Category Archives: Editorial

Development of Social Welfare Policies: A means to address Group Inequality in India

DEVIKA SINGH

A BRIEF ANALYSIS OF THE DEVELOPMENT DEBATE

The Development debate gained momentum as a post world war necessity. ‘Development’ emerged as a new tool for addressing the problem of poverty which was exacerbated in the years following the second world war. Harry S. Truman’s Presidential inaugural speech in 1949 marks the acknowledgement of the post-world war political turmoil. His Four Point programme was announced as a technical assistance programme towards the economic development and political stabilisation of developing countries. The United States of America thus marked the beginning of the development discourse. A combination of institutions and policies were set up to primarily address economic development. The division of the world into the first world and third world nations, the developed and the under-developed meant these policies were the attempt of developed nations to raise the status of the under-developed to that of their own. Institutions like the IMF and World Bank changed the power equations at a global level from that of coloniser and colonised to that of developed and underdeveloped, and thus began the shift from colonialism to neocolonialism.

The development discourse has since then gone on to include concepts of social justice, human development, human rights and well-being. The UNDP was set up in 1965 to promote equitable growth and democratic governance in under-developed countries. By the late 90s, it went on to include within its purview crises prevention and recovery, environment and ecology (sustainable development, sustainable livelihoods and the Millennium Development Goals), Human Development (Human Development Index), HIV/AIDS and Innovative Partnerships.

The early 2000s saw an increasing focus on the role of the State as a ‘duty-bearer’ to its citizens (Johnson 1999; Kabeer 2005; Jayal 2013). This translated to an increasing interest in the functions of public policy and that of the State in the development process as not limited to merely economic and financial development but bringing in social justice, HDI, well-being (UNDP 2010; McGregor and Summer 2010), equity, happiness, quality of life (Frey 2008), etc. However, it is the disappointment from the lack of actual ground level accomplishment of any of the goals and policies set in place by these institutions that have shaped an interest in public policy and the development processes of the last five to six decades. It was clear that the Millennium Development Goals (MDGs) would not be reached by 2015, neither at the aggregate level nor when disaggregated by vulnerable communities or fragile districts – with the exception of a few countries (IEG 2011). The consequences of globalisation, a fragile world economy, the protracted financial crisis, intensified food insecurity, poverty and malnutrition, crises in health and education systems all raise perturbing questions regarding this new world over-reliance on ‘the market’ and all point to a desperate need for the injection of the Human Rights discourse into that of development and growth. These circumstances have also brought in the questioning of lower-income countries leading to the generation of a new macroeconomic consensus, also termed as the Post-Washington approach (Koehler and Chopra 2014). This new model is based on the need to create and sustain demand, maintain employment and support inclusive economic growth.

SOCIAL POLICY IN THE INDIAN CONTEXT

India, as one of the prominent members of the United Nations, played an active role in the drafting of the Universal Declaration of Human Rights (1947-48) and became a signatory to the UNDP in 2000. The period from the early 2000s marks a focus on social policies designed to address poverty and deliver welfare at the levels of programming and design, structural changes and implementation. Indian society being extremely heterogeneous could not and cannot follow the policy structures of homogeneous developed nations. Development policies in India in the period from 2003-14 thus took the shape of social policies, reflecting the influence of social conditions on the economic potential of the populace. The Constitution of India had been framed keeping this in mind, and a transformative interpretation of the constitutional mandate directs the State to view the social policy as inseparable from economic policy. The duty of the State in these policies marks the intersectionality of poverty, rights, social policy and governance. This increasing role of State duty in welfare and social policy also marks a shift in approach from that of ‘welfare’ to that of ‘rights’.

A reference to the Indian Constitution and amendments made points to the addition of these social rights. For instance, Article 21A (April 2010) The Right of Children to Free and Compulsory Education Act, making elementary education the fundamental right of children aged six to fourteen years. Articles 15, 19, 85, 87, 174, 176, 341, 342, 372 and 376 and the insertion of articles 31A and 31B, Schedule 9 (18 June 1951) added special provisions for the advancement of socially and educationally Backward Classes, the Scheduled Castes and the Scheduled Tribes. It fully secured the constitutional validity of zamindari abolition laws and placed reasonable restriction on the freedom of speech. A new constitutional device, Schedule 9, was introduced to protect laws contrary to the Constitutionally guaranteed Fundamental Rights. Amendment to Schedule 9 (31 August 1994) enabled continuance of 69 percent reservation in Tamil Nadu by including the relevant Tamil Nadu Act under 9th Schedule of the Constitution. Article16 (June 1995) – technical amendment to protect reservation to SC/ST employees in promotions. Article 335 (September 2000) permits the relaxation of qualifying marks and other criteria in reservation in promotion for SC / ST candidates. Amendment to Schedule 8 (January 2004) included Bodo, Dogri, Santali and Maithali as official languages. While these are Constitutional innovations, a number of social policy innovations have created a dynamic shift in the social set up in India. The post-independence state-led, industry-led development focus failed to address and even reach seventy-five percent of the workforce – the workforce engaged in the informal and agricultural sectors. The shift in State policy towards that of a neoliberal market-based economy furthered the economic gap between the formal and informal and agrarian sectors. Up until recently, all successive governments since the 90’s implemented the same policies, continuing with the same measures. In Engendering Social Security and Protection, Sen (2011) speaks of the ongoing inadequacy of basic human development in India, characterised by very low public spending on education and health, that necessitates the continuity of this condition of gross inequity. It is only over the last decade that the Indian policy context speaks of ‘social protection’. The years since 2004 have witnessed increasing legislation at the National level addressing the right to work, right to education, right to health and food security.

