International Human Rights Weekly News Roundup

by Pauline Canham

In focus

Amnesty International forced to cease operations in India

Amnesty International says it has been forced to end its operations in India, after “reprisals” from the Modi government.  Amnesty’s bank accounts were frozen without warning, in what it calls a “witch-hunt” by the Hindu nationalist government against human rights NGOs.  Amnesty’s senior director of research, advocacy and policy, Rajat Khosla, claimed they have been faced with “an onslaught of attacks, bullying and harassment by the government in a very systematic manner.”

Several raids have taken place on Amnesty offices since 2018 under accusations of money laundering – allegations the NGO strenuously deny.  The ministry of home affairs claim that Amnesty India has brought foreign funding into the country in a contravention of the regulations.  The ministry stated “the stand taken and the statements made by Amnesty International are unfortunate, exaggerated and far from the truth”.  Amnesty India’s executive director, Avinash Kumar, said that the Indian government is stoking a climate of fear, and ignoring “the human cost to this crackdown, particularly during a pandemic, and violates people’s basic rights.”

Fifteen international human rights organisations have condemned the move, pledging continued support for human rights defenders and NGOs critical of India’s nationalist government crackdown.  Human Rights Watch stressed the need for a “robust, independent, and vocal civil society” which it said is “indispensable in any democracy to ensure a check on government and to hold it accountable”.

Julie Verhaar, Acting Secretary General of Amnesty International said “This is an egregious and shameful act by the Indian Government, which forces us to cease the crucial human rights work of Amnesty International India for now.  However, this does not mark the end of our firm commitment to , and engagement in, the struggle for human rights in India.”

 

UK exploring options to send asylum seekers to detention centres overseas

The Guardian revealed yesterday that it has seen documents that suggest Foreign Office officials have been asked by Downing Street to examine the possibility of sending UK asylum seekers to detention centres in Morocco, the Maldives and Papau New Guinea.  It has also come to light that the Home Secretary, Priti Patel has been looking at the idea of constructing detention centres on the islands of Ascension or St Helena, in a similar model to the Australian asylum processing centres on Naura and Manus.  Ascension and St Helena are part of an isolated British Territory in the South Atlantic. 

The Shadow Home Secretary, Nick Thomas-Symonds, called the idea “inhumane, completely impractical and wildly expensive”.  Another option being considered is to accommodate asylum seekers on disused ferries anchored off Britain’s coast, converting them into processing centres.  One Conservative MP said that the UK needs to find a “civilised version” of the Australian model.  But experts familiar with Australia’s immigration system have warned that implementing such proposals could cause a “human rights disaster”.

 

Other stories making the headlines around the world

 

World

• WHO promises robust investigation into sexual abuse allegations against workers in the DR Congo (UN News)
• Flooding leaves South Sudan facing threat of catastrophic hunger levels (UN News)

Americas

• UN Rights expert urges Columbia to suspend Cerrejon mining operations (Reuters)

Asia

• Pompeo urges Vatican to condemn human rights abuses in China (The Independent) 
• Rio Tinto accused of poisoning rivers in Papua New Guinea (BBC)
• Thailand: More than 100 companies pledge to strengthen women’s economic empowerment (UN News)
• India: UN expert raises alarm over mass eviction of Delhi railway track dwellers (UN News)

Europe

• Catastrophe for human rights as Greece steps up refugee ‘pushbacks’ (The Guardian)
• Cyprus: Asylum seekers summarily returned (Human Rights Watch)
• Belarus opposition and Polish LGBTI activists nominated for human rights award (Euro News)
• The EU’s accession to the European Convention on Human Rights (Council of Europe)

Middle East

• Iran’s Zarif slams US and Europe for human rights scrutiny (Al Jazeera)
• UN Middle East Envoy urges Israeli and Palestinian leaders to engage ‘before it is too late’ (UN News)

Inaccessibility to online learning in India: Re-imagining a rights-based approach

by Shrutika Pandey and Rongeet Poddar

The COVID-19 pandemic has had a disruptive impact on the education sector in India, as it has around the world.  The imposition of a prolonged nationwide lockdown has rendered traditional classroom learning impracticable and has led to the advent of online education as an expedient tool to prevent further reduction of teaching hours. However, the adoption of e-learning tools raises concerns of inequitable access and further widening of the socio-economic divide.  In this article, the authors argue for the adoption of a rights-based approach by the Indian state to address the widening digital divide and facilitate educational attainments.

Deeply entrenched inaccessibility

National Statistical Office data (2017-18) reveals that just 10.7% of households in India have a computer while only 23.8% enjoy access to internet facilities. The rural areas and the poorest households particularly bear the brunt of unequal access. Furthermore, the national figure for persons of above the age of 5 with the ability to operate a computer and the ability to use the internet also stand at a lowly 16.5% and 20.1% respectively.

A recent survey conducted in the state of Bihar has also revealed how structural factors constrain access. In many instances, the children in the family do not retain control over devices such as smartphones which are bare-minimum for online classes. The survey has also highlighted how gender-based disparities restrict access to e-learning for children. A disproportionate burden of the household chores often limits the participation of girls. Likewise, the boys in the family are also engaged in work as the pandemic has had an adverse impact on the family’s economic well-being.

Children with special needs are excluded from remote learning while many with disabilities are also struggling to attend online classes.  As a consequence, distance-learning has increased the likelihood of drop-out rates.  The integration of a rights-based paradigm must therefore be integral to an inclusive educational policy to bridge the digital divide as outlined by UNESCO.

Legal regime in India

The Karnataka High Court in India has recently issued an order to enable private schools to conduct online classes, limiting the screen-time in consonance with the Pragyata guidelines for remote learning, issued by the central government. The order was issued in response to a blanket ban on online education by the state government. The government decision had been challenged to be violative of Article 21A of the Constitution of India.

