SCOTUS set to abort Roe v. Wade?

By Apurva Ambasth

The announcement of the Supreme Court on May 17, 2021 to take up the case of Dobbs v. Jackson Women’s Health Organization caused quite a stir. The case deals with the constitutionality of the Gestational Age Act, the 2018 Mississippi law that bans abortions after 15 weeks of pregnancy. The Court has stated that it would be dealing with the issue “whether all pre-viability prohibitions on elective abortions are unconstitutional?” The hearing of the case would commence in October and the Court is likely to deliver a judgment by spring 2022. This move is a direct, lethal threat to the landmark judgment of Roe v. Wade which guarantees the constitutional right to abortion throughout the United States. 

The District Court of Mississippi and the Court of Appeals for the 5th Circuit both being bound by the precedent held that states cannot ban abortions before the fetus becomes viable, i.e. around 24 -28 weeks. However, Judge James Ho, a conservative Trump nominee beseeched the Supreme Court to overturn Roe v. Wade while he himself in the 5th Circuit had to follow precedent.  

This blog provides an insight into how the politicization of the Supreme Court will adversely affect the right to abortion. It addresses the question of the constitutionality of the Mississippi law in the light of Roe v. Wade. 

The Politicization of the SCOTUS 

The polarization of the partisan politics between the Republicans and Democrats has led to the issue of abortion being used as a litmus test for the appointment of judges. With the loss of liberals’ most powerful dissenter, Ruth Bader Ginsburg and Trump’s third appointment to the Supreme Court, the Court now has a 6-3 conservative majority. 

The dark legacy of the Trump era is manifested in its most alarming manner in the confirmation of Justice Amy Coney Barrett to the Court. Justice Barrett stated in her Senate confirmation hearing that she does not consider Roe to be a “super-precedent.” In accepting the nomination at the White House, Barrett explicitly stressed that Scalia’s “judicial philosophy is mine.” Barrett would mirror Justice Scalia, and thereby attempt to regress constitutional law and roll back abortion rights beyond contemplation. A dystopian world with practically no right to abortion would become the reality with 6 conservative Justices with tenets of Originalism guiding their decisions. Barrett has previously ruled in favor of restrictions on abortions in the cases of Box v. Planned Parenthood of Indiana and the Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana.

The Court has taken a peculiar and untoward move in taking up the Dobbs case reflecting its intentions of overturning Roe. In its usual course, the Court takes up only such cases that have created a circuit split, i.e. the cases that have divided the lower courts on a particular constitutional issue. However, in the Dobbs case, no circuit split was witnessed. With 4 judges consenting to grant a Certiorari, and a conservative majority the grim repercussions of a highly politicized, changing court could lead to a grave miscarriage of justice.

The Constitutionality of the Gestational Age Act, 2018

The Gestational Age Act, 2018 posits to ban all abortions after 15 weeks of pregnancy with exceptions only for medical emergencies or in cases of “severe fetal abnormality.” The law does not lay down any exceptions for instances of rape or incest. Furthermore, physicians who perform abortions will be penalized with a fine and the revocation of their license. 

Looking back at the historic judgment of Roe v. Wade, the Court had recognized the fundamental constitutional right to privacy emanating from the Ninth and Fourteenth Amendment of the Constitution that encompassed the right of a woman to terminate a pregnancy. The court stated that a fetus was a “potential life” that did not have constitutional rights of its own. However, the right to abortion was not unlimited. 

The court had laid out the framework of the trimester test playing out the dichotomy of a woman’s right to terminate her pregnancy and the state’s right to protect potential life. Although the interests of the state lies in ensuring the health of the mother it also lies in protecting potential life. The trimester test made these separate interests ‘compelling’ at different points in the gestation period. In the first trimester, the woman’s right to terminate her pregnancy is unlimited and state cannot interfere at all. In the second trimester, the state may impose regulations concerning the health of the pregnant woman. However, in the third trimester once the fetus becomes viable at about 24-28 weeks the State’s power to control abortions becomes unfettered.

Nineteen years later, the Court in the case of Planned Parenthood v. Casey upheld Roe and replaced the trimester framework with the viability test stating that “that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions.” Furthermore, the test of “undue burden” was laid down which stated that any law that places “substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability” is unconstitutional. 

In June of 2020, the Court had struck down a Louisiana law in the case of June Medical Services v. Russo. The Louisiana Unsafe Abortion Protection Act required the physicians who performed abortions to have “active admitting privileges” and penalized those who performed operations without such admitting privileges. Chief Justice Roberts sided with the liberals in a 5-4 judgment relying on Casey and ruled that the law imposed an undue burden on women to get a pre-viability abortion.

Consequently, it can be made out that the Gestational Age Act is unconstitutional for it bans pre-viable abortions after 15 weeks and further imposes undue burden by penalizing physicians for performing operations after 15 weeks. The court must respect the principle of stare decisis following the 50 years old precedent of Roe and strike down the Gestational Age Act. 

Conclusion

With Texas following in on May 19 with its “heartbeat bill” that bans abortions as early as six weeks, the constitutional rights of women are in a state of critical jeopardy. The fight for women to have the right of bodily autonomy, their liberty and privacy as guaranteed by the Constitution is at stake. The misgivings about the conservative Court upsetting the precedent of Roe and inviting acute political backlash by the pro-choice advocates is not unjustified. If the Court upheld the pre-viability bans in Dobbs, it will lead to the slow death of Roe opening the floodgates for more stringent laws banning abortions altogether.