The Right to Information Act (RTI, 2004) is the game changer that underpins most of the social policies following this period. It is the first Act which marks the shift from a welfare-based approach to a ‘rights’ based approach. The National Common Minimum Programme (NCMP) of the Congress-led UPA coalition government followed suit in 2004, stressing the need to address India’s large poor population. This was based largely on the principles of preserving, protecting and promoting social harmony, to ensure economic growth and the generation of employment with the assurance of livelihood, enhancing the welfare, well-being and livelihood of farmers, empowering women socially, economically and politically (particularly those in the unorganised and informal sectors), the provision of equal opportunity for the Scheduled castes, scheduled tribes, OBCs and religious minorities in the areas of education and employment, etc. These principles address groups facing oppression and suppression for centuries on end, having to deal with a highly unequal social, economic and political set up. The question of women, Dalits, caste groups, class groups, workforce groups and rural-urban segregation is beginning to be addressed at the political and policy level. The interface of activists, politicians, bureaucrats and civil society members brought in a string of other important legislations such as the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA 2005), the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the National Food Security Act (NFSA 2013), all of which arose from a similar ‘rights’ based agenda. The National Rural Health Mission (NRHM 2005) focussed on bringing quality healthcare to the rural areas, the poor, women and children. It aimed to improve accessibility and quality of healthcare provided. The Janani Suraksha Yojana, a part of the NRHM was a safe motherhood intervention aimed at reducing maternal and neonatal mortality in poor and pregnant women (Government of India, 2005). The Right to Education Act (RTE 2009) brought in a compulsory elementary education of children in the age group of 6-14 years. The Direct Benefit Transfers (DBT) scheme brought in cash transfers to girl children (along with several other social policies for women and children) to fund educational scholarships, as pensions for the elderly, destitute and widows, for people with disabilities, health related transfers like the Rashtriya Swasthya Bima Yojana, the Unique Identification ID or Aadhar made electronic cash transfer systems accessible to the masses. The Jawaharlal Nehru National Urban Renewal Mission (JNNURM 2005-06) was based on a combination of the Common Minimum Programme, the MDGs and the need for mission-led initiatives.

The Indian policy context, like all other South Asian nations, is a complicated and diverse field, symbolising the complexity of the contradicting and conflicting ground reality of the multitudes of groups living together. The groups living together in this context are based on deep social biases which are entrenched making the social reality a very difficult one to get out of in spite of policy intervention. The role taken on by the Indian State while largely that of Rights-based Development Welfare State raises concerns of the financial feasibility of a nation still struggling to develop economically to spend so much of tax money on making basic provisions accessible to a large majority of the population. However, the desperate need for State based social policy cannot be side-lined in their context. This need is felt on a regional scale (South Asian region) as is represented in the table below highlights the commonality in social protection policies adopted in this region.

Screenshot (9)Source: Development and Welfare Policy in South Asia: Gabriele Koehler and Deepta Chopra

The complexity of the intersectionality of women’s oppression along with caste based, class based and work based biases makes the functioning of each policy passed a tentative affair, creating the need for constant and dynamic revision of the policies passed. The question of implementation and factors contributing to the failure of implementation such as structural problems and systemic failures such as corruption and lack of political will raise the complexity of the context of social protection to higher levels. In conclusion, policies of development and welfare in the Indian context cannot be restricted to the role of the State merely passing legislations,  Schemes or Yojanas, but necessitates the dynamic intermingling of multiple social groups and state mechanisms to bring about any success in intervention.

REFERENCES


Frey, B. (2008) Happiness: A Revolution in Economics, Cambridge, MA/London: The MIT Press

GoI. (2005) Government of India, Ministry of Health and Family Welfare, National Rural Health Mission: Mission document (2005-2012), available at http://indiagovernmenance.gov.in/files/ Mission_Document_NRHM.pdf.

IEG (2011) IEG Annual Report 2011: Results and Performance of the World Bank Group, Washington, DC: Independent Evaluation Group

Johnson, C. (1999) ‘The Developmental Welfare State: Odyssey of a Concept’, in M. Woo-Cumings (ed.) The Developmental State, Ithaca, NY: Cornell University Press, pp. 32-60

Jayal, N.G. (2013) Citizenship and its Discontents: An Indian History, Cambridge, MA: Harvard University Press

Kabeer, N. (ed.) (2005) Inclusive Citizenship, Meanings and Expressions. Volume 1 of Claiming Citizenship, Rights, Participation and Accountability, London: Zed Books

Koehler, G. and Chopra, D. (2014) Development and Welfare Policy in South AsiaMcGregor, J.A. and Sumner, A. (2010) ‘Beyond Business as Usual: What might 3D well-being

contribute to MDG Momentum?’, IDS Bulletin, The MDGs and Beyond 41(1), pp. 104-112Sen, G. (2011) Engendering Social Security and Protection: The Case of Asia, International Policy

Analysis, Berlin: Friedrich-Ebert-Stiftung

UNDP. (2010) Human Development Report, The Real Wealth of Nations: Pathways to Human Development, New York: UNDP

 

(Devika is pursuing Master’s Programme in Public Policy at the National Law School of India University. She can be reached at devikasingh@nls.ac.in)