Article 21A (added by the 86th Amendment to the Constitution, 2002) imposes a mandate on the state to provide free and compulsory education to children between the ages of 6 and 14. The Right of Children to Free and Compulsory Education Act (hereinafter mentioned as the Act) was enacted in 2009 to pursue the goal of universal education in India. However, the current state of affairs demands a thorough re-evaluation of the existing regime in acknowledgement of access disparities. The definition of ‘access’ must be evolved from mere physical proximity to schools to include social, geographical and qualitative access to a formal, fully functional school with infrastructural facilities, learning materials and human resources.

However, access to internet and other e-learning facilities has been left outside of the purview as the Act did not envisage such a prolonged phase of social distancing, enforced due to the pandemic. Thus, the law is rendered ineffective under the present circumstances, failing to ensure effective and equitable access to online learning tools.

Education as a human right

An effective and equitable access to education requires policymakers to reimagine education as a human right in India.  Section 9 (c) of the Act lays down that children belonging to disadvantaged groups must not be discriminated against and prevented from completing elementary education ‘on any ground’.   A liberal interpretation of the provision offers a wider export to the phrase ‘on any ground’ to include digital access in its ambit. Moreover, Section 12(1) (c) requires unaided schools to provide ‘special facilities’ for students belonging to the economically weaker sections admitted in their schools and claim reimbursement for the same from the Central Government.

Lastly, the Right of Persons with Disabilities Act, 2016 also requires educational institutions and state authorities to provide ‘inclusive education’ to disabled children. The statutory mandate must be read in the context of a Kerala High Court decision, upholding a student’s right to access the internet within the right to life under the scope of Article 21 of the Constitution.  The decision recognizes that internet connectivity is indispensable in the pursuit of holistic education.

The ‘balancing of rights’ approach is integral to adopting an inclusive education policy in the immediate future.  The concept is not alien to Indian constitutional jurisprudence and has been affirmed in a landmark Supreme Court judgement which unequivocally pronounced the right to privacy.  The apex court in India clarifies that that a balancing test must not be restrictive such that it constrains the effective operation of a fundamental right.

In the instant case, the fundamental right to free and compulsory education under Article 21A of the Constitution must be reinforced by the anti-exclusionary principle enshrined within the right to equality under Article 14.  The provision of education has to be reinvigorated by the guarantee of non-discrimination such that no child is left to bear the brunt of digital divide.  The disparate impact doctrine adds another dimension to the right to equality as it prohibits indirect discrimination resulting from facially neutral policies.  India’s constitutional jurisprudence thus bears immense potential to reinvigorate the right to access education if a guarantee of internet access and non-discrimination is read into its ambit.

International standards

The judiciary in India has often resorted to international law instruments to broaden the scope of fundamental rights in India.  The goal of enhanced accessibility in education has been underlined in the Committee on Economic, Social and Cultural Rights (CESCR) General Comment 13.  Education is recognized as a human right under Article 26 of the Universal Declaration of Human Rights (UDHR) and Articles 13 and 14 of The International Covenant on Economic, Social and Cultural Rights (ICESCR)  It serves as a vehicle for empowerment and bears the potential to lift ‘economically and socially marginalized’ children out of poverty.  General Comment 13 highlights the importance of computer facilities and information technology for an educational institution. The CESCR urges state parties to be flexible to ‘adapt to the needs of changing societies’. However, the insistence on ‘adaptability’ cannot compromise a state party’s immediate obligation to ensure accessibility in violation of the principle of non-discrimination.  Article 28 of the UN Convention on the Rights of the Child (CRC) also recognizes the right of children to education on the basis of equal opportunity.

The existing jurisprudence on an inclusive education also requires states to ensure effective participation of children with disabilities in remote learning.  In International Association Autism Europe v. France, the European Committee of Social Rights held that France had failed to significantly raise the proportion of children with autism being educated in either general or specialist schools in comparison to other children. Limitation in accessibility constituted indirect discrimination and was thus held to be a violation of the right to social integration for disabled children as mandated under the revised European Social Charter.

The Committee relied on the judgment of the European Court of Human Rights in Thlimmenos v. Greece which had laid down that the principle of non-discrimination under Article 14 of the European Convention of Human Rights ‘is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’.  CESCR General Comment No.5  further requires states to provide necessary support to bring persons with disabilities ‘up to the same level of education’ as their non-disabled peers.

 

Conclusion

India’s National Education Policy, 2020 offers a cue to overcome the insurmountable barriers of exclusion in the long run as it seeks to adopt technological tools that would enable better participation and improve learning outcomes. There have been recent attempts to install digital screens at public libraries to enable access to online classes. Television and radio platforms have also been utilized to bridge the digital divide for students belonging to disempowered communities. The fundamental premise of a rights-based approach rests upon recognizing the educational needs of all children without discrimination. A comprehensive appraisal of children’s lived experiences thus can alone lead to the inception of innovative strategies that are truly equitable. The state has a positive obligation to ensure a wider reach of e-learning facilities by aiding educational institutions.

 

ABOUT THE AUTHORS

Shrutika Pandey is currently engaged with Human Rights Defenders Alert at New Delhi as a Litigation Assistant.  She has previously written on topics concerning human rights in several national and international blogs.

 

Rongeet Poddar is a recent graduate of the West Bengal National University of Juridical Sciences and is set to join an Indian law firm. He has previously contributed to multiple blogs on commercial laws and human rights.

 

The walk back home: India’s migrant crisis and the plight of Indian labourers

by Shreya Shrivastava

The lockdown imposed by the Indian government on 24 March 2020 forced the labour class to head back to their villages and gave rise to what may now be called the deadliest consequence of this pandemic; the impact on the migrant population of India.  India’s lockdown – considered to be the largest and most stringent lockdown in the world, as ranked by the Oxford COVID-19 Government Response Tracker – brought with it a set of difficulties for already marginalized, excluded, and otherwise vulnerable individuals, groups, and communities.

In light of this, this article will examine the recent migrant crisis in India, and offer analysis into the recent dilution of labour laws by several state governments.  To conclude, I will look at how this pandemic merely lifted the veil upon the lack of recognition of the abuse and neglect of the Indian labour class and the likelihood that their pitiful situation will become even worse post COVID-19.