About the authorApurva Ambasth  is an undergraduate penultimate year student of B.A.LL.B.(Hons.) at NUSRL, Ranchi, India. Her areas of interests include human rights, criminal, and international law.

Weekly Round up of Human Rights News

In focus: Pride month 2021 and challenges for the LGBTQA+ community

By Vittoria Lucchese and Andrea Vremis

With Pride month starting in the UK and in many other countries all over the world, and with Covid-19 restrictions easing in many states, people have slowly been able to return to the streets to show their solidarity with the LGBTQA+ community and to advocate for their rights to freedom of expression and equality. Ostensibly, Pride marches across the globe represent a moment of euphoria and joy, but this sentiment does not reflect the reality of everyday life of the LGBTQA+ community who still unfortunately experiences a myriad of discriminatory practises.

Despite the progress made in the past few decades, members of the LGBTQA+ community still struggle to be accepted and respected in society and are discriminated against both private and public spaces. Only last week, a Brazilian 22-year old gay man was gang raped and mutilated in Florianopolis, raising concerns about the security of queer peoples in the country. This frightening and disturbing event was only one of the hundreds of hate crimes against the LGBTQA+ community that occur in Brazil every year and the thousands that are perpetrated across the globe.

What is even worse is that hate crimes are not often committed only on the streets, but also by governments in official settings. In late 2020, Poland permitted the arrest and the detention of activists who protested in favour of LGBTQA+ rights and facilitated the establishment of ‘LGBTQA+ free zones’ within its borders. In the USA, the Pentagon has recently refused to amend a policy issued by Trump administration in July 2020, which prohibits the exhibition of the rainbow flag, among other flags, in military installations even during the Pride month. This decision, which was reportedly made to avoid ‘other challenges to the rule’, ended up disappointing the members of the US military that identify as members of the LGBTQA+ community and have historically struggled to attain equal rights and treatment by their peers.

Even in health care, discrimination on the basis of gender is overwhelmingly evident. Members of the LGBTQA+ community are often denied appropriate reproductive and mental health care, or feel that they need to conceal their identity in order to access it. While several professionals in the health care sector have claimed that the only way to provide adequate care to the community is to open specialised clinics, many insurance companies, especially in the USA, still consider it to be non-essential care, making it difficult for the LGBTQA+ community members to reduce the costs of quality care. Furthermore, class and race often intersect with gender issues, making it harder for certain non-binary peoples i.e. BAME and faith communities, to find representation both within and outside the LGBTQA+ community than others.

Human rights organisations such as the Human Rights Watch have expressed their concern around these events, many of which continue to happen even in states where members of the LGBTQA+ community have achieved higher degrees of equality with their heterosexual peers. While also celebrating different genders, this month we should actively think about the challenges of the LGBTQA+ communities across the globe and support their efforts towards achieving equality and non-discrimination.

Other stories making the headlines around the world

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Africa:

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Midde East:

Death penalty for rape might prove counterproductive

By Ranu Tiwari

Introduction

Over the last few years, several steps have been introduced to allow for the imposition of death penalty for rape offences in India. The most notable examples include The Criminal Law (Amendment) Act, 2013 (death penalty was introduced in rape cases resulting in death or persistent vegetative state, and for repeat offenders) and the 2018 Criminal Law Ordinance (death penalty for rape of girls below the age of 12) passed by the Union. In 2019, the Andhra Pradesh legislature passed the ‘Disha Act’ which allows for death sentence for rape and gangrape. A year later, Maharashtra approved the controversial ‘Shakti laws’ containing similar provisions. The judicial trend, too, has been similar, meting out death sentences for the said offence. For example, 65% of death sentences in the year 2020 imposed by trial courts in India involved sexual violence crimes. As this trend to make stricter punishments for rape continues in India, no positive change has been noted in rape statistics. As per the National Crime Records Bureau, 2019, the conviction rate in rape cases was only 27.8%. This post argues that death penalty for rape offences can have a detrimental impact on deterrence and fair trial along with other adverse outcomes for the victims. 

The various problems

Photo by: Wesley Tingen on Unsplash

The biggest problem in imputing capital punishment is the absence of evidence based findings. There has been no causal relationship established between deterrence in rape and death sentences. The Law Commission of India in 2015 had stated that there is no empirical evidence to support the cause of death penalty. Similarly, Verma Committee, which was constituted by the Union government, had refused death penalty in rape cases, noting that it would be ‘a regressive step in reformation and sentencing’.

A possible and serious fallout of such measures includes a greater threat to the victim’s life. If the victim dies, the prosecution would be solely based on forensic evidence, instead of witness testimony, which would result in an even lesser chance of conviction given the problem of forensic labs in the country. There is also an increased chance of underreporting since the accused is known to the victim in most cases. In 94.2% of rape cases in 2019 in India, the accused was a known person. In such a scenario, there is a high probability that the victim or their family would prefer to drop the case than to put someone they know on death row.