The Changing Face of Economic Federalism

DWIJARAJ BHATTACHARYA
GST
With the Goods and Services Tax (GST) almost set to roll out by Q2, 2017-18, an inquiry into the ramifications, not in terms of the politics surrounding the change but in terms of changes in the political institutions and norms, is of utmost importance. Apart from a radical shift in the tax code, GST has the potential to alter the federal character of India. To completely grasp the disruption potential of The Constitution (101st Amendment) Act, 2016, it is important to first revisit the journey of federalism in India before analysing the provisions of the said legislation.
The genesis of federalism in India lies in the Simon Commission Report, 1930 which advocated for the concept of Federalism for the first time in formal channels. Thereafter, following the Round Table Conferences and deliberations with stakeholders, the formalisation of the federal structure occurred with the Government of India Act, 1935 wherein the powers of the federal government, governor’s provinces and chief commissioners’ provinces were separated. However, the emerged federal arrangement was just in name and not in spirit, since the governor was ultimately only unanswerable to the viceroy and not the legislature. Furthermore, the act also ensured that the Governor had executive outreach to cripple any legislative move.
Upon Independence, when the constituent assembly had the power to shape India’s future and its federal character, one would expect a radical shift from the existing then position. However, the intermittent developments especially the fear of partition and subsequent partition of India and the then West and East Pakistan, the reluctance of few princely states to join independent India and major linguistic and ethnic clashes resulted in minor improvements in the Indian federal character. The present day understanding of the structure of the political and economic federation in India originates subsequent to The Constitution (7th Amendment) Act,1956. Though certain states were elevated in status, thus granting them certain extra political and executive powers the Parliament and the Union executive could still override the states’ decisions (under Articles 352, 356 and 360).
The polar character of the constitution where the centre had more power compared to the states is well noted in jurisprudence as well, especially highlighted in the cases of State of Rajasthan v Union of India, 1977, S.R. Bommai v Union of India,1994 and in the case of The State of West Bengal V. Union of India, 1963 where the court highlighted a few reason to not consider the Indian state as a typical federation since there is no provision of separate Constitutions for states. Secondly, the amendment of the Constitution can be done only by the Parliament and the states have no power to amend it by themselves. A state can be stripped off its legislative powers without its consent, unlike the US Constitution where every state must ratify any constitutional amendment. Finally, the distribution of powers is such that it allows for local governance by the states, while national policies to be crafted by the Centre.
The degree of handicap that the states face in terms of political federalism is undoubtedly higher than that in the case of economic (also called financial or fiscal) federalism. Since, the finances of the union and the states are derived predominantly from taxes and given such matters are enumerated in the Seventh Schedule of the Constitution of India, which is somewhat protected from any unilateral action by the centre by Article 368(2) which mandates the assent of half of state’s legislature for any alteration to the Seventh Schedule.
The initial view held was that the state doesn’t have taxing powers over goods that are interstate in character further substantiated by Atiabari Tea Co., Ltd. v State of Assam and Ors.,1961 where the court held that a state cannot exercise its power of taxation over interstate goods. The aforementioned judgment was however overturned within a year with Automobile Transport Rajasthan Ltd., Etc. v State of Rajasthan and Ors., 1962  the court shifted the balance of power, in terms of taxation to the state and from the center even if goods were interstate in character.
The idea of a pan-national Goods and Services Tax (GST) became a dominant discourse in Public Finance circles of India upon publication of the report of the Task Force on Goods and Services Tax under the Thirteenth Finance Commission, 2009 which claimed that the GST will bring about a form of federalism with the balance of power shifting away from the centre since the state will end up having a wider gamut of goods and services to tax. This claim has seen excessive criticism from various quarters claiming that it attempts to further distort the balance of power in favor of the center. The claim rests upon a reading of Clause 7 and 9 of Section 12 of The Constitution (101st Amendment) Act, 2016. The clauses stipulate that for a decision to be passed there should be  75 percent of the votes in favor of it and the center shall control 33.3 percent of the votes.
It is thus impossible for the States in the GST council to pass any proposed changes to the GST structure without the center’s approval. While the understanding is indeed true, one must read the Section 12 (4) of the Act alongside which reads “The Goods and Services Tax Council shall make recommendations to the Union and the States on”. Thus, the fact of the matter is GST Council is not empowered to make any rules and thus can’t violate the constitutional framework all by itself, even though the center practically enjoys a veto as per Section 12(9) of the Act.
The lack of a clear definition of the nature of federalism in India becomes more pronounced once the political federal structure is compared with the economic federal structure. The claim that GST constitutes a gross violation of federalism, a basic feature of the constitution, seems unsubstantiated. Thus, the 101st Amendment can be said to act as an instrument harmonizing the diverging notions of federalism and not necessarily diluting federalism completely. The impact of GST indeed goes beyond the political institutions of the country, however, it is important to focus on these institutions because the fragility of mainstream economic wisdom is transient at best, while these the political institutions are supposed to be resilient.
Image Source: 
http: indiatoday.intoday.in/story/gst-bill-all-you-need-to-know-about-good-and-services-tax/1/916196.html
(Dwijaraj is pursuing Master’s Programme in Public Policy at the National Law School of India University. He can be reached at dwijaraj@nls.ac.in )

Minimum Wages Policy in Karnataka

AN ANALYSIS OF KARNATAKA’S MINIMUM WAGES POLICY: HOW THEY ARE NOTIFIED, CONTESTED AND UPHELD

 

-SMITA MUTT

 

Various Theories for the determination of wages

 

The procedure of setting minimum wages in India is a balance between legislative statute and policy regulation, the understanding of which requires vigilance and careful study from the lawyers, academics, activists and union leaders who are actively engaged in contemporary labour questions. These wages build a paradoxical economic issue – while the interests of workers and their unions seem antithetically opposed to those of their managers and company owners, they are actually more closely intertwined. To appreciate the current situation, one must follow two trends: tracing the history of the minimum wage as a political and judicial issue and understanding the statutory procedure by which administrative notifications are prepared. But it is also necessary to lay focus on the fact that it is through institutions such as courts, labour departments and civil society groups that the beneficiaries of minimum wage policy are served amidst corruption or administrative negligence.