 

Understanding the crisis

Being the second most unequal society in the world, almost 90% of India’s workforce (up to 450 million people) are employed through the informal sector which consists of low paying positions such as domestic workers, caretakers, street entertainers, and fruit stand owners. With the onset of COVID-19 in March, India registered a rapid increase in the number of cases so a haphazard lockdown was put down by the Modi Government.

For those 21 days, a group that was portrayed as disobeying the rules of the lockdown, and consequently labelled as insensible, and subject to ridicule, was India’s migrant labourers.  Only when heart-wrenching photos, such as one of a child trying to wake his dead mother in a corner of a railway station, gained media attention, did the public give a second thought as to why these people were willing to risk their lives to return home. When the veil was lifted, 110 deaths had been reported of migrants attempting to return home, many of whom were hit and killed in truck and road accidents while the rest were exhausted in terms of money and resources.  Of those who did succeed in returning back, many tested positive for COVID-19.

A question that arises here is why were so many workers moving between two homes, instead of remaining in one?  The answer lies in the unplanned urbanization that India has witnessed.  Even though most migrant labourers in India would prefer to work in their villages or nearby towns, factors such as irregular jobs, huge debt burdens and a lack of better opportunities force them to seek better employment opportunities in the cities. Considering the structural imbalance of opportunities and employment in villages as compared to cities, how could the government not predict this mass exodus when imposing the lockdown?

The reason is quite simple; the lack of a robust ‘updated and comprehensive’ data collection system to record temporary and seasonal migration rendered the government ill-prepared to anticipate the responses of these communities during such a critical moment of crisis.

While migration data from a 2011 census was partly released in 2019, important details such as data about sectors in which migrant workers are employed, are yet to be released.  Also, the only district-to-district migration data available comes from 2001.  In 2017, the inter-ministerial Working Group of Migration report recommended an accelerated time-schedule for the release of data, along with the release of migration data at administrative levels below the districts, so as to identify micro-geographies of movement, but to no avail.

The inappropriate government response

At a moment in time when the government was expected to come to the rescue of these workers, instead they embarked on changes to working conditions branded as “barbarous” by the Centre of Indian Trade Unions.  Rather than providing workers with the resources and job security they were desperately seeking, three Indian states (UP, MP and Gujarat) diluted their labour laws.  As part of what has been referred to as deregulation efforts, the process of hiring and firing has been made easier within firms operating with 50-100 workers in order to enhance labour flexibility.  In addition,  relaxed factory inspections and license regulations have been brought into effect, widening the scope for willful or genuine bureaucratic lapses.

Reversing hard-won labor rights in the 20th century, the working hour shift is now extended from 8 to 12 hours, with minimum interference from labour unions.  MP’s CM Shivraj Singh Chouhan opined that the shift in working hours was brought under section 5 of the Factories Act which allows for exemption from its provisions for up to three months.  The MP state government was hoping that the Centre would give its affirmative nod to such a suspension for a minimum of 1000 days.  However, what remains overlooked is that this exemption can be given only during a ‘public emergency’, a narrow concept which includes within it a threat to security due to war or external aggression.  Uttar Pradesh has approved the suspension of labour laws for 3 years, making certain exceptions for laws related to the abolition of child and bonded labour, women employees, construction workers and payment of wages, as well as compensation to workers who experience accidents while on duty.

All this is being done under the guise of reviving the Indian economy, functioning on the assumption that regulations signify state control whereas deregulations promote economic growth.  The fact that regulation and deregulation are considered to be the antithesis of one another yet are two modes in which state and capital operate together, is being completely overlooked.  No economy is devoid of the state’s presence.  What is construed as deregulation is a controlled form of state intervention which gives a free hand to capital for economic growth.

Law has two aspects to it: one which deals with punitive measures and the other which provides social security, of which the state is the sole guarantor.  The changes being pitched to deal with the punitive measures, is now through the control of private entities thereby minimizing the role of the state. Whatever economic growth India reaps out of this plan will be a result of the deep casualization of labour.  Reports show that ‘contract labour’ has risen dramatically from 7% to 35% over the last thirty years, illustrating a move towards  a system of sub-contracting in which the responsibility from the top shifts downwards to workers subject to reduced labour rights.

The question arises as to why, instead of protecting the interest of workers, this unfortunate time is being used as an opportunity to relax labour laws which does little to solve the issue at hand.  Why did a crisis that required a supportive response from the government, do the opposite and instead strengthen their capitalist ambitions? This hints at an ulterior motive behind this strategic deregulation, that the government might be using the excuse of this pandemic to further its own agendas. Furthermore, the group to which these laws will be applicable constitutes only a minority of the workforce (about 10% of the formal workforce), as migrants are often in occupations in which labour laws do not even apply.

Conclusion

A two-pronged conclusion can be drawn looking at the state of the labour force in India. The pandemic brought to the forefront the pre-existing economic imbalance and vulnerabilities of India’s labour workforce.  These informal workers weren’t ‘running away’ in a protest against working conditions, wage arrears, or any other work-related grievances.  They were simply returning home to their families during conditions of a global emergency.  Still this caused a major dislocation exposing an underlying structural crisis.  This crisis wasn’t fundamentally due to the pandemic, but rather the pandemic exposed the pre-existing structural fissures which were until now hidden behind the powerful government narratives of a ‘Shining India.’  However, post-pandemic, the workers’ grievances are likely only to increase, given the recent actions of state governments.  Not only will they have to leave their homes again to return to their work, the jobs that will be waiting for them will now be more precarious, more demanding and impose harsher conditions with no job security, thus illustrating that, pandemic or not, the abuse of Indian labourers continues.

 

ABOUT THE AUTHOR

Shreya is a 3rd year Student of Dr. Ram Manohar Lohiya National Law University, Lucknow pursuing B.A. L.L.B (Hons) with a keen interest in dispute resolution, public policy, and human rights law. She wishes to pursue the same in the future and believes that ideas are what truly matters.  In future she wishes to build a platform wherein every individual has respect and can freely voice their opinions.