Furthermore, the extent and exercise of judicial discretion plays a great role when it comes to capital punishment. In 2020, out of the 38 death penalty cases, the higher courts ordered acquittals and commutations in 5 and 17 cases respectively. In the same year, the Supreme Court dealt with total 5 such cases, of which 1 resulted in execution of four persons. This shows the lack of consensus when it comes to sentencing. Adding to this, most death row convicts belong to the marginalized social strata which can greatly impact the quality of their legal representation. 

Lastly, feminist critique of death sentence for rape has invoked the idea that rape is a crime equivalent to death and links the crime to a woman’s chastity and honour. The reflection of these gender stereotypes and patriarchal ideas often flow into the sentencing process in rape cases. Many feminist activists have therefore demanded focus on rehabilitative measures and on bringing social reforms in the wider gender discourse than employing retributive measures.

Conclusion 

Given the legitimate concerns that the various laws concerning death penalty raise, it is imperative that government legislations refrain from imposing such a punishment unless proper safeguards are introduced. It has been noted that the tendency of providing harsher sentences for rape is particularly strong in South Asia and is often employed by governments as a populist move. These measures can greatly impede an accused’s fundamental rights such as right to life and right to not be subjected to inhumane punishment. It can also affect his or her right to a fair trial as many countries do not employ transparent sentence measures and sometimes discriminate as well. 

As noted above, in India too, there are problems with respect to significant safeguards when it comes to capital punishment sentencing. At a time when majority of the countries in the world have abolished capital punishment and the global stance towards human rights has been strengthening, the Indian governments’ measures (both Union and state) to introduce such punishments is nothing but a short sighted move. It is high time that India moves towards rehabilitative and reformative approach for offenders. The need is to focus upon strengthening the implementation of existing procedures for rape victims, bringing proper sentencing guidelines and introducing a victim-centric approach in the criminal justice system. 

About the author: Ranu Tiwari is a fifth-year undergraduate student, pursuing B.A. LL.B. (Hons.) degree at Maharashtra National Law University, Nagpur. Areas of interest include Human Rights Law, Constitutional Law and International Law.

Weekly Round up of Human Rights News

By Andrea Vremis

World

Africa

Europe

Middle East

An Academic – She

She tugged at the bottom of her dress and readjusted the belt that sat around her waist. Maybe this wasn’t the right outfit after all. She had been debating for the past few days what to wear, all the time feeling guilty that she was giving this much thought to it. She was being invited to participate in this meeting because of her expertise, not her looks.

She had considered the easiest option: white shirt, black blazer, tapered trousers. But she had also wanted to be proud of her femininity, to feel the confidence gained through wearing something she liked. The knee-length black dress wasn’t too showy but was flattering enough. The tights were added as a precaution, she didn’t want to worry that she had missed a spot when shaving.

Her stomach knotted as she pushed the conference room door. A moment of panic, as she looked around and saw everyone was comfortably chatting to someone. She smiled generically to nobody in particular and went to place her bag in a free seat at the roundtable. She looked around and saw one other woman in the room. They were vastly outnumbered by the men in white shirts, blazers, and tapered trousers. The woman was older, confident, a well-respected expert. A scarf was draped casually across her shoulder, with two subtle bracelets that jangled when she waved her hands to emphasise the point she was making. 

Someone standing near her made a comment about how hot it was in the room, and someone else made a half-hearted attempt to open the window. It wouldn’t budge. She knew this building, with its “smart” temperature regulator – the windows opened only when they saw fit, designed to regulate the ideal body temperature of a reptile. 

“Oh you can manually override it at the control near the door,” she offered. “Here, I’ll do it.”

She went over to the control and pressed the right button, and the windows reluctantly opened. A couple of relieved sighs. Three people standing nearby thanked her politely, then turned their backs to her. 

“Oh god they think I work here. That I’m the assistant or something. I shouldn’t have said anything about the windows.”

She quickly tried to distance herself from the control panel, walking over to the safe space that was the long table with tea and coffee and biscuits. Here you could occupy your hands without having to make eye contact, and perhaps strike up small talk that would lead to more interesting conversation. 

The man in front of her lifted to pour milk into his watery coffee, and realised the jug was empty. He turned around, jug in hand, and caught her eye, his mouth half open as if to say something. She looked at him, horrified. What would she say if he asked her to refill it? Perhaps she could walk out with the jug and just not come back.

Uncertainty crossed the man’s faced as he looked at her. He then closed his mouth and put the jug back on the table. Watery coffee without milk it would be.

She grabbed a ridiculously small mug, and decided, arbitrarily, to go for tea. She faffed around with the teabag and spoon for a bit, before plopping the soggy bag in a bowl that had been designated as the bin. 

“I don’t even like tea,” a voice next to her stated. “It’s just the lesser of two evils. Did you know they call these things ‘urns’? Is this my grandmother’s ashes or coffee? Who knows?” 

She looked up at the suited male voice, and gave a small laugh of gratitude for the artful small talk, not because the joke was funny.

“I know,” she replied. “Yet here we are, making sure we get a cup before it’s all gone.” 

As people pottered over to their chosen seats and individual conversations died down, the meeting moderator decided it seemed like a good time to start. Introductions were made, and it was publicly confirmed that she was, indeed, not an assistant.