History of the Minimum Wage Policy

In any discussion of the legislative and policy implications of the minimum wage in India, 1948 is a crucial year. It involved the passage of the Minimum Wages Act and the appointment of the Tripartite Committee on Fair Wages, which drew distinctions between three conceptual levels of wages – the living wage, the fair wage and the minimum wage. Of these, the first is arrived at on the basis of meeting basic needs, the second is calculated with regards to the industry’s ‘Capacity to Pay’ and the third is the statutory mandate.

As these dimensions were laid out and efforts were made to navigate the tensions between them, the 15th Annual Labour conference was held in 1957. In this conference, it was argued that minimum wage should be fixed in a scientific and needs-based manner – an idea that became hugely influential within the minimum wage discourse. They recommended that the minimum wage should sustain a family (estimated at three consumption units – one man, one woman and two children) for their requirements of food, clothing, rent, fuel and miscellaneous expenses.

The events discussed so far are negotiating processes, where administrative and political actors gathered to establish a legal infrastructure for minimum wages. However, their policy recommendations were not easily accepted by industries, which challenged them through an array of cases:

  • Bijay Cotton Mills Ltd vs. State of Ajmer, 1954

This petition was filed by the Mill owners challenging the right for the “appropriate government” to mandate a minimum wage, citing the Fundamental Right to freedom of trade or business (Art. 19(1)(g) and was dismissed.

  • Crown Aluminium vs their Workmen, 1957

Crown Aluminium Works was dissatisfied with the verdict of an Industrial Tribunal set up to adjudicate a dispute between them and their workmen. After a wage was agreed upon, Crown filed an appeal and then this petition, arguing that certain “economy measures” had to be taken. Since the revision of the fixed wage structure was due to the employer’s financial difficulties, both filings were dismissed, recasting minimum wage as the market price of the factor. Industries could either hire workers at the wage or not at all.

  • U. Unichoy and Others vs. State of Kerala, 1961

A group of tile factory owners in Kerala argued that the minimum wage notification actually denoted a fair wage and was arrived at in an unfair (and non-procedural) manner. After examining the case, the court rejected their petition, showing that the wage was properly fixed through the procedure established by the Act.

In each of these cases, the legal institution of minimum wage and the established statutory process of notifying it were protected. However, in recent years, we have seen more successful challenges, both due to a dysfunction within the State Labour Departments and a shift towards more flexible labour regulations.

Procedure to Notify Minimum Wages and Contemporary Challenges

It is worth noting that since Minimum Wage is a labour issue that appears on the Concurrent List, it is the States that set the notifications according to areas of employment enumerated in the Central law’s Schedule. States are hesitant to revise minimum wages too high, fearing that employers will move to other states with more favourable wage regimes. This stress is only more acute for exporters, who put pressure on the State Labour Departments to loosen restrictions.

After considering all advice and representations, the Government must notify the new minimum wage by scheduled area of employment. Under the Article 3(1)b, wages must be reviewed and if necessary, revised every 5 years – a practice that most states do not keep up with.

Minimum Wage

In October 2015, the High Court rejected Karnataka Labour Department’s Minimum Wage notification for automobile and foundry workers, citing “glaring lapses and gross dereliction of duty.” Going on to attack public servants for their “carelessness and negligence”, the Court ordered an enquiry into the Department and for all those responsible for incurring penalties. After months of delays, when the case finally came before the court, the Labour Department could not show that their decision was based on recommendations from the Advisory Board, a major procedural lapse that forced Justice Venugopala Gowda to accept the petitions and quash the wage notifications. Lawyer-activists such as Clifton d’Rosario of Manthan Law Chambers, who routinely deal with the Labour Department maintained that this lacklustre work is its general culture. The Court additionally ordered the Government to issue proper notifications by the end of November and directed companies to pay 75 percent of the higher wages in the interim.

This push-and-pull of institutions that fight against and also for, set minimum wages is seen not just in Karnataka, but in other states with developed industries such as Tamil Nadu, Maharashtra and West Bengal. These occurrences are due to successful interactions of social justice actors, but it is just as important to remember that the minimum wage is a limited policy. It fails to cover workers in the unorganised sector as well as any sector not included in a particular State’s Schedule. Moreover, non-compliance of employers tends to increase due to intersectional identities of the workers – young, unmarried, lower caste women employed in the garment sector are some of the greatest victims of partially implemented minimum wage policies.

(Smita is pursuing Master’s Programme in Public Policy at the National Law School of India University. She can be reached at smitamutt@nls.ac.in)

References

Eastern Book Company. 2016. Minimum Wages Act, 1948 [Act 11 of 1948]. 28th . Lucknow: EBC Publishing (P) Ltd.

Express News Service. 2016. “Revise auto, foundry workers’ wages by November 30: Karnataka HC to the government.” The New Indian Express Online. October 29. Accessed December 2016. http://www.newindianexpress.com/cities/bengaluru/2016/oct/29/revise-auto-foundry-workers-wages-by-november-30–karnataka-hc-to-government-1532986.html.

Sampath, G. 2016. “Do we need a minimum wage law?” The Hindu Online. September 1. Accessed December 7, 2016. http://www.thehindu.com/opinion/op-ed/Do-we-need-a-minimum-wage-law/article14616002.ece.

Supreme Court of India. 1954. “THE EDWARD MILLS CO. LTD., BEAWAR, AND OTHERS Vs. THE STATE OF AJMER AND ANOTHER.” Judgment Information System (JUDIS). Accessed December 2016. http://judis.nic.in/supremecourt/imgs1.aspx?filename=889.