India’s National Health Protection Scheme: Seen through a rights-based and capabilities approach

by Rohit Sharma

 

India’s ‘Ayushman Bharat National Health Protection Scheme’ (The Scheme) is a big step forward in recognising the right to health and implementing a rights-based approach to ensuring adequate healthcare, one that maximizes the capabilities of individuals; but it is not without its flaws.

The ‘right to health’ is enshrined in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and refers to the right to physical and mental health to the highest attainable standard.  Additionally, Article 25 of the Universal Declaration on Human Rights,  mentions that ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care.’

The Indian government, while aiming for the fulfillment of similar rights, introduced one of the biggest healthcare schemes in the world.  The Scheme was launched in 2018 and aimed to insure 500 million of India’s most impoverished families with a cover of Rs 500,000 rupees to treat serious ailments.  However, despite the big promises and massive budget allocation, the Scheme suffers from multiple issues such as doctor apathy, lack of adequate infrastructure and financial issues.  While addressing such issues, I will also analyse the healthcare scheme through the lens of a ‘capabilities and rights-based’ approach.

Article 21 of the Indian Constitution contains the right to life and personal liberty and deals with the concept of the well-being of an individual.  In addition, Article 47, one of the Directive Principles of State Policy, mentions the duty of the state to improve public health.

For the past few years, India’s economic policy has not recognised the importance of the health sector.  For instance, in 2018 India spent 1.02% of its GDP in health expenditure against 17.8% by the United States and 11.3% by Canada.  Additionally, in terms of per capita health expenditure, India’s expenditure falls below countries like Iraq, Iran, Kenya, and Tunisia, who are still recovering from civil wars in the past few years.  Since the expenditure involved in the well-being of an individual can be quite high, it is ideal for individuals to cover themselves through health insurance schemes.  However, as per the government’s National Sample Survey Office (NSSO) report for the year 2014, merely 18.1% and 14.1% of the urban and rural population respectively were covered under any of the government health insurance schemes.  This highlights the critical state of health conditions in India.

The reason active steps were required by the Indian government to create such a significant scheme stems from the fact that the right to health for all was often considered an impossible standard to achieve.  However, The Scheme plans to address implementation issues concerning the right to health by providing health insurance to the poor and vulnerable, irrespective of their class or caste.  Instead, households must qualify under the deprivation criteria of Socio-Economic Caste Census, 2011 (hereafter SECC), which takes socioeconomic status into account for rural and urban households and allows ranking of households based on predefined parameters.

Besides seeing the healthcare scheme from a rights-based approach, it is pertinent to notice that the right to health, if maintained, will maximize people’s capabilities, that is, their ability to do and be their best.

 

A capabilities approach

According to Aristotle, ‘human flourishing is the end of all political activity.’  This idea thus leads to the concept of the ‘capability of an individual.’    Martha Nussbaum, a proponent of the capability approach, extended the Aristotelian idea, stating that “the capability to function well is a major factor in determining the active role in political activity.”

Some scholars, such as Jennifer Prah Ruger distinguish between central and non-central health capabilities, wherein central health capabilities act as a prerequisite for developing other kinds of capabilities. The assessment of central health capabilities is achieved through “life expectancy, infant and child mortality, and prevalence and incidence rates of disease such as Tuberculosis, dysfunction, and physical and mental functioning and disability.” She further asserts that the former should be prioritized as they lead to the development of other capabilities and to evaluate health policy in a better manner.

Three core capabilities included on Nussbaum’s list of the ten most central capabilities are a normal life span, bodily health, and bodily integrity. She believes that to maintain people’s health and well-being to the maximum level, the state should intervene in the private sphere and provide opportunities that expand individuals’ capabilities.  The Scheme aims to attain positive health for the masses through the support of doctors and wellness centers to improve the situation of vulnerable sections of society.

 

A rights-based approach

According to prominent American philosopher Henry Shue who is accredited with the rights-based approach, one of the fundamental rights needed to enjoy all other rights is the right of subsistence.  He mentions that “No one can fully if at all, enjoy any right that is supposedly protected by society if he or she lacks the essentials for a reasonably healthy and active life.”  For instance, The Scheme is trying to encourage an awareness of the interdependence between food security and healthcare, as most malnourished Indians also suffer from a lack of positive health.  The right to subsistence must also include minimal preventive health care.

Shue also argues that poverty is a consequence of either state inaction or a direct consequence of government policy. Therefore, there should be an explicit normative framework with clearly spelled out legal obligations by which the state makes the right to health an entitlement.  Any violation of such entitlement will then mean the non-realization of human rights.

 

Issues with the Scheme

States have three types of obligations regarding human rights: to respect, protect, and fulfill the rights of individuals.  India is still violating individuals’ rights because the Scheme does not cover a substantial number of stakeholders due to its reliance on the flawed SECC.

SECC publicly exposes the data of individuals, which is a significant point of concern for stakeholders.  Additionally, under the sex column of SECC, there are only two columns of male and female, despite the Supreme Court mandate in recognizing transgender as third gender.  Another such flaw of SECC concerns its methodology. The Census automatically excludes about 40 percent of rural households and automatically includes only 0.89 percent of rural households , despite the aim of  The Scheme to offer healthcare to India’s most marginalized groups.

Another problematic issue is that despite being mandated under The Scheme to admit beneficiaries and offer them quality services, private hospitals are failing their duty.  The hospitals believe that the low-cost treatments and package rates fixed by the government will cause them heavy losses, and doctors are not inclined to give the best quality treatment and surgery to such deprived patients.  Consequently, the state is not able to prevent and protect the beneficiaries from getting stigmatized and ensuring their right to health.  It is further observed that the implementation of The Scheme comes at the cost of curtailing the budget for non-communicable diseases, immunization programs, trauma, and child health, and reproductive health.