They had been asked for the first session to each give a five-minute presentation based on their area of expertise. The moderator read out the order of the presentations, and reminded everyone to stick to their allocated time, half smiling reproachfully as if to some tired inside joke. She was listed to present last, after the Shoulder Draped Scarf woman. 

“Last but by no means least,” the moderator turned to her and smiled. “Sorry, we seem to have run out of time, if you wouldn’t mind wrapping up fast so we can have our coffee break.”

She went through her well-rehearsed presentation, skipping the part she had highlighted for this purpose. The part of her work she could skip in case they ran out of time. Everyone’s eyes darted to the door as the catering staff came in quietly through the door to replace the coffee table cornucopia. The milk jug was refilled.

The second hour promised to be more interesting, as they debated how their work applied to the new research paper. As discussions got under way, she forgot to feel uneasy as she became captivated by the subject matter. Unlike small talk, this was actually something she was good at. 

She raised her eyebrows as Watery Coffee man kept emphasising his unfounded argument, but she wasn’t quite sure how to phrase a possible comeback. She took quick notes, trying to figure out exactly why his pointed needed contesting and how. She hesitated to raise her name card to speak, still unsure.

“Look, what you’re saying just sounds wrong.”

Grandmother’s Ashes spoke up instead of her, and went on to confidently not give a good explanation as to why he was wrong.

She knew she could do better. If the others were speaking up with these poor arguments, surely she could get away with it too. So she raised her name card, her heart pounding in her chest.

She went over her argument, it wasn’t perfect but people nodded in agreement and the conversation went on. She began to feel more confident and spoke up more often, when she felt she had something valuable to say. She still double-checked that she knew how to defend her points before making them, and by the end of the two hour session her notepad was covered in bullet points and scribbles. 

They ended the meeting, and as they filed out of the room she struck up conversation with Shoulder Draped Scarf woman about one of the points she had raised earlier. She smiled, glowing, feeling in her element. She actually looked forward to the conference dinner. These were all people she could have interesting conversations with. 

After dinner they stood outside the restaurant, glass of wine still in hand, chatting. Three of the men lit a cigarette as they shared an anecdote about a previous conference they had attended together. She was craving a smoke but resisted the temptation to ask. One of the men was grinning as he explained how traveling to these meetings was always great because he got to have a night off from the wife and children.

“I mean, no offense,” he said, turning to her. “You’ll see, when you have children, you love them to bits but a night off every now and then is just heavenly.”

She gave an awkward laugh. She wasn’t sure she wanted children. Anyway why was he addressing this to her? She changed the subject with a smile, bringing up the point they had argued about in the meeting earlier. She felt relieved as the conversation caught on and they revived the debate, slightly less diplomatic now that wine and the night’s air had replaced the coffee and stifling room. 

She brought up a point she hadn’t dared to in the meeting, directly confronting Night Off From Wife. As he retorted, she stood her ground. His neighbour laughed, stubbing out his cigarette.

“You know you shouldn’t contradict a woman, mate.”

They all laughed, and the topic reverted to the man’s wife. 

Her chest stung, and a bitter taste replaced the wine in her mouth. The earlier confidence she had felt was gone, and she wished she wasn’t there. She turned and walked off, trying to act purposeful. She went over the day in her head, repeating to herself the words she’d said, the mistakes she’d made, what she could have done differently.   

Climate Change Litigation in India and Pakistan: Analyzing Opportunities and Challenges

 / ESSEXLAWRESEARCH

Photo by Cristi Goia

Dr Birsha Ohdedar, Lecturer in Law at the University of Essex, has contributed a chapter in the edited volume Climate Change Litigation: Global Perspectives (BRILL, 2021). The book brings together experts around the globe to analyse the role of litigation at the national, regional and international level in advancing efforts to tackle climate change.

Dr Ohdedar’s chapter, ‘Climate Change Litigation in India and Pakistan: Analyzing Opportunities and Challenges’, contextualises and analyses cases in India and Pakistan. Since the case of Asghar Leghari v Pakistanwhere a Pakistani farmer successfully petitioned the Court to hold the Pakistani government to account for its lack of climate action, the region has been of interest to lawyers, activists and academics. Ohdedar’s chapter looks at this case, and other similar cases in India, that aim to catalyse national level climate action. 

Ohdedar’s chapter goes beyond a focus on headline cases. The chapter analyses the development of litigation with reference to broader socio-political dimensions of litigation, environment and climate change in the region. The chapter highlights, for instance, that a narrow focus on climate change and emissions reduction can obscure livelihood, ecology, poverty and rights concerns. For instance, renewable energy development has often seen the dispossession of local communities of their land or destroying forest land. In many instances, courts have overlooked these concerns because of a narrow focus on emissions reduction and generation of clean energy.

The chapter also argues for future approaches that account for ‘litigation in the context of climate change’. These are cases dealing with mitigation and adaptation in substance but not necessarily expressly framed as ‘climate’ in their arguments or court decisions. Ohdedar draws on litigation concerning coal mining and drought relief showing how they actively shape climate-related concerns. These cases are often unaccounted in ‘climate litigation’ in scholarship, yet their impact for climate mitigation and adaptation is significant.