Featured images source

http://thinkhrm.blogspot.in/2015/10/minimum-wages-revised-in-haryana-wef-01.html

http://zeenews.india.com/tags/minimum-wages.html

The voice for change

The  discourse on violence against women and marital rape

TRISROTA DUTTA

Centuries ago, in a much more conservative world driven by monarchy and totalitarianism the British Chief Justice Sir Matthew Hale said, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract” (Rath n.d.). In the same context, in 2015 Maneka Gandhi who is the Indian Union Cabinet Minister for Women and Child Development while answering a question at the Rajya Sabha said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc” (Roy 2016). After years, of being conditioned by modernisation in all spheres the deep-rooted patriarchal beliefs have remained unchanged. This statement has not only led to a considerable amount of disappointment but also validates the existing customs and beliefs which legitimise the rape of a spouse.  

Background to the controversy

Almost one out of two women falling within the age group of 15-49 have experienced domestic violence of mental and physical form at the hands of their husbands. It has been reported that almost 19 percent of women have faced lifelong episodes of sexual violence (Shagun Sabarwal n.d.). In the present day, studies indicate that between 10 and 14 percent of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25 percent of rapes committed. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 years have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husband’s families. 56 per cent of Indian women believed occasional wife-beating to be justified. The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex is an obligation in a marriage and a taboo in the society hence there is a chronic lack of awareness among the people as people do not talk about it. In a fast modernising society the one which is building by imitating the west, the idea of casual sex is a monopoly of the patriarch. Women engaged in casual sex are regarded as filthy and impure. The status of women is contentious to the norms set by the society which any woman should conform to in order to be accepted in society such has been the sermon of the existing patriarchy.

In India, the 2013 amendment to the Criminal Law increased the age of consent to 18 years which means that any sexual advances over a minor within or outside marriage, with or without consent will be considered as rape. It is true that in rural India girls get married in their early teens and this trajectory stems from the conception that a girl child is a curse on the family. Research in this area also indicates that the husband’s reaction towards dowry during marriage often lead to a situation of physical violence in the marriage. Three important characteristics of the husband which determine their character are years of schooling completed, alcohol use and reaction to the dowry (Shagun Sabarwal n.d.). In pockets where these indicators show less progress are the areas prone to accepting and practising social violence. In the case of women, it was found that factors like financial status, freedom of movement and level of autonomy in the household. Financial autonomy assessed whether or not the respondents was allowed to set aside money for their use or had the power to make decisions regarding household expenditure. Freedom of movement indicated whether or not the person had the liberty to travel on her own or needed permission in order to venture out. For household decision-making autonomy, three items were considered. Respondents were asked whether they took decisions on the following, seeking health care, purchasing, and visiting relatives and friends. In most cases the responses were negative. Sneha’s Crisis Counselling Centre, an NGO in Dharavi, Mumbai, recorded 664 cases of domestic violence in 2015, 159 women also reported among other issues, marital rape. At the counselling centres at KEM and Sion hospitals, among the 218 cases of domestic violence received in 2015, 64 women said that they faced marital rape (Srivastava 2016).

A study was conducted with eight states: Punjab, Haryana, Uttar Pradesh, Rajasthan, Gujarat, Maharashtra, Madhya Pradesh and Orissa. It covered 9,205 men and 3158 women aged 18-49 and the sample was representative across caste, religious and income groups. The National Family Health Survey report showed that vast sexual violence was reported by women within their marriage. The trend of marital rape in India has been catastrophic and the worse has been since there is no law criminalising the act.

2.6-billion-women-live-in-countires-where-marital-rape-is-legal-1

Debate over Marital Rape

Marriage is still perceived as a carte blanche of sexual intercourse in India. Most marriages in both rural and urban India take place against the will of the two individuals. In a country like India which is a manifestation of diverse culture and religion, there is a constant clash between the uniformity induced by the state and the diversity generated by the various social groups. Despite being divided on customs and tradition, the status of women is derogatory across religious and caste/class boundaries. Except for certain tribal groups which are matriarchal societies and follow the matrilineal path of property transfer, the status of women is repressed. Thus in the main land mass of India, the story is different. Marriage in India is a sexual contract. It gives the man an implied consent to enter into such a contract with the woman engaged. Does the woman have a say in it? Is the woman’s right to reject sexual advances from the man accepted and respected? Is marriage a license to rape? The answers to above questions are in negative. Marriage, the way it is perceived in the Indian context is about giving ownership rights to the man over the woman and consequently over her body. The woman is treated as a property transferred from the house she was born in the house where she shall serve. And the act of dowry establishes the legitimacy of such a concept. This denies the woman any agency over her body, its sexuality and its reproductive function (Roy 2016). In a very conservative society like India where sex outside marriage is penalised and sex, in general, is a tabooed word, people are less aware of it and barely comfortable to express their woes of any kind related to sex. The taboo revolving around sex often forces men to enter into a bond of marriage for free access to physical consummation which puts women under threat. There is also a constant need by our society to induce within our minds an elevated value system which we should subscribe to. This elevated value system is far from reality, internalises moral policing, and disregards healthy interaction between opposite sexes. These factors contribute to the repression of feelings and emotions which further culminates in violence in the cruellest form.

Marital-Rape-Law-India-2Refusing to criminalise marital rape is to accept that the sexual coercion against a woman, so long as it is within a marriage will be endorsed by both the Government and society. If women are to wrest control of their lives they have to have the right to say no their husbands without being socially penalised for it. The myth of the ‘wifely duty’ and the ‘conjugal right’ must end because marital sex as all sex must be with mutual consent.  

Our religion is not only conservative but also regressive. It does not allow women to visit a place of worship (especially mosques and temples) or be involved in any sacred rituals while she is menstruating, which demeans the status of women. These acts of disgrace propagate the power of masculinity and ownership by the male over society. In Islam women are not allowed to step inside a mosque, men are allowed to engage in a polygamous way of life which puts women from the first marriage at a vulnerable position with negative security in terms of finance and shelter. In Hindu religion, a woman is considered impure if widowed, she is forced to wear a number of symbols to prove to the world that she is married and the fact that she is another man’s property comes candidly, very well hidden under ‘marriage’. The constitution provides for equality before the law but there is a clash between the provisions of the constitution and the oppression of the religious fanatics. The existence of right-wing politics and the newly elected extreme right-wing political party legitimises the sanction of the religious fanatics.

