Discourse on Rights in India: Debates and Dilemmas 9781138056244, 9780429448256, 9780367479435

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Discourse on Rights in India

This book is a compelling examination of the theoretical discourse on rights and its relationship with ideas, institutions and practices in the Indian context. By engaging with the crucial categories of class, caste, gender, region and religion, it draws attention to the contradictions and contestations in the arena of rights and entitlements. The chapters by eminent experts provide deep and nuanced insights on the intersecting issues and concerns of individual and group identities as well as their connection with the state along with its multifarious institutions and practices. The volume not only engages with the dilemmas emerging out of the rights discourse but also sets out to recognize the significance of a shared commitment to a rightsbased framework towards the promotion of justice and democracy in society. The book will be useful to academics, social scientists, researchers and policymakers. It will be of special interest to teachers and students in the fields of politics, development studies, philosophy, ethics, sociology, gender/women’s studies and social movements. Bijayalaxmi Nanda is Associate Professor, Department of Political Science, Miranda House, University of Delhi, India. Her areas of specialization include political theory, feminist politics and human rights. She has been conferred the Teacher’s Excellence Award (2017) by the University of Delhi. She is actively involved with campaigns for the rights of girl children and women in India for the past two decades. Her publications include Sex-Selective Abortion and the State: Politics, Laws and Institutions in India (2018), Human Rights, Gender and Environment (co-authored, 2007) and Understanding Social Inequality: Concerns of Human Rights, Gender and Environment (co-edited, 2010). She has also contributed chapters to edited volumes and has written extensively on issues of gender discrimination, girl-child rights, health and education policies, human development and human rights. Nupur Ray is Assistant Professor, Department of Political Science, Kamala Nehru College, University of Delhi, India. Her areas of interest include political philosophy, feminist politics and political theory. She is associated with campaigns to counter violence against women in India. She has written extensively on the rights discourse and has published ‘Exploring ‘empowerment’ and ‘agency’ in Ronald Dworkin’s Theory of Rights: A Study of Women’s Abortion Rights in India’ in the Indian Journal of Gender Studies (2014). She has contributed chapters to edited volumes and presented papers at various national and international conferences.

Not only does this study engage with the rights discourse on its broader theoretical terrain but it also carries a particular relevance for an India whose unmatched diversity of cross-cutting identities poses distinctive problems that need to be addressed if we are to move towards a more humane and democratic order. Achin Vanaik, Professor and former Head, Department of Political Science, University of Delhi, Delhi, India This book takes an in-depth and a contemporaneous look at some of these vexed dilemmas to provide us the much-needed clarity on how best the framing of rights through the discourse of intersectionality can reconcile these insurmountable tensions. Ajay Gudavarthy, Associate Professor, Centre for Political Studies Jawaharlal Nehru University, New Delhi, India In these times when human rights are in peculiar jeopardy, this book brings the dilemma of rights in the centre stage of discourse and debates by theorising the issues, examining the contestations and critiquing the state. Nothing could be as timely as this erudite work of high academic intensity. Sanghmitra Sheel Acharya, Professor and Director, Institute of Dalit Studies, New Delhi, India

Discourse on Rights in India Debates and Dilemmas

Edited by Bijayalaxmi Nanda and Nupur Ray

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Bijayalaxmi Nanda and Nupur Ray; individual chapters, the contributors The right of Bijayalaxmi Nanda and Nupur Ray to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-138-05624-4 (hbk) ISBN: 978-0-429-44825-6 (ebk) Typeset in Galliard by Apex CoVantage, LLC

To my mother Manorama and my daughter Akshara – Bijayalaxmi Nanda To my parents Rai Anand Ray and Dr Nutan Ray – Nupur Ray

Contents

List of contributors Preface Acknowledgements List of abbreviations Introduction: discourse on rights in India: debates and dilemmas

x xiii xv xviii

1

B I J AYAL AX M I N ANDA A ND NU P U R RAY

PART I

Theorizing rights: diversity and difference 1 Dimensions of power and social transformation

31 33

M AN O RAN J AN MO HA NT Y

2 Constitutionalizing rights, negotiating difference: the Indian experiment

57

AS H O K AC H AR YA

3 Gender, rights and the justice gap: going beyond the politics of difference

88

VI D H U VE RM A

4 Law, rights and politics: dilemmas and responses

113

AN I TA TAG O RE

5 Human rights, climate change and climate justice B RO O KE AC KE RL Y

135

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Contents

6 What can human rights add to the fight against corruption? Some lessons from India

151

M I TU S EN G U P TA

PART II

Gender, religion, family, work, caste and community: issues and contestations 7 Sex-selective abortion and reproductive rights: a syncretic feminist approach