Accordingly, the chapter provides a fresh perspective to the current literature on climate litigation in India and Pakistan through a more focussed analysis of climate litigation in the domestic political and legal context within which such litigation takes place.

A version of the chapter is available for free from ResearchGate here.

No Workers Were Saved By the Drafting Of These Bills: An analysis of India’s recent labour law reforms

By Mehar Singh Dang

India’s status as a democracy is in jeopardy, and every day is a figurative race to the bottom. Inter alia, development is arrested, and the current government’s complacence is majorly to blame. Against this backdrop, we shall first discern the pattern of distracting the masses with one crisis, only to trigger another, which is observable in India today [I]. After this, we will delve into the new labour laws that have been passed in the country [II], while examining the aspects of minimum wage, strikes and social security.  

By Manjyot Singh, Astral Films, Singhu Border, India (published on 8 February 2021)
  1. ‘I’ll pretend to tend to soothe your burns, and stab you when you aren’t looking’.

The Indian government has been attempting to quell dissent of any sort for a while now. When it wants to advance a law that it knows shall be met with resistance, it weaves a web of deception for both, the masses and other parliamentarians. In a calculated fashion, it then passes the laws to push its own political agenda, despite the grim repercussions for its people. This pattern is discernible from various instances within the past year. 

The government passed the highly impugned black farm laws in the peak of the pandemic when it should have been focusing on rehabilitation of supply chains and mitigating the effects of the pandemic on the national economy. 

It also passed the questionable labour laws, discussed in this piece a day after the opposition walked out of parliament. The opposition declared a boycott due to insufficient and biased recognition by the Speaker of the House while debating the ‘black’ farm laws.

Come 2021, while February saw the entire nation tackle state sanctioned violence and malicious detentions and arrests surrounding the farmers’ protests, a new set of guidelines were passed for the organization of international conferences.Amidst this chaos, a new set of rules for permissible content on OTT platforms were also formulated and are currently in force. Resultantly, the content that classifies as ‘in keeping with the principles of the nation’ for both, academic, and recreational purposes shall be regulated by the government, which is in violation of the right of free speech and expression, as envisaged by the Constitution of India. 

The country’s current reality is that there is always a darker, uglier platoon of muzzlers of democracy, waiting to pounce, waiting for an opportune moment. 

2. Labour Laws of 2019 versus 2020

The stark contrast between the Labour Law Bills proposed in 2019 and 2020 itself is indicative of the government allowing itself to get power drunk, and the intoxication is intensifying at an alarming rate. 

The 2019 Bills stated that the Central government of India shall be the appropriate government for any central public sector undertaking. The 2020 Codes indicate that this status will be retained by the Central government even if its ownership in the undertaking changes eventually, and drops to less than 50%. This serves as testament to this government’s tendency to indulge in centralised and concentrated exercise of power, which is not in keeping with the tenets of the Indian constitution. 

The 2019 Bills proclaimed that all complications concerning the railway, mining, telecom and banking sectors are to be addressed by the Central government. The 2020 Codes state that the Central government shall be the deciding authority for any complication in any ‘controlled industry’. This ambiguous definition shall allow the government to further its rampage of privatisation in any sector that it fancies and render the workforce voiceless. 

Such a statement allows the Central government the leverage to intervene as and when they feel it is necessary to further their own interests. An unequivocal declaration of the sectors that fall under the purview of the Central government shall ensure that it does not transcend the confines of its chartered territory, and the State governments can also be held duly accountable. 

The 2019 Bills stated that any enterprise that housed more than one hundred employees had to mandatorily make provisions inter alia for holidays, shift rosters, termination of employment, attendance, leave conditions. The 2020 Bills Codes altered this requirement to be imposed on enterprises that employ over three hundred people. The implication of this is that the threshold of number of employees which merit provision of basic labour rights by the employer has been heightened, which means that small scale employers have been afforded more leverage to exploit the rights of their employees.

Resultantly, any enterprise in the Indian market that has less than three hundred employees can declare closure or retrenchment, without any accountability to the State or any obligation towards the workers whatsoever (such as a severance package or an opportunity for employment elsewhere). 

What is being disguised as provision of commercial flexibility to the undertakings of the market might have a catastrophic effect on the labour rights of the workers that are already minimal at best.

3.A. Minimum Wage Determination

“Labour” is listed in the concurrent list of the Constitution of India, which means that both the Central and the State government are to have a say in the regulation of the workforce in India This powerplay by the Central Government which “consolidates” numerous central and state laws, renders it as the sole decision maker, completely disregarding the State governments’ authority. 

This will also have a dire effect on the minimum wage determination that is currently carried out by each state individually. Once these laws are in force, the minimum wage that is determined by the Central government shall be applicable to every worker of the unorganised sector. 

This creates a seemingly “one-size-fits-all” type of approach that is bound to wreak havoc in the Indian workforce, given that the cost and way of living differs for every state in the country. A stipulated minimum wage determined by the Central government will inevitably cause unrest, because of the unilateral imposition being made by the Centre. This stipulation must be left up to the State governments, which will afford an opportunity for modifications and adjustments to be made by in conformity with the specific requirements of the workforce across the country. 