The fate of Draupadi in Mahabharata as a woman who was never asked for her consent but married to the five brothers is narrated as an illustrious example of marital rape. The heroic act of winning the battle rinses the Pandavas off of the heinous crime they committed over their own wife because marriage is considered a sacred sanctity of love and respect. A society which draws from such myths is in itself the manifestation of patriarchy. The woman is supposed to understand and accept and play a limited role. Any woman who raises her voice and puts across her opinion is rebuked by the society till she has lost her voice or her ability to raise it.

Rape law reforms in India

 In 1972, a 16-year-old tribal girl named Mathura was allegedly raped in a police station. Mathura’s family lodged a criminal complaint against two officers. The Supreme Court eventually threw out the case, saying Mathura’s body bore no outward signs of rape. The ruling sparked protests by women’s groups across the country. The movement led to amendments, in 1983, to the criminal law that dealt with rape. The changes included a new category of rape for offences committed when a victim is in custody of the state. In such a situation, the law said a court should presume a woman who says she did not consent is telling the truth. Previously the law was silent on the matter of rape in detention. The amendments also ruled that rape trials should be conducted as closed proceedings and banned the publication of victims’ identity. After the Nirbhaya incident in New Delhi, the rape laws became strict but marital law exemption has still not been abolished by the State.

The Indian State passed the Protection of Women from Domestic Violence Act in 2005. The definition of ‘domestic relationship’ is broad enough to cover all sorts of household structures. For example, live-in relationships when the couple is not married. The inclusion of this, as well as relationships which fall under categories of fraudulent or bigamous, has increased the ambit of the act extending protection to all those who are victims of sexual violence. In the twenty-first century, the definition of relationship has undergone a change, every relationship does not snowball into marriage. The fact that a piece of paper which declares two individuals married in front of the society cannot be the sanction behind providing immunity against sexual assault and rape. With regard to live-in relationships itself, in a distinctive judgement passed in the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors on 17th May 2010it was decided that a child born out of a live-in relationship is entitled to property (the property owned by the parents, but not ancestral property) (Ravi 2016). Although this has more relevance to property ownership and the Hindu Marriage Act, it is gratifying to know that children born out relationships which are not akin to marriage can also have property rights. Furthermore, the Act also provides relief to domestic violence committed by both male and female relatives of the husband. This extensive reform in the laws for protection of women against domestic violence does not extend protection to particular victims of marital rape per se because not criminalising marital rape specifically means extending sanction to the concept that husbands have the ownership right over their wives and thus are at liberty to consummate conjugal relationship at their own discretion without the wife’s consent and on return the wife is expected to accept.

An attempt to reduce the suffering of women and relieve her from the painful environment is given under chapter XX-A of Indian Penal Code, 1860. Chapter XX-A of Indian Penal Code, 1860, refers to ‘cruelty by husband or relatives of husband’ and includes section 498-A. (Sharma n.d.) It states that if the husband or relative of the husband, subjects the woman to cruelty, it shall be punished with the imprisonment for a term extendable to three years and also be liable to fine.

Is Section 498 a shield or weapon? Explanation- For the purpose of this section, “cruelty” means-

(a) Any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with view to coercing her or any person related to her meet any unlawful demand for any person related to her to meet such demand” (Sharma n.d.)

This section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband but it still fails to draw a clear distinction between consensual sex in marriage and rape in marriage.

After the Delhi gang rape, petitions on the safety of women were made. These petitions established the need to make marital rape a criminal offence. It was recommended that forced sexual intercourse within marriage should be brought within the ambit of rape under Section 375 I.P.C. by deleting Exception 2. Similar reforms have been suggested but have been in the pipe for too long. (Srivastava 2016)

Conclusion

The law which gives immunity to women against harassment have become stronger then why is it still that the woman has to prove her innocence in order to find the guilty? The law definitely provides legal immunity to the victims but is helpless in front of the society. In this context the urban society might have undergone a change but the women in the rural part of the country live in darkness and despair. They need more economic power and political power. One way of giving them economic power is to legalise the dowry money and transform it from being an excessive amount paid to the groom’s family for marrying the girl to the girl’s security money which shall be used by her in times of need. Women, especially in the rural area need economic power not only because that will give them security against violence but because economic power is the right of every citizen. It is true that marriage is a bond built on trust and affection it is a social institution which provides legitimacy to the existing structure of society because society is built on institutions of family and marriage and to deny the existence of any of the institution would violate social norms. But that is not an explanation for a society to fail to look through the atrocities caused by these institutions. A social institution like marriage is not the end to the means. It is only a mean to provide a structure where law and order can function properly and the law is responsible for protecting its people. By not recognising marital rape as a crime the rule of law fails to protect the people and thus lose its legitimacy. Unless a crime like marital rape is criminalised under the Indian administration, development is marred by the iniquity of the society.

(Trisrota is pursuing Master’s Programme in Public Policy at the National Law School of India University. She can be reached at trisrotadutta@nls.ac.in)

References

Rath, Priyanka. “India Law Journal.” India Law Journal. n.d. http://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html.

Ravi, Malavika. The Protection Against Domestic Violence Act, 2005. Blog, Feminism in India, 2016.

Roy, Vaishna. The Hindu. March 19, 2016. http://www.thehindu.com/features/metroplus/woman-uninterrupted-the-marital-rape-debate/article8370439.ece (accessed January 4, 2017).