177

179

B I J AYAL AX M I N A NDA

8 Bodily rights and agency: looking at the rights discourse of women in prostitution

215

N U P U R RAY

9 Women in politics and the subject of reservations

247

M AR Y E . J O H N

10 The triple talaq controversy: gender concerns and minority safeguards

273

F L AVI A AG N E S

11 Women and disability: issues of care

297

AN I TA G H AI

PART III

The ‘myth’ of conflicting rights: a critique of the Indian state

317

12 India’s education policy and failures of empathy

319

H ARS H M AN D ER

13 The ‘right’ music: caste and ‘classical’ music in south India KRI S H N A M EN O N

338

Contents 14 The trajectories of work, sexuality and citizenship: the rights of the transgender in India

ix 346

S KY LAB S AH U

15 People and the terrains: PESA reconsidered

358

AJ AY D AN D E KAR

16 Dilemmas in Kashmir: a human rights perspective

367

S I M P L E M O H AN T Y

17 Beyond conclusions: discourse on rights in India: a case for reflective autonomy

381

B I J AYAL AX M I N ANDA A ND NU P U R RAY

Index

403

Contributors

Ashok Acharya is Professor, Department of Political Science, University of Delhi, India. He has been the recipient of the Henry Hart Rice award in Global Justice and South Asian Studies, MacMillan Center, Yale University (2012–2013) and the Birmingham-India Social Science Fellowship, University of Birmingham (spring 2012). His publications include Citizenship in a Globalizing World (2012) and Political Theory: An Introduction (co-edited with Rajeev Bhargava, 2008), besides chapters in several books. Brooke Ackerly is Professor at Department of Political Science, Department of Philosophy (Secondary Appointment), Community, Research and Action (Secondary Appointment) and Affiliated Faculty Women and Gender Studies, Vanderbilt University, Nashville, USA. Her publications include Political Theory and Feminist Social Criticism (2000) and Universal Human Rights in a World of Difference (2008) besides many other articles in journals. She is the co-editor of International Feminist Journal of Politics (2018–2021). Flavia Agnes is a women’s rights lawyer. A pioneer of the women’s movement, she has worked on issues of gender and law reforms. As co-founder of Majlis, a legal and cultural resource centre based in Mumbai, India, her primary engagement has been to provide quality legal services to women and children. She is the author of Law and Gender Inequality: The Politics of Personal Laws in India (2001) and Women and Law (co-edited with Sudhir Chandra and Monmayee Basu, 2016). Ajay Dandekar is Director of the School of Humanities and Social Sciences (SHSS) and Center for Public Affairs and Critical Theory (C-PACT) at the School of Humanities and Social Sciences, Shiv Nadar University, India. His publications include Ecology Economy: Quest for a Socially

Contributors

xi

Informed Connection (co-authored with Felix Padel and Jeemol Unni, 2013). He has published widely on the issues of Denotified Tribes and Agrarian Crisis in several journals. Anita Ghai is Professor of Gender Studies at School of Human Studies, Ambedkar University, Delhi, India. Her publications include (Dis) Embodied Form: Issues of Disabled Women (2003) and The Mentally Handicapped: Prediction of the Work Performance (co-authored with Anima Sen). She is a disability rights activist in the areas of education, health, sexuality and gender. Mary E. John is senior fellow, Centre for Women’s Development Studies (CWDS), New Delhi, India. She has been working in the fields of women’s studies and feminist politics for many years. She was Director of CWDS (2006–2012), and Associate Professor and Deputy Director of the Women’s Studies Programme at Jawaharlal Nehru University, New Delhi (2001–2006). Her publications include Women’s Studies in India: A Reader (2008), Contested Transformations: Changing Economies and Identities in Contemporary India (co-edited with Praveen Kumar Jha and Surinder S. Jodhka, 2006) and A Question of Silence? The Sexual Economies of Modern India (co-edited with Janaki Nair, 1998). Harsh Mander is Director, Centre for Equity Studies, and founder of the campaign Aman Biradari, for secularism, peace and justice in India. His books include Looking Away: Inequality, Prejudice and Indifference in New India (2015), Fatal Accidents of Birth: Stories of Suffering, Oppression and Resistance (2016), Unheard Voices: Stories of Forgotten Lives (2001), The Ripped Chest: Public Policy and the Poor in India (2004), Fear and Forgiveness: The Aftermath of Massacre (2009), Fractured Freedom: Chronicles from India’s Margins (2012), Untouchability in Rural India (co-authored with Ghanshyam Shah, Sukhadeo Thorat, Satish Deshpande and Arnrta Baviskar, 2006), and Ash in the Belly: India’s Unfinished Battle against Hunger (2012). He is a human rights and peace worker, writer, columnist, researcher and teacher and works with survivors of mass violence, hunger, homeless persons and street children. Krishna Menon is Professor, Gender Studies, School of Human Studies, Ambedkar University, Delhi, India. Her publications include Human Rights, Gender and Environment (2009) and Women and Political Process (2015). She has also published in several journals and books and is an editor of International Feminist Journal of Politics. Manoranjan Mohanty is a Former Professor, Department of Political Science, University of Delhi, and Vice-President, Council of Social