For example, the lifestyle and budgetary allocations of a daily wage labourer in Haryana, a state in North India is bound to glaringly differ from his counterpart in Chhattisgarh, a state in South-east India. This observation can be attributed to India’s diverse cultures, and varying ways of life, which also reflects on the cost of living for an individual living in different parts of the country. Thus, it is myopic for the government to turn a blind eye to this reality and try and impose a standard minimum wage applicable across the country.  

This development can be understood with the current government’s want for privatisation, with no consideration towards the ramifications thereof on the workforce of the country. Thus, in order to conveniently control the entire nation’s workforce from the metropolis in a centralised fashion, the Central government has decided to take reins in its own hands, and make a generalised prescription for the wages to be paid to workers of the unorganised sector across the country. 

Lest we forget that this is not the first time that the Central government has attempted to hijack a matter that is not constitutionally granted to its purview. The highly debated farm laws that principally fall under the ambit of Agriculture matters (Concurrent List) have also been passed by masquerading them as laws that classify as Trade matters (Union List). 

This discernible pattern of the Central government attempting to intervene in subjects that have not been envisaged under their purview by the Constitution of India, and make impositions in alignment with their vested interests is a warning bell; it must be understood as a harbinger of the micromanaging and stifling ways of the current government.

3.B. Practical cessation of strikes

The new Industrial Relations Code of 2020 also indicates a crackdown on the right of labour unions and organisations to carry out strikes and lockouts. Prior to the introduction of these Bills, it was mandatory for the organisation to give notice of its strike to the employer at least sixty days prior to their commencement when the commodity or service in question classified as a “public utility.[1]” 

However, by virtue of the new Bills, this requirement of notification being given to the employer is applicable to any strike being carried out, irrespective of the commercial or essential nature of the good or service. Once again, the furtherance of commercial considerations has prevailed over human rights given that workers are unable to express their affliction. 

3.C. Provision for Social Security

The new Social Security Code of 2020 indicates that the National Social Security Board shall act as the regulator for all complications and concerns surrounding the world of work in the country. The current composition of said Board comprises five representatives of aggregators, and five representatives of gig workers and platform workers, both nominated by the Central government, in addition to the Director General of the Employees’ State Insurance Cooperation and five representatives from the State governments. 

It is pertinent for the State to realise that the only method to alleviate the working conditions of members of the unorganised sector is to equate labour rights with human rights, in compliance with international standards; and ensure that a violation of the former is treated with as much gravity as that of the latter. To that end, the composition of the National Security Board must be amended to also empanel a human rights specialist to safeguard the rights of the workers in question.

The Social Security Code also envisions the establishment of a national fund that shall be directed to the welfare and protection of gig workers and platform workers. The irony however, lies in the fact, that it is the employers of these workers that shall have to furnish the resources for this fund, which means that these resources shall be pinched from the earnings of the workers in question. Hence, as opposed to the State assuring its workers of their social security, it shall make them pay for it.

Conclusion

India’s new laws for the world of work are in no manner envisioned to palliate the suffering of the working class. On the contrary, they have been drafted with the objective of crawling a few spots higher on the index for Ease of Doing Business and expanding the empires of a few business tycoons. The ramifications of these implementations shall not offer any upliftment to the workers of the unorganised sector. 

From the perspective of progress of the working class, these Bills are downright regressive and offer no hope for alleviation of their quality of life. These laws shall cause their cries to die as muffled echoes in the darkness of the State’s autocracy.

References

  1. Simon Deakin, How Should India Reform Its Labour Laws?, Economic and Political Weekly 48-55 (2015).
  2. Richard Mitchell & Petra Mahy, The Evolution of Labour Law in India: An Overview and Commentary on Regulatory Objectives and Development, Asian Journal of Law and Society 413-453 (2014).
  3. J.S. Sodhi, Labour Law Reform in India, Indian Journal of Industrial Relations (Special Issue on Labour Law Reforms in India) 100-117 (2014).
  4. Pravin Sinha, Representing Labour in India, Development in Practice 127-135 (2004).
  5. Supriya Routh, The Judiciary and (Labour) Law in the Development Discourse in India, Law and Politics in Africa, Asia and Latin America 237-257 (2011).
  6. Bruce Kaufman, Labour Law Reform in India: Insights from Tangled Legacy of Sidney & Beatrice Webb, Indian Journal of Industrial Relations 22,23 (2014).
  7. Zafar Hussain & M. Afzal Wani, Application and Enforcement of International Labour Standards in India: A Critique, Journal of the Indian Law Institute 577-593 (2011).
  8. Anamitra Roychowdhury, Effectiveness of Trade Unionism in a Globalised World: The India Case, Social Scientist 7-31 (2017).
  9. Romina Bandura & Casey Sword, India’s Future Workforce Trends: Challenges and Drivers, Center for Strategic and International Studies (2018).
  10. Sheila Bhalla, Notes on Indian Political Economic Policy, Employment, Labour and Related Outcomes, Social Scientist 21-28 (2018).
  11. J. John, Labour scene in India, International Union Rights (Focus on South East Asia) 9-11 (2003).
  12. Rajendra Prasad Pandey, Globalisation and Legal Protection of Labour in India, The Indian Journal of Political Science 133-144 (2010).

[1] Defined under Section 2(n) of the Industrial Disputes Act of 1947.