Shagun Sabarwal, K.G Santhya, Shireen J Jejeebhoy. “Economic Political Weekly.” Determinants of Marital violence, n.d.

Sharma, Richa. Section 148 IPC. Online Law Journal, Legal Service India, n.d.

Srivastava, Roli. Marital rape: the statistics show how real it is. Newspaper report, Mumbai: The Hindu, 2016.

 

Featured image source:

https://www.internationalwomensday.com/Resources

http://mychoicesfoundation.org/peacemaker/2016/05/16/why-its-time-india-criminalised-marital-rape/

 

A peek into the mise en scène of climate diplomacy

APOORVA SRINIVAS

“Paris Agreement is not ambitious enough since it has only given effect to soft obligations,” says Mr. Raman Mehta, an expert on climate change. 

In his special lecture with Public Policy students, the batch of 2016-18, he spoke on “The Science of Climate Change: Feeding into the politics of Climate Change and Paris Agreement” on 10th and 11th of January 2017. He gives a glimpse into the seriousness of India in integrating climate change concerns into development strategies, plans, and programs. In the past, Mr. Raman Mehta has worked on the issues of forests and wildlife at The Indian Institute of Public Administration, Department of International Development at the British High Commission, on conservation and management of protected areas at World Wide Fund for Nature – India, on developmental issues, climate change, social inclusion and public policy at ActionAid – India. He is currently the Policy head at Vasudha Foundation. He works on demystifying the different facets of sustainable development and climate change through an umpteen number of research work and presence at international conferences.

The design of Climate pledge

Paris Accord glorifies the bottom-to-top approach giving the freedom for all the countries to design their own INDC’s (Intended Nationally Determined Contributions) justifying on how the contribution is fair and ambitious towards achieving the objective of the UN’s climate convention and the approach regarding the calculation of the Green House Gas emissions. This means each country can show a different base year from which emissions will be reduced which obliterates the historical responsibility of largest producers of industrial carbon emissions from leading the cause. The developing countries feel this is the cheating point. The Agreement will have the legal force when countries accounting for 55 per cent of global GHG emissions deposit their instrument of ratification, the threshold which was achieved on 5th October 2016. Even though large emitters like US, China, EU, India have ratified the accord, the challenge is to see how strong and full-flavored the countries walk the talk apart from their announcements to move ahead. Speaking on this, Mr. Raman Mehta observed that only the clauses which deal with the reporting of GHG emissions are legally binding. Hence, except for the progressive nature of INDC’s, there seem to be no other pressure points.

The call for Climate Justice

Food security is a common sensitive challenge. Deficit rainfall and natural disasters worsen poverty and hunger as vulnerable economies are bearing the brunt of climate change rapidly. More socio-economic issues directly related to the climate changes are encountered on a day-to-day basis which is irrevocable in nature. India reformulated the concept of ‘common but differentiated responsibilities’ by adding ‘respective capabilities’ (CBDR – RC) calling it the bedrock of collective enterprise. This is to clearly indicate that equitable carbon and development space are straightforward requirements of developing countries. Therefore, the commitment to combat climate change is purely under the capacity of such countries whose development is invariably tied to a proportional increase in GHG emissions as history shows. However, in certain sectors like transport, China and India are decoupling by building metro rails in their busiest cities. Affordable and zero carbon emissions in the mass public transport sector of low and middle-income countries is the need for millions of low-income families who can save time and money.

Unattained Climate migration and environmental refugees

The Paris Agreement missed the crucial aspect of providing relief and alternative to those who are affected by climate change induced migration, which is expanding every day. The section on climate-refugees
‘Loss and Damage’ makes recommendations for setting up a task force for addressing climate migration. However, the task force has no binding authority and its operations, functions, funding sources are not clear because of which the problem of migration will not be considered as the first priority. The ‘Loss and Damage’ is, therefore, a mere deliberation process under the Warsaw Conference of 2013. Furthermore, the draft of Paris Agreement which contained provisions for Climate Change Displacement Coordination Facility intended to secure emergency relief, target organised migration and planned relocation of displaced people, compensating for those displaced does not feature in the final text of the Accord.

Concern regarding the Climate Finance

The most contentious issue of the climate change agreement is regarding the investment. Mainly the funding and disbursement processes for efficient technology transfer to enable green transition and carbon peaking of developing economies. The developed countries are hesitant with this responsibility and are often unclear and silent on the ways to enable the processes like sources of funding, terms of funding, purpose of funding, the agencies (public sector or private sector) of funding and the kind of funding. Most often the use of political ambiguous language of financial compensation and the rehabilitation is spoken about extensively. Mr. Raman Mehta reflects on the fact that ‘compensation paradigm’ of the Paris Agreement has caused immense pressure and anxiousness among the developed countries which is inhibiting the cooperation for seamless flow of finance from the developed to the developing countries. This diluted mindset is a threat and a menace as it can stall the process of implementation of clean energy systems, which are undoubtedly expensive, leading to disproportionate burden on the developing countries.

The common thread for the all the countries

Helvetas06So far as the extreme weather changes are concerned and maintaining the balance between inclusive economic growth and social development, the policy matrix in developing countries is stratified with priorities of Sustainable Development Goals, which seeks to eradicate poverty and ‘leave no one behind’.