xii

Contributors Development, India. He has been a part of the founding and evolution of ICS, the Developing Countries Research Centre at Delhi University and Gabeshana Chakra and Development Research Institute in Odisha. His publications include Class, Caste, Gender: Readings in Indian Government and Politics (2004), Grassroots Democracy in India and China (co-edited with George Mathew, Richard Baum and Rong Ma, 2007), India Social Development Report (2010), Weapon of the Oppressed: An Inventory of People’s Rights in India (co-authored with K. B. Saxena, Gilbert Sebastian and Prashant K. Trivedi, 2011).

Simple Mohanty is Assistant Professor of Political Science at Shaheed Bhagat Singh College, University of Delhi, India. Her research interests include religio-political mobilization in Jammu & Kashmir, civil society, secularism and communalism in India. She has published articles in popular journals and chapters in books. Skylab Sahu is Assistant Professor at the department of Political Science, Miranda House, University of Delhi, India. She has published her research articles in edited books and several refereed journals like Sociological Bulletin, Journal of Health Management, Indian Journal of Political Science, Indian Journal of Social Work and the like. She is the author of Gender, Sexuality, and HIV/AIDS: Exploring Politics of Women’s Health in India (2015). Mitu Sengupta is Associate Professor at the Department of Politics and Public Administration at Ryerson University, Canada. She is a senior visiting fellow at the Institute for Human Development, New Delhi. Her books include Human Development in the Global South: Emerging Perspectives in the Era of Post-Millennium Development Goals (2014). She has also published several chapters in various international publications. Anita Tagore is Assistant Professor at the Department of Political Science, Kalindi College, University of Delhi, India. She works at the intersections of law and gender and has published in several journals. Vidhu Verma is Professor, Centre for Political Studies, School of Social Sciences, Jawaharlal Nehru University, New Delhi, India. Her publications include Unequal Worlds: Discrimination and Social Inequality in Modern India (2015), Non-discrimination and Equality in India: Contesting Boundaries of Social Justice (2012) and Malaysia: State and Civil Society in Transition (2002).

Preface

This book has evolved over a period of four years. Our interest in the rights discourse combined with our engagement with teaching political theory and social movements in India stimulated us to think of ways of integrating our concerns. One of the major questions addressing the world today is whether the rights discourse continues to be relevant today. The rights discourse is connected in complex and conflicting ways with ideologies and movements. Competing claims for rights have led to debates and dilemmas. The contributors to this volume are experts in their fields, and they analyse the discourse on rights from different vantage points. They examine the origin and evolutions of those rights, the contradictions that exist therein and the need for a renewal of interests around the discourse. Ultimately, the reclaiming of rights rests on the conviction that individuals and groups have rights-based on a democratic principle which recognizes them as equals. The volume specifically sets out to explore inequalities, exclusions and discriminations. The setting of the theatre of rights in this book is India. Our contributors have engaged with various nuances of the discourse. They have raised fundamental questions of democracy, equality and justice. They have also argued for a reconciliation of contradictory positions on behalf of accessing rights for the marginalized and the excluded. The demands for rights have had a deep connection with the democratic structures and practices. Rights have had a tenuous relationship with laws and the state, yet at the same time, within a democratic set-up the demand for rights has been considered legitimate and as having liberatory potential. In the contemporary world, the emancipatory potential of the rights discourse and its relationship with the democratic state is seen as conflicted and contested more than ever before. In India, the multiple diversities and intersectional ties make it imperative for us to analyse this further. Do we abandon the rights talk for an emphasis on duties and obligations of citizens? Are we to build a stable, orderly society by homogenizing ‘chaotic’