About the Author: Mehar Singh Dang, IV Year BBA LL.B. Hons

Implementing Human Rights Decisions: Reflections, Successes and New & Directions

 / ESSEXLAWRESEARCH

The Open Society FoundationBristol University and the Human Rights Law Implementation project recently launched its project on Implementing Human Rights Decisions: Reflections, Successes, and New Directions – a series of 11 posts, between February and March 2021, which seek to bridge the gap between academic and practice communities by offering short and accessible analyses of a critical phase in the strategic litigation process of human rights decisions.

Professor Clara Sandoval, from the School of Law at the University of Essex (and Co-Director of the Essex Transitional Justice Network), is a part of the Human Rights Law Implementation project and contributed a post on The Power of Hearings: Unleashing Compliance with Judgments at the Inter-American Court of Human Rights

In this, Professor Sandoval argues that while the dynamics of implementation are multi-factored and multi-actored, human rights bodies like the Inter-American Court of Human Rights do more than mere monitoring of orders; rather, they trigger and cajole implementation in different ways.

From Wikimedia Commons, the free media repository

The online page where all posts, and more on the project, can be accessed here. All posts are available in various languages (English, French and Spanish and, in some cases, also Russian). The following is a list of current posts – to read these please visit the project website here.

  1. Introduction Christian De Vos and Rachel Murray
  2. The Power of Hearings: Unleashing Compliance with Judgments at the Inter-American Court of Human Rights Clara Sandoval
  3. Taking Rights Seriously: Canada’s Disappointing Human Rights Implementation Record Paola Limon
  4. Reflections on the Role of Civil Society Organizations in Implementing Cases from the African Commission and Court Felix Agbor Nkongho
  5. Addressing Cote d’Ivoire’s Statelessness Problem: Utilizing Multiple Tools to Support Implementation of Judgments Amon Dongo and Alpha Sesay 
  6. Litigating Torture in Central Asia: Lessons Learned from Kyrgyzstan and Kazakhstan Masha Lisitsyna and Anastassiya Miller
  7. Some Justice out of Repression and Reprisals: On the Plight of Human Rights Defenders in Azerbaijan Philip Leach
  8. The Power of Persistence: How NGOs can Ensure that Judgments Lead to Justice Alice Donald
  9. How Can NGOs Push for Implementationand What’s Stopping Them? A Conversation with NGO Leaders in the Americas, Africa and Europe A conversation with Viviana Krsticevic, Gaye Sowe, and George Stafford facilitated by Anne-Katrin Speck
  10. A New Court for Human Rights Cases: The Court of Justice of the European Union Márta Pardavi and Kersty McCourt
  11. More than the Sum of our Parts: Reflections on Collective Implementation of Economic, Social and Cultural Rights Decisions Susie Talbot

Weekly Round up of Human Rights News

In Focus: The Arbitrary Arrest of Journalist Roman Protasevich – Latest in Belarus’s Crackdown on Freedom of Expression

By Andrea Vremis

On Sunday, Roman Protasevich, an opposition journalist in Belarus, was on a Ryanair flight from Greece to Lithuania which was forcibly diverted to the Belarussian capital, Minsk, where he and his girlfriend were detained. According to Rupert Colville, Spokesperson for the UN High Commissioner for Human Rights, this was ‘apparently under false pretenses and with the express purpose of capturing Mr. Protasevich’ and sparked international outrage with Mr. Colville stating that the ‘astonishing episode’ was ‘tantamount to an extraordinary rendition’. President of the EU Commission, Ursula von der Leyen, called for the immediate release of Roman Protesevich and his girlfriend, and condemned the ‘outrageous actions’ of the Lukashenko regime, with the EU closing its airspace to planes from Belarus and European airlines halting flights over BelarusOther Western leaders expressed their condemnation, and UN Secretary-General, António Guterres, was ‘deeply concerned’ by the incident. 

Sunday’s events did not constitute an isolated incident but were just another example of the regime’s attacks on freedom of expression and media freedom which have been mounting. Mr. Colville called it ‘a new phase in the Belarussian authorities’ campaign of repression against journalists’ and ‘a sign of an extremely worrying escalation in the crackdown of dissenting voices’ not only of journalists but also of human rights defenders and other civil society actors not just in Belarus, but also living abroad. As Mr. Colville explained, punishing a journalist simply for being critical of the regime goes against freedom of expression and is a violation of Article 19 of the International Covenant on Civil and Political Rights

Since last year, the human rights situation in Belarus, in particular in regard to civil and political freedoms, has been deteriorating. Belarus is an authoritarian state in which elections are openly fixed and civil liberties are severely restricted. Limited displays of opposition were once permitted as a way of improving relations with the EU and United States; however, in 2020 the regime resumed its crackdown on dissent. Following a fraudulent election that sparked huge anti-government protests, the government has increased its attacks on freedom of press, persecuting journalists, human rights defenders, opposition leaders and other civil society actors. 