India’s two major international efforts in launching the International Solar Alliance to form a group of 107 sunshine countries to enable them to switch to a low-carbon path by solar power utilization and ratifying the Paris Agreement on 2nd October 2016, on the International Non-Violence Day expresses its aspiration to tackle climate change with a forethought to internalize the principles of Mahatma Gandhi in all its endeavours. However, the local urban environment in India tells a different story in the efforts to switch to low-carbon path. In the year 2000, New Delhi mandated the use of CNG in all public vehicles to mitigate vehicular air pollution showing improvement in air quality, yet in the past two years Delhi is among the top cities in the world highly affected by air pollution. The lack of constant innovation, increased urban sprawl, growth of personal vehicles, biomass burning, lack of pollution checks on the industries in rapidly growing cities have negated the gains of focused policies on curbing sectoral air pollution. India must therefore invest in comprehensive planning, legislation and finance the grassroots level of governance on recycling, renewable energy sector, integrate critical infrastructure with technology, engage in community centric territorial planning that control rural-urban continuum. 

        Mr. Raman Mehta explained how the process of climate change leads to dangerous feedback loops – increased number of warm and cold days accompanied by extreme weather fluctuations, heavy precipitation and submergence of deltaic regions and islands, mass displacement of ice sheet and melting of glaciers such as the recent breaking of massive ice block in Antarctica and the rift that grew by 18 kilometers. He further said, this has put a focus on the need to look for innovative mitigation measures more intensely than the adaptation measures, as the latter is finite and limited.

It is often understood that climate change is only part of the problem, there are other factors like human led land use changes and deforestation that pose immediate and deeper problems affecting daily life. Humanitarian crisis related to civil unrest like migration and military conflict influenced by climate change are becoming more prominent, such as the ongoing Syrian crisis which illustrates the culmination of agricultural drought, with political failure and willpower to mitigate the challenges of dwindling resources. Therefore wide-spread negotiations continue to be focused on climate change on the principle of equity and shared vision. These have in the past lead to formulation of initiatives like international emissions trading, clean development mechanism, joint implementation. More recently, carbon capture sequestration has emerged as a niche effort in energy sustainability. The cornerstone is to invoke global solidarity in action plans without the vested business and diplomacy of trying to pressurize the finance receiving nations to manipulate their national economic policies. Policy decisions which require adequate assessment of nature’s resilience capacity, conserving forest wealth, disaster management and rural livelihood security are immediately required to be chartered out with expertise and institutional capacities indigenous to each economy.

(Apoorva is pursuing Master’s Programme in Public Policy at the National Law School of India University. She can be reached at apoorvas@nls.ac.in)

Featured image source:

https://climate.nasa.gov/effects/

http://science.howstuffworks.com/environmental/green-science/climate-refugee.htm

http://www.welthungerhilfe.de/en/sustainable-development-goals.html

The Religion of kindness

APOORVA SRINIVAS

 

dalailama

His Holiness The XIVth Dalai Lama delivered a lecture at the National Law School of India University, Bangalore on 15th December 2016.

 

We are often confronted with questions like ‘What will save the world? What is the purpose of life? What is the source of happiness? Which Dharma to follow? What will seal our fate as humanity is outreaching its own limitations in the Twenty-first century?’

The words of the Dalai Lama invoke us into understanding the pursuit of happiness, secular ethics of compassion and forgiveness, and religious harmony for inner and world peace!

Most of us know of The Dalai Lama as a spiritual leader who is the face of the non-violent struggle in Tibet for democracy and sovereignty. It was surprising to also see his humorous side, accompanied by a charming smile and mesmerising humility. According to him, kindness is a religion to be followed as a way of life by one and all. He said, “Be kind whenever possible. It is always possible”. He spoke of profound values in a simple language and the need for benevolence in our daily lives.  He made it possible for us to be in sync with him throughout and in no time we had become very fond of him.

While narrating the history of Buddhism in Tibet, he acknowledged India for its long history of the religious harmony existing alongside diversity in custom, tradition and language. He reasoned that occasional disturbances are inevitable. Therefore, we must work hard to build unity wherever we go and embody universal human values.

dalai-lama

The Nalanda tradition of Buddha Dharma of India which reached Tibet in the eighth century permits a great deal of investigation and experimentation. It is not followed as a blind faith but rather invites both scholars and followers to ponder over its principles in a scientific manner and either accept or reject them. For this reason, the studies of the monks in the disciplines like psychology, cosmology and physics are welcomed all over the world for its merit in observing rigorous thinking and the art of embodying questioning in their practices. The Buddhist meditation technique of Vipassana, meaning analytical meditation, focuses on inquiry and the need to suppress one’s sense of anger and attachment.

His Holiness, The Dalai Lama proposed that the real purpose of life is happiness and the world is in misery today because we give too much emphasis on narrow-minded, superficial differences. He expressed his concern for the current trend in suicides, saying that the modern education system is missing the values and consciousness which are crucial for learning, rather it has induced more anxiety and stress. We must not lose hope, but have a better understanding of the workings of the mind and emotions, which is an effective remedy to the problems.

In the political sphere, Dalai Lama pressed that the protection of Tibet and its Buddhist culture is crucial. In 2011, he voluntarily retired from his political role within Tibet, transforming a tradition of four centuries in favour of a more democratic system. In his interaction with National Law School students, when questioned about the principle of non-interference in the affairs of the country, he said that one must always choose a middle path. This is based on the philosophy that we are all human beings, who cannot be blind to the reality nor can we act beyond reason. It is for the same reason that he supports Marxism, as it is concerned with redistribution of wealth but disapproves what Lenin believed in. He issued a call for the youth of the Twenty-first Century to be united in the face of a global crisis which is confronted with a rapid pace of moral decadence like never before. Rising intolerance, attacks on innocents, the spread of greed, money and weapon need to be combated by a resurgence of kindness and virtue – a philosophy of humanism which shall unite, rather than divide us. He ended the note with a strong message saying that the Twenty-first Century should be a peaceful century where violence should be replaced by discussion and exchange, thus leading to a Century of Dialogue!

(Apoorva is pursuing Master’s Programme in Public Policy at the National Law School of India University. She can be reached at apoorvas@nls.ac.in)