xiv

Preface

and ‘messy’ differences through denial of rights to the excluded and marginalized? How do we reconcile group rights and individual rights? What is the relationship between obligations and rights, and how do we come to a consensual standpoint on both these seemingly contradictory positions? The engagement of the collection of chapters here is to provide the historical and conceptual explorations on the rights discourse in India. It examines the contemporary debates and dilemmas that exist in the field and strives to focus on a need to redefine them in the hope of retrieving the rights discourse as a measure of democracy, equality and justice. The discourse on rights in India is an open-ended, dynamic and fluid one. We hope the book encourages readers to engage with the various facets of the discourse and its debates and dilemmas. The strength of reconciling competing and conflicting rights in order to achieve a modicum of equality and justice is always a cause for reflection, more so today than ever before.

Acknowledgements

The origin of this book is an inter-generational conversation between both of us over three decades when we were in a teacher–student relationship in Miranda House University of Delhi. This has continued through different phases of teaching, learning, activism and researching to the present when we are colleagues in Miranda House College and Kamala Nehru College respectively. The bonds of teaching and learning reaffirmed our joint belief that our various reflections around the debates and dilemmas existing in the rights discourse need more than just conversations! So we thought of bringing together this volume. Our first acknowledgement goes to the unique bond that evolves between teachers and students over a period of time. Coincidentally, some of our contributors have been either our teacher or our student at some point of time. This is also an acknowledgement of the significance of the liberal university spaces that makes possible this kind of churning, learning, disagreeing and debating. We would like to extend our appreciation to a number of people who made this project possible through their invaluable support and guidance. Due to constraints of space we can only name a few. It was Seema Sinha’s personal interest and initiative that led to our reaching out to Routledge. We are highly indebted to her for the same. Conversations with Shashank Sinha at Routledge at various stages of developing this volume have enriched its structural unity and helped us develop the concepts and methodological framework of the same. His intellect and wisdom inspired us in more ways than one, and we are immensely grateful for the same. We are pleased to record our gratitude to Antara Ray Chaudhury of Routledge for her important insights, her commitment to our work and her ability to combine firmness and friendly qualities in her approach. We are also grateful to the three anonymous reviewers for their comments, which we strived to incorporate to the best of our abilities.

xvi

Acknowledgements

Our contributors have also been fellow travellers, and we are grateful to each of them for offering us support through their writings and their encouraging words. Our conversations with Professor Mohanty and Harsh Mander when we began the book were most inspirational, and we would like to record our deep respect for both of them. Professor Vidhu Verma was an immense source of support and inspiration too, and we are grateful to her for the same. A roundtable discussion with some of our authors with the support of Prof. Ashok Acharya helped us focus our attention on the idea of intersectionality. The UGC CAS – SAP national seminar titled Democracy and Rights Discourse in India: Norms, Institutions and Practices at the Department of Political Science, University of Delhi, organized by us along with Prof Acharya, helped us reflect on the volume and deepen the nuances of the debates and dilemmas of rights discourse. We are grateful to him and all the participants of the seminar who enriched our reflections through their discussions. Our respective families deserve our appreciation. Bijayalaxmi would like to record her gratitude to her daughter Akshara and Father A. R. Nanda, both of whom contributed in their distinctive ways to the volume through conversations combining critique and creativity. Her spouse Rajesh painstakingly went through the volume, helping with editing, structuring and many other tasks. A special note of appreciation to him. A word of appreciation goes out to her father-in-law M. P. Singh for his encouragement and especially to her sister-in-law Seema Sinha, who was solely responsible for the initiation of this volume. Nupur Ray would like to record her appreciation for the unconditional support of her mother and mother-in-law that made it possible for her to work on the book. She is grateful to her daughter Manishka for her cheer and enthusiasm and her son Atharva for being born in the midst of it all! Her spouse Saurabh’s encouragement and gentle helping ways are always a source of strength and motivation. She is thankful to her brother Satyam and his spouse Priyanka who stood by her, as always. Finally, we are indebted to our students past, present and future, who stimulate us with their conversations and ideas and shape much of our thinking on the issue. We would also like to thank Sara Veal for her editorial assistance. We acknowledge the struggles of all those individuals and groups who are striving to claim their rights. We hope our volume will strengthen their voices and enliven the democratic practices and processes of India. The authors and publishers would like to gratefully acknowledge the permission to reproduce the following essays: Ashok Acharya’s article ‘Constitutionalizing Difference: The Indian Experiment’ in Rajeev Bhargava and Achin Vanaik (eds), Understanding

Acknowledgements xvii Contemporary India: Critical Perspectives (Delhi: Orient Blackswan Ltd., 2010). Manoranjan Mohanty’s essay was first published as ‘Dimensions of Power and Social Transformation’ in Mohanty, Manoranjan, Class, Caste, Gender, pp. 14–44 (Delhi: Sage Publications India Pvt. Ltd, 2004).