Finally, the current hospital infrastructure lacks a sufficient number of beds to accommodate patients who benefit from the Scheme.  The figures reveal that 1.5 million beds in hospitals are inadequate to support the 500 million individuals in need.  The current demands under the Scheme require the addition of around 200 thousand beds, which is a big challenge for both the state and hospitals.

These factors aggregately suggest that The Scheme was launched without the proper administrative, budgetary, and promotional measures to fully realize the right to health for all.  This, in effect, means that despite the significant step taken to acknowledge the right to health, the state failed to respect, protect, and fulfill it.

Shue’s focus on a rights-based approach that makes a state accountable for non-enjoyment of  any human right and Nussbaum’s focus on basic capabilities  converge at a common point – freedom to be ‘human.’  The Scheme had an opportunity to provide the freedom required for the physical and mental well-being of Indians and maintain both the capability as well as the rights-based approach. However, the aforementioned problems coupled with an inadequate infrastructural support suggests that The Scheme has the potential to become another failed healthcare scheme, leaving the right to health for all as just a dream.

 

ABOUT THE AUTHOR

Rohit Sharma is a 2020 National University of Juridical Sciences Graduate.   In the past, he has served as Editor of the Journal of Indian Law and Society (JILS).  Through his leadership of the JILS Blog, it was ranked one of the top 10 ranked legal blogs of India.  He has also worked for NUJS Legal Aid Society and Increasing Diversity by Increasing Access(IDIA) and is now set to become a corporate lawyer at Indian law firm, Cyril Amarchand Mangaldas.  He can be reached at rohitsharma@nujs.edu

Freedom of expression and sexual orientation: Textualist Singapore vs expansionist India

by Kartikeya Jaiswal and Pranay Modi 

This article was originally posted on Rightsblog.net

Introduction

‘Freedom of expression’ is a fundamental right guaranteed  by the constitutions of several democratic countries. It is an internationally recognised ‘human right’ and finds mention in Article 19 of the Universal Declaration of Human Rights (UDHR) . But while the right exists on paper, its actual extent, in different countries, depends entirely on the interpretation accorded to the words by those jurisdictions.

Sexual orientation and gender identity are pertinent examples here – whether the freedom of expression covers them or not depends entirely on the legal interpretation of ‘expression’.  In certain countries, the constitutional interpretation of this right has enabled the legal recognition of sexual orientation and gender identity as human rights. In others, it has led to the continued criminalisation of sexuality and gender identity

Issue

Recently, the Singapore High Court, while deciding the constitutionality of Section 377A of the Penal Code – having implications on the legalisation of homosexuality – was faced with the question; does freedom of expression include sexual orientation? The court, vide Ong Min Johnson v. Attorney-Generalanswered  in the negative; and its analysis was in stark contrast to the analysis of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the question was answered in the affirmative.

 

Singapore

Section 377A of the Penal Code criminalises ‘acts of gross indecency’ between men in public or private. In Johnson, the question arose:  does Article 14(1)(a) of the Singapore Constitution– which protects the freedom of expression – encompass sexual orientation as well? To answer the question, the Court applied the Tan Cheng Bock framework – a three-pronged method deployed for the interpretation of statutes.

First, the court considered the context in which ‘expression’ was used within the legal code as a whole (para 245). It determined context by noting the marginal note accompanying Article 14, which reads “Freedom of speech, assembly and association:. The absence of the term ‘expression’ from the marginal note, was interpreted as a clear indication that the expression was not a stand-alone right. ‘Expression’ must be read with ‘speech’ and must “necessarily point towards some form of verbal communication”. Thus, ‘expression’ under Article 14(1)(a) protects “freedom of speech encompassing matters of verbal communication of an idea, opinion or belief and not male homosexual acts”(para 255).

Second, the court considered the legislative purpose of enacting the term ‘expression’. It noted that when the constitution was adopted, there was no reference to a free-standing right of expression and ‘expression’ was only used in furtherance of the right to free speech (para 257).

The third prong of the test – comparing purpose with ordinary meaning – only reinforced the court’s interpretation, that ‘expression’ only includes expression in the form of speech. Thus, the court concluded that Article 14(1)(a) does not confer the “right to engage in male homosexual acts as a form of ‘expression’”.

India

The approach adopted by Justice See Kee Oon of the Singapore High Court, towards the interpretation of Article 14(1)(a), is in stark contrast to the approach adopted by the Supreme Court of India, while interpreting Article 19(1)(a) of the Indian Constitution – which is in pari materia to Article 14(1)(a) of the Singaporean Constitution.

In 2014, the Indian Supreme Court – in a judgement which conferred legal validity to the identity of transgender individuals – had held that Article 19(1)(a) guarantees not just speech, but also the “natural rights inherent in the status of the citizens of a free country”.

This expansion of Article 19(1)(a) allowed the Supreme Court to adopt a natural rights approach in Navtej as well. The court observed that “sexual orientation is one of the many biological phenomena which is natural and inherent” and any law which discriminates on the basis of such an inherent property of identity, would violate Article 19(1)(a) of the Indian Constitution.

 

Analysis

Despite being common law courts, there is a fundamental difference in the way both jurisdictions conferred meaning to the term ‘expression’. These diametrically opposite conclusions are a function of the method of interpretation adopted, rather than any normative opinion on homosexuality.

In Singapore, the court adopted a textualist approach and stuck to the core meaning of ‘expression’, refusing to consider the penumbra of meanings. At the heart of the judgement is the belief that the judicial process simply does not allow for the kind of social progress sought by the petition.

The Indian Court, on the other hand, disregards the fetters of textual limitations and expands the scope of the text. It confers meanings on ‘expression’ found beyond the core and within the penumbra. This expansionist approach – dubbed ‘transformative constitutionalism’ – enables the progression of rights. It displays the willingness of the Indian court to push the envelope and take up the mantle of social progress for itself.

 

Conclusion

Although to decide whether one of these approaches is better than the other is a matter for posterity. But for now, what is clear is that the Singapore High Court is not regressive in its normative morality, but simply that it is strict in its judicial process.