Other stories making the headlines around the world

World: 

Africa: 

Americas: 

Asia: 

Europe: 

Middle East:

Risk Assessment Tools as a new challenge to the fundamental right of Free and Fair Trial

By Sahajveer Baweja

Risk Assessment Instruments (RAI) or Risk Assessment tools are a class of tools that are used in the criminal justice system based on the concept of data analysis. These tools are currently used mostly in taking judicial decisions and are preferred at the stage of determining punishments, convictions, and bails. The purpose of these tools is to identify the recidivism score of a defendant who is being accused and brought before the Court. These tools work as an actuarial assessment that determines firstly the defendant’s future risk for misconduct and the likelihood of whether the defendant will reoffend before the completion or during trial, and secondly the likelihood of the accused failing to present themselves at the trial.

These risk assessment tools predict and provide the results based on different factors associated with the individual; such as, age, sex, place of birth, history as an offender, past convictions, geography, family background, employment status, socio-economic status, etc. Thus, there is no doubt that for the same offense done in the same manner, two persons could be awarded different punishments based on the recidivism score.

Presently, these tools have held great promises and therefore they are now being used in many jurisdictions under different names.[1] However, a shadow of doubt has already been cast on the factor of accountability and prejudice. There is a fear that such assessment tools are in clear-cut violation of the right to fair trial and presumption of innocence. Supposedly, the data, used for analysis, has more cases of crimes committed by low-income people. This means that algorithms will take this correlation into consideration and then would associate that low-income people are prone to commit crimes. The outcome of such correlative insights is damaging as populations belonging to a low-income category, which have been historically targeted by law enforcement agencies, are at a higher risk of having a high recidivism score. 

Picture from the AlgorithmicJustice League, who are leading a cultural movement towards equitable and accountable AI

Recent research on investigating bias within these risk assessment tools analysed 7000 decisions  given by “Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool – that is a case management and decision support tool used by US Courts to evaluate the likelihood of an offender becoming a recidivist”. The report suggested that the predictions given by the COMPAS tool were biased and unreliable and that the number of false positives that the tool gave in the case of black people was very high than those given in cases of white people.

Another problem associated with the use of risk assessment tools is the incapability of providing a reason or explanation for giving a particular recidivism score. As there are no human judges in these cases who can give a reasoned decision, the individuals are succumbed to accept the summary decision given by these artificial intelligence tools. For example, in State v. Loomis[2], COMPAS sentenced the accused was to six years of imprisonment. The defendant claimed that the calculation of his recidivism score was too high, and it violated his right to due process, particularly because the assessment made by the COMPAS is unclear and its accuracy is impossible to challenge. 

Therefore, in total the defendant raised three important issues. Firstly “it violates a defendant’s right to be sentenced based upon accurate information, in part because the proprietary nature of COMPAS prevents him from assessing its accuracy; secondly, that violates a defendant’s right to an individualized sentence and thirdly it improperly uses gendered assessments in sentencing”.

The court however, dismissed all three points and held that the usage of COMPAS does not violate the due process. However, a conditional word was added that such a tool should be used ‘properly’. Moreover, the court held that for the purposes of sentencing, COMPAS should be considered, but it is not mandatory for the penalizing court to rely on COMPAS for the imposition of sentences. Therefore, other factors are to be taken into consideration and the recidivism score provided by COMPAS should only be used as one of the factors in awarding punishment.[3]

CONCLUSION

There is no doubt in stating that even top courts have shown the fear of using or relying on  risk assessment tools because of the implicit implications of data bias. These tools should act only as an aid to a judge rather than themselves becoming decision-makers. The integration of artificial intelligence within the judiciary runs the risk of introducing algorithmic bias in justice processes, as mostly all the decisions are taken arbitrarily without any reasoned decisions. Arbitrariness and equality are enemies of justice and such AI risk assessment tools constitutes a serious threat to the principle of due process – one that is deeply rooted in the criminal justice system. Without due process, there is a risk of arbitrary practices taking place that can jeopardize the human rights of individuals through the violation of equality and equal protection of the law. 

Lack of transparency and accountability presented through the integration of these tools makes the condition of sentencing unfair. Every person has the right to know the grounds or reasons for being given any sentencing. Punished a person without any reasoned decision, violates the principles of natural justice[4]. The constitutional protection of the individual cannot be allowed to be victimized in lieu of the need for a speedy trial. The Blackstone’s dictum which states that “Better that ten guilty persons escape than that one innocent suffer[5]” makes it clear that innocence has to be presumed unless some substantial evidence is produced to prove otherwise. Thus, using such tools violates the right to due process, the right to a fair trial, and the principle of presumption of innocence.


[1]M.E. Donohue, “A replacement for Justitia’s Scales: Machine Learning’s role in sentencing”, Harvard Journal of Law and Technology, Vol. 32, No.2, 2019, pp. 657-678. 

[2] State v. Loomis, 881 N.W.2d 749 (Wis. 2016). 

[3] “State v. Loomis: Wisconsin Supreme Court Requires Warning Before Use of Algorithmic Risk Assessments in Sentencing”, Harvard Law Review, Vol. 130, 2017, pp. 1530–1533. 

[4] V.S. Chuhan, “Reasoned decision: A Principle of natural justice’, Journal of the Indian Law Institute, vol. 37, no.1, 1995, pp. 92-104.

[5] A. Volokh, “N Guilty Men”, University of Pennsylvania Law Review, Vol. 146, 1997, pp.  173-216.

About the author: Sahajveer Baweja, 4th Year (B.A.LL.B.), Law Student at National University of Law, Patiala