracks governmental response to the situation across the world. Interestingly, it is Burma (Myanmar) that seems to have the largest number of child soldiers – about 70,000 of them in its army of almost 350,000 members.

Most recently, the Appeals Chamber of the Special Court of Sierra Leone upheld the conviction of Charles Ghankay Taylor of Liberia on eleven counts of war crimes, crimes against humanity, and other violations of international law, including the use of child soldiers in armed conflict. Charles Taylor was one of the first leaders of armed forces in Africa to not only conscript children (mostly between the ages of five and seventeen) but to have dedicated armed Small Boys’ Units and Small Girls’ Units in his army.

Under international humanitarian law and international criminal law today, child soldiers are not seen as perpetrators of war crimes but as the victims of the most heinous of such crimes. While the international community debates the exact definition of a child, these young ones suffer in the midst of some horrific armed hostilities.

(Suhasini Rao-Kashyap is part of the faculty on myLaw.net.)

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Human Rights

Namita Wahi: New land acquisition law is a step towards creating a “culture of justification”

NamitaWahi_podcast_LandAcquisitionResettlementAndRehabilitationBill2013Land acquisition is always a controversial issue in countries with aspirations of rapid economic growth, where land is scarce. A few weeks ago, India came closer to replacing the 119-year-old Land Acquisition Act, 1894 (“the 1894 Act”) with the Land Acquisition (Resettlement and Rehabilitation) Bill, 2013 (“the Bill”). The Bill has cleared both houses of Parliament and will soon become law. Namita Wahi, a Fellow at the Centre for Policy Research and an S.J.D. Candidate at Harvard Law School, spoke with us about the Bill.

Ms. Wahi said that the Bill was a step towards creating a culture of justification during the government’s forcible acquisition of property. Even though the Bill shifts the balance of power between the competing interests involved, the struggle amongst them will continue even after the Bill becomes law.

She spoke of the shifting political, economic, and legislative contexts in which the 1894 Act operated, the main drawbacks of that law, and how the Bill has tried to remedy these problems. The Bill tries to expand the number of persons who are recognised to have interests in the land being acquired, limit the reasons for which government can acquire land, limits the government’s ability to invoke “urgency” and bypass the safeguards under the law, and provides for higher compensation. She also identified the exemption granted to the laws applicable to several sectors such as electricity, railways, coal, and mines from the provisions of the law as a major drawback and cautioned that the layers of bureaucracy proposed by the Bill may have unjust outcomes.

Ms. Wahi’s doctoral dissertation is on “The Right to Property and Economic Development in India”. She has written extensively on the Land Acquisition Bill and the history of the fundamental right to property, including here, here, here, and here.

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Human Rights

Seeking more out of food security

NationalFoodSecurityAct_VaibhavRaajAlong with many African countries, India stands at the verge of facing “extremely alarming” levels of hunger in its population and does not fare much better than Bangladesh or Nepal (see map below). According to statistics from the World Bank (see here), forty-eight per cent of children in India are underweight while only twenty-nine per cent in Sri Lanka are. Forty-six per cent of children in India are stunted and sixteen per cent are wasted but for Sri Lanka, these numbers are at fourteen per cent and fourteen per cent respectively. India’s infant mortality rate (sixty-two per cent) is much higher than any other county in South Asia except Pakistan. Excluding similar human development criteria from accounts of development and growth is a cruel ideological sleight of hand.

GlobalHungerMap

India is also home to some of the world’s largest food schemes. They include:

– Entitlement feeding programmes such as the Integrated Child Development Scheme for all children under six, and pregnant and lactating mothers; and the Mid Day Meal Scheme, for all primary school children.

– Food subsidy programmes such as the targeted public distribution system (“PDS”), which delivers thirty-five kilograms of subsidised food grains each month and the Annapurna scheme, under which ten kilograms of food grain are distributed to the destitute poor each month.

Employment programmes such as the National Rural Employment Scheme, which provides hundred days of employment at minimum wages.

Social safety net programmes such as the National Old Age Pension Scheme featuring a monthly pension for those below the poverty line and the National Family Benefit Scheme featuring compensation in case of the death of the breadwinner in families below the poverty line.

It is no secret that the implementation of these schemes has been marred by large-scale corruption and inefficiency. There are parts of the country where people received their first ration cards as late as 2006-07. All of us were also appalled at the tragic poisoning of children’s mid-day meals in Bihar.

At the same time, some state governments have been able to significantly improve upon these central schemes and deliver much-needed benefits to the people. The picture would be incomplete if we were to overlook the successful working of the PDS in Chhattisgarh and Tamil Nadu and many other parts of the country where at least half the monthly nutritional requirements of a household are met by the provisions from the PDS. Therefore, strengthening government intervention based on such successes is a workable and accountable solution to hunger and malnutrition.

A landmark in the way to resolve the artificially constructed “food crisis” in India has been the Supreme Court’s interventions in the PUCL case since 2001. The longest running mandamus on the right to food in the world, this case has provided civil society an anchor to both engage and confront the State on issues of food insecurity and employment. It has been successful in making the discourse of food security one of the most prominent concerns of policymakers. The case has resulted in:

– a universal MDMS and ICDS. 120 million children get school meals;

– restricting the lowering of the below-poverty-line quotas by the government of India;

– increasing the off-take of subsidised food grains through the targeted public distribution system;

– increasing the budgetary allocation for the ICDS and old age pensions threefold; and

– the passage of the National Rural Employment Guarantee Act, 2005.

Even as these attempts at reforms in governance and increase in government accountability have transformed all food-related schemes into legal entitlements, we are still short of achieving what can be called a right to food. The National Food Security Bill, 2013 that has now been passed by the Parliament fails to universalise measures for ensuring food security for the entire population. There can still be conspicuously unfair errors of exclusion, as the criteria for identifying the beneficiaries of this law remain unclear. Moreover, the provisions of this Act still focus on individual redressal rather than systemic changes. Some campaigners for food security are also concerned that even the limited achievements of the new law are largely an outcome of judicial activism — a fact that does not sit comfortably with our aspirations of a popular democracy.

The popular mobilisations on the right to food are a confluence of diverse interests that have arrived at the consensus that the right to food is more than just about food. The campaign for it has worked closely with movements for government accountability, right to work, gender justice, and equitable access to health and education. It is only in the fulfillment of all these requirements for a life with dignity that something like a right to food will actually be effective. This is a “broader view” of food security and the quest for it will remain unrequited unless all these goals are reached along with the universalisation of the right to food.

(Vaibhav Raaj is a PhD candidate at the Centre for Political Studies in Jawaharlal Nehru University, New Delhi.)