Nevertheless, the implications of this judgment on Singapore’s LGBTQI community – and their human rights – cannot be ignored. While the Singapore High Court has maintained the propriety of the judicial process and the separation of powers by leaving it to the legislature to take the final decision, it has failed to give immediate relief to LGTBQI persons. The continued denial of their human rights is predicated upon the continued persistence of Singaporean peoples’ political right to a disciplined judiciary. In this deadlock, it is incumbent upon the Singaporean Parliament to step in and protect the human rights of Singapore’s LGBTQI community, in line with the international standards of the UDHR and the Yogyakarta Principles.

Even though the Singapore High Court has given adequate reasoning by deeming it fit for the legislature to scrap Section 377A; expanding the scope of ‘freedom of expression’ would have sent a strong message, both domestically and internationally, as the LGBTQI community keep on fighting for their basic human rights.

 

ABOUT THE AUTHORS

Kartikeya Jaiswal studied law at Jindal Global Law School in New Delhi, and graduated in August 2019.  He is now advocate practising law in new Delhi.

 

 

Pranay Modi studied law at Jindal Global Law School in New Delhi, and after graduating is now a Research Fellow at Vidhi Centre for Legal Policy, New Delhi. 

Indian Parliament revokes the agency of transgender persons in determining their gender identity

by Aishwarya Singh

The Transgender Persons (Protection of Rights) Act, 2019 (the Act) came into effect on December 5, 2019 amidst much criticism and protests by the transgender community and activists in India.  The Act is a revised version of the Transgender Persons (Protection of Rights) Bill, 2018 (2018 Bill), which had lapsed in the Upper House of the Parliament.

One of the main provisions of the Act provides that the issuance of a certificate of identity as a transgender person is conditional upon the “procedure” prescribed by the executive, leaving transgender people vulnerable to invasive procedures, which can be introduced at the whim of the executive.   This fear is cemented by the fact that under Rule 4 of the draft rules, released by the Ministry of Social Justice and Empowerment, such a certificate will only be issued after a report of a government hospital psychologist is produced, and verified by a District Magistrate.

Furthermore, the Act requires transgender persons to undergo sex reassignment surgery, after which they would become eligible for receiving a certificate of identity as a member of the opposite sex to the one assigned at birth.  The process of legal recognition of gender identity under the Act takes away the right of self-determination of gender and makes the recognition conditional upon the bureaucratic scrutiny of the body of the trans subject, which I argue is enabled by the contradictions in the Indian Supreme Court’s judgement in the case of  NALSA v. Union of India (NALSA) on the right to self-determination of gender.

Under the Act, a transgender person has the “right to be recognised as such, in accordance with the provisions of this Act”. Since the recognition of the person as ‘transgender’ is subject to the provisions of the Act, the procedure of such recognition is of paramount importance.  The 2018 Bill contemplated the constitution of a District Screening Committee (DSC) which, inter alia, included a government officer, medical officer and a psychiatrist/psychologist.  The committee would consist of only one member from the transgender community.  Pursuant to the recommendation of the DSC, the District Magistrate would issue a certificate of identity as a transgender person.  The constitution of the DSC was one of the most criticized aspects of the 2018 Bill, since it would not only have forced transgender persons to consent to a psychological and medical examination, but would also have reinforced the notion that transgender identity is a subject of medical evaluation and not just another gender variation.

The Act does away with the constitution of a DSC.  However, Section 6 of the Act provides that the process of issuance of the above certificate of identity by the District Magistrate is subject to “such procedure and in such form and manner, within such time, as may be prescribed” by the executive.  This provides significant room to the executive to make rules in this regard that could equally violate a transgender person’s constitutional right to privacy and dignity recognised by the Supreme Court of India in the NALSA judgement (paragraph 66).  As noted above, the draft rules introduced by the Ministry of Social Justice and Empowerment provide that the right of self-determination as a transgender person is conditional upon psychological evaluation.

The draft rules were released on April 18, 2020 for the purpose of public consultation and the deadline for submitting the comments was May 18, 2020.  The release of the draft rules during the lockdown imposed due to the Covid-19 pandemic has made mobilisation against the provisions of the rules difficult.  Further, Section 7 of the Act makes the legal recognition of a person, as a member of the opposite sex to the one assigned at birth, conditional upon “surgery to change their gender“.

The above provisions are at odds with the right to self-perceived gender identity provided under Section 4 of the Act.  However, the contradictions between the bureaucratic screening and imposition of gender identity, and gender self-determination under the Act, is in continuation of the oscillatory approach towards the recognition of gender identity adopted by the NALSA judgement.  Although the judgement was celebrated for its recognition of  transgender identity and affirming the constitutional rights of the transgender persons, its interpretation and implementation by the lower judiciary, has been inconsistent, wherein the courts have used sex reassignment surgeries (SRS) or psychological evaluation as the basis of recognition of gender identity.

Under the operative part of the judgement, written by Justice K.S. Radhakrishnan and Justice A.K. Sikri, a transgender person’s right to decide their self-identified gender has been upheld and the Centre and State Governments have been directed to grant legal recognition of their gender identity, such as male, female or third gender (paragraph 129), without any mention of medical procedures as a requirement for legal recognition of the that identity.   However, the ‘grant of legal recognition’ by the government has opened the door for policing of gender identity by bureaucratic committees.

Furthermore, Justice Radhakrishnan, while advocating for self-identification of gender, suggests a psychological test to determine sex and gender (paragraph 75).   Justice Sikri’s opinion is even more restrictive and uses biological essentialism for the granting of constitutional rights.  He opines that “a person has a constitutional right to recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well” (paragraph 106).  The observations of the judges, hence, are open to interpretation enabling the Indian Parliament to pass an Act which is antithetical to the idea of self-determination of gender.  Simply put, the process for recognition before the law and control over one’s own body should be separate from any medical interventions.  But if in case, an individual’s personal identity or transition process requires medical support, those services should be made available and be accessible.

In addition, the process of legal recognition of gender identity, conditional upon bureaucratic screening and medical procedures, violates the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles), which although not legally binding, are considered as the international standard in combating gender identity based discrimination.  Upholding Yogyakarta Principles as a part of Indian law by the Indian Supreme Court in the NALSA judgement and Navtej Singh Johar v. Union of India should be seen as a watershed moment for Indian Transgender Activism and the government must try to bring this Act in line with it to do justice to this community.  Meanwhile, the Act has been challenged in the Supreme Court but, it is hoped that the principles such as self-determination of gender are adhered to in letter as well as spirit and are not violated under the name of  psychological tests (which are typically based on binary frameworks e.g. “being trapped in the wrong body”) or a biological test, both of which are exclusionary and not inclusive of the varied ways in which gender is experienced.

 

ABOUT THE AUTHOR

Aishwarya Singh is qualified to practice law in India. She is interested in constitutional law, anti-discrimination law and international human rights law.

India Under a Draconian Shadow

by Chaitanya M. Hegde

While the world is busy fighting COVID-19,  India, a democratic and secular state consisting of different religions, is busy silencing the media and dissent.  The use of anti-terror laws to discriminate against Muslims has long been a problem in India, and more recently these laws have begun to be used against journalists too.

In the disputed land of Kashmir, invoking such stringent laws speaks to the silencing of the media, controlling the narrative and containing what is occurring in the region. Since the abrogation of Article 370, the world has been disconnected from Kashmir.  For example, telephone and internet services have separated the people of the valley and very few media outlets have been allowed to publish news in this region.  Journalists were being intimidated from publishing news against the government. The International Press Institute highly criticized India’s Hindu Nationalist government for the restrictions placed on journalists’ news coverage in this region post-abrogation of Article 370.

In a sudden turn of events, the government has taken a step further and Masrat Zehra, Peerzada Ashiq and Gowhar Geelani, have been arrested under the controversial, anti-terror, ‘Unlawful Activities (Prevention) Act’ (UAPA).  Originally enacted in 1967, the law has been censured for its recent 2019 amendments, which allows the central government to declare individuals as ‘terrorists’.   Masrat and Geelani were booked under the UAPA for social media posts which were deemed “anti-national” and Peerzada was booked for a news item that was eventually proven to be inaccurate. The way these arrests occurred shows how the government in India has cunningly made use of such a draconian law in such unstable times.

Peerzada Ashiq (L), Gowhar Geelani (C), and Masrat Zahra (R) | Photo: Twitter

While there are journalists like Arnab Goswami, who have been accused for their bigoted views and inciting hatred, it is journalists covering news in sensitive areas who are being arrested under the Terrorism Act.  Facing intimidation and harassment is nothing new for journalists in Kashmir.  Since the 1990s, they have been facing the wrath of both state bodies and non-state bodies (e.g. militants) for covering delicate issues in this region.  This pattern of intimidation has intensified lately.  Many have been humiliated, summoned by the police and interrogated exhaustively, and sometimes forced to give out their sources.   However, they are also now being charged for terrorist activities.

The surprising invocation of the UAPA against these journalists is problematic.  This action is clearly against freedom of speech as envisioned in Article 19 of the United Nations Human Rights Declaration of 1948, which guarantees the right to seek, receive, and impart information.  Threats to this principle of international law have emerged in recent times.  Though technology affords global communication, governments have challenged the very concept of press freedom, by avowing that it is not a universally accepted right, but rather needs to be adjusted to a nation’s needs and circumstances.

Section 15 of the UAPA  defines a terrorist act as one with “intent to threaten or is likely to threaten the unity, security, or sovereignty of India…”  The ambiguous wording of ‘security’ and ‘threaten’ has permitted the current administration wide scope to interpret this for their benefit and suppress other voices in this region.  This has resulted in journalists being booked as terrorists and punished under Section 13 of UAPA.   Although the Apex court of India has noted that vague provisions should be struck down from faulty legislation, the misuse of such provisions has continued.   Another astonishing part of this act is that any person can be confined for a maximum period of one year without a trial.   When looked at together, the fundamental notions of liberty and human rights are disregarded, as anybody could be labelled a terrorist without being granted a trial.

However, this power of free speech can be restricted under certain grounds such as the defense of national security, or to protect the reputation and rights of others.  Yet, one needs to question whether the acts of these journalists calls for usage of the UAPA.  Any usage of such laws for merely publishing news or pictures in the mainstream or social media is unwarranted.  The preamble of the UAPA mentions that the intent of this act is to ensure action is taken against terrorist activities and terror organizations.  The actions of these individuals do not come close to this.

The Editors Guild of India released a statement on April 21^st condemning the arrests of these journalists.  Free, autonomous and pluralistic media based on freedom of information and expression is an essential component of any working democracy.  Freedom of the media is in fact necessary for the assurance of all other human rights. Occasions of torment, segregation, debasement or abuse have commonly become visible due to insightful journalists.  Making the realities known to the general public is one of the fundamental tools to address human rights infringements and begin to hold governments responsible.  George Orwell observes, “If liberty means anything at all, it means the right to tell people what they do not want to hear.”   The UAPA might aim at taking action against terrorism, but by restricting such fundamental freedoms, it is doing more harm than good.

 

ABOUT THE AUTHOR

Chaitanya M. Hegde is a 2nd year undergraduate student student pursuing a BA LLB at Gujarat National Law University (GNLU), Gandhinagar.

 

Reflections on India…. A democracy in peril

Gautam Singh reflects on the transformation of his home country of India, the recent riots in Delhi and the impact on his own village 

My India

I grew up in the small village of Jharkhand, India.  My village has a population of almost 1200 people, half of them being Muslim, the other half Hindu, divided into several casts.  This has been the demographic of my village for centuries.  Until the early 1990’s, every festival, whether it was Eid, Holi or Diwali, was celebrated by everyone, Muslims and Hindus alike.  Muslim villagers often led the Hindu Holi procession and Hindus often led the prayers and sweet distribution for Eid.  There were three places of worship in the village and everyone could worship in any of these places.  In this remote and isolated village, we all co-existed like members of a large extended family, maintaining a unique way of life; mellow and harmonious, celebratory and united.

All of this changed overnight on the 6^th December 1992, when Babri Mosque in Ayodhya was demolished by a large group of Hindu nationalist activists.  We started receiving new visitors to our village.  Some came with ‘brick-in-hand’ to collect funds for a new Hindu temple in Ayodhya, while others preached that Islam was in danger in India. Some were wearing saffron robes with a sectorial mark on their forehead and others wore white robes and skull caps.  They divided our places of worship, converting two of them into temples and one into a mosque.  My village entered a transformatory phase.  Villagers began to disengage from people from other communities, growing religiously private, limiting interaction, and keeping to themselves and their respective religious communities.  We no longer celebrated festivals together.  We stopped inviting villagers from other religious communities to family functions.

However, with the passage of time, villagers overcame the polarization, rejecting what they saw as a dividing tactic of some extreme religious groups.  By the beginning of the 2000s, the community spirit of my village had returned.  Although, the tradition of a Muslim man leading the Holi procession and Hindus distributing sweets in Eid were never revived, members of both religions began again to celebrate festivals and family functions together.

By this time, I had moved to Mumbai and subsequently to Qatar.  But I never missed a single Eid, Holi or Diwali in my village and would always talk with great pride about how Hindus and Muslims of my village lived and celebrated life together for centuries.

Sadly, last year, this pride was totally shattered, when I returned to take part in the Holi procession in my village.  Since the early 2000s, during a Hindu festival, Muslim men would walk along with the procession and women would stand outside their homes with water and sweets.  But this time, the door of every Muslim house was shut.  Not a single person from the Muslim community came out in the street to join the festival.  As I went to knock on the door of some of my Muslim friends who lived near the village mosque, the procession loudspeaker started broadcasting loud Hindu nationalist slogans:

“Jai shree Ram” (Hail Lord Ram)

“Mandir wahi banayenge” (We will build the temple there only)

“Goli maro salon ko…desh ke gaddaron ko” (Kill the traitors)

“Kheer mango kheer denge…Kashmir mango cheer denge” (We will slaughter you if you ask for Kashmir)

These slogans referred to the site of the destroyed Mosque at Ayodhya, claiming it to be the birthplace of the Hindu God, Rama and pledging to rebuild a Hindu temple there.  I then realised why my friends weren’t joining the parade and why the majority of the houses in my village were shut, as the Holi procession continued on through the ghostly streets.

But this story of my village of Jharkhand is not simply the story of one village.  It is a story that has played out in villages, towns and cities across India over the last half century.

 

Modi’s India

India is a country of 1.30 billion people, including 965 million Hindus and 170 million Muslims and despite differences, a long tradition of tolerance has pulled this huge nation together.  However, since 2014, when the Hindu majoritarian Bharatiya Janata Party (BJP), lead by Narendra Modi, came to power, tensions between Muslims and Hindus have increased in many parts of the country.

Modi has been an activist for the Hindu far-right paramilitary RSS (Rashtriya Swayamsevak Sangh) and its affiliates for the entirety of his political life.  He remains committed to the supremacist ideology of Hindutva which says that India should be an exclusive Hindu nation-state in which minorities are treated as second-class citizens.  Muslims, in the last 6 years have faced regular attacks after being accused of eating beef or killing a cow, an animal considered sacred in Hinduism.

After being re-elected in 2019, Modi and his deputy Amit Shah pushed the Citizenship Amendment Act (CAA) through Indian parliament.  The Act prohibits ‘illegal migrants’ from becoming Indian Citizens, allowing for exceptions for six religious minorities, but not for Muslims.   The creation of a National Register of Citizens (NRC), couched in the language of ‘national security’ and ‘muslim-only’ detention centres has caused an atmosphere of extreme mistrust among a large section of Indian Muslims.  Anti-CAA protests have spread around the country and have been met with brutal force by authorities.

A Hindu-Muslim divide is growing.  Even the visit of US President, Donald Trump to India did not prevent communal passions from taking a violent turn in the national capital, Delhi.  Parts of Delhi were literally burning and rioters rampaged the streets as the US President was being welcomed by Prime Minister Narendra Modi at a well-orchestrated “Namaste Trump” ceremony.  Delhi cried for 72 hours while Lutyen’s Delhi (the political heart of New Delhi) left not a single stone unturned to blow Trump’s Trumpet.  While images of the Delhi riots spread around the globe, the two leaders were busy exhibiting showmanship and sycophancy.

The violence erupted following the ‘rabble-rousing’ of a local politician named Kapil Mishra whose speech provoked the targeting of Muslims protesting against the CAA.  A mob went on the rampage in minority-dominated neighborhoods, and in some specific areas, Hindu-owned properties including schools, shops and homes were also attacked and burnt. 50 died and hundreds were injured.  Instead of controlling the violence, the police became active participants in many areas.  This was symbolized by a video which went viral, showing uniformed officers beating five young men, all of them injured, telling them to sing the national anthem.  One of the men, Faizan, died of his injuries days later.

For three days the Prime Minister of India remained silent and the Home Minister was absent.  When the state not only fails to provide the same protection of law to all sections of society but  emboldens the rioters, one cannot put it down simply to the incompetency of state machinery to protect its citizens.  Instead it exposes the reality of a more sinister wholescale discrimination against one religious minority, and deeply troubling signs for the future of the world’s biggest democracy.

GAUTAM SINGH

About the author: Gautam Singh is an independent film-maker, cinematographer, writer, director and a program-maker at Al Jazeera Media Network.  His films include  ‘Gaon – The Village No More’, ‘Daughters of Brothel’, ‘The Burning City’, ‘Indian Hospital’, and ‘My Sister Laxmi’.  Currently, he lives in Doha, Qatar along with his family.