Abbreviations

AAP AFSPA AIMPLB AIWC APDP BJP CBI CCT CPI CPI (ML) CPM CSR CVC FIA GDI GDP GEM HDI ICPD IPC IPCC ITPA JKCSS JKLF JSY MKSS MTP MUF MWA NAC

Aam Admi Party Armed Forces Special Powers Act All India Muslim Personal Law All India Women’s Conference Association of Parents of Disappeared Persons Bharatiya Janata Party Central Bureau of Investigation conditional cash transfer Communist Party of India Communist Party of India (Marxist Leninist) Communist Party (Marxist) child sex ratio Central Vigilance Commission Freedom of Information Act Gender Development Index gross domestic product Gender Empowerment Measure Human Development Index International Conference of Population and Development Indian Penal Code Intergovernmental Panel on Climate Change Immoral Traffic in Persons Prevention Act Jammu and Kashmir Coalition of Civil Society Jammu and Kashmir Liberation Front Janani Suraksha Yojana Mazdoor Kisan Shakti Sanghatan medical termination of pregnancy Muslim United Front Muslim Women’s Act National Advisory Committee

Abbreviations NC NCWI NDA NPP NRHM PCA PCPNDT PDP PDS PESA PSA PWDVA RSS RTE RTIA SHRC SITA TISCO UCC UPA WIA

National Conference National Council of Women in India National Democratic Alliance National Population Policy National Rural Health Mission Prevention of Corruption Act Pre-Conception and Pre-Natal Diagnostics Techniques People’s Democratic Party public distribution system Panchayats Extension to Scheduled Areas Act Public Safety Act Protection of Women from Domestic Violence Act Rashtriya Swayamsevak Sangh right to education Right to Information Act State Human Rights Commission Suppression of Immoral traffic in Women and Girls Act Tata Iron and Steel Company Uniform Civil Code United Progressive Alliance Women’s Indian Association

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Introduction Discourse on rights in India: debates and dilemmas Bijayalaxmi Nanda and Nupur Ray

Through the eyes of a high-flying night bird, we take in the scene from mid-air. In our broad sweep, the discourse on rights looks like a gigantic creature – or more like a single collective entity created by many intertwining organisms. Countless arteries stretch to the ends of the elusive body, circulating a continuous supply of fresh blood cells, sending out new data and collecting the old, sending out new contradictions and collecting the long-standing ones. To the rhythm of its pulsing, all parts of the web flicker and squirm.1 The discourse on rights is an ever-expanding web of debates and dilemmas. Exploring the competing and conflicting terrain of rights and the intricacies of this web is an arduous task which we cautiously embark on. While the concerns around recognition and access to civil, political and social rights have preoccupied political philosophers and policymakers for long, new questions and challenges have emerged in the discourse today. One of the major questions confronting the world today is whether the idea of rights – either of individuals or of groups – needs to be set aside to respond to the urgent call of the neo-liberal economic order and the exigencies of conservative politics. Conflicting and competing rights of individuals and groups mould a significant part of the debates and dilemmas in the rights discourse. Looking closer at the Indian scenario, the exclusion and denial of rights based on categories of caste, class, gender, ethnicity, age, region and religion informs and shapes the rights discourse in myriad ways. The Indian Constitution is proclaimed as a ‘living document’ owing to its constant evolution in response to the changing needs and demands of the times. The preliminary questions in the debate like ‘whose rights’, ‘which rights’ and even ‘why rights’ have been succinctly addressed in its length and breadth, whether this is in its chapter on Fundamental Rights (Articles 14–32)2 or in its very philosophical foundation. Many rights, like the right to freedom of speech and expression, the right to practice one’s religion and the right to

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privacy, which have been taken for granted in India, have been challenged from time to time. Being claimed as the world’s largest national identification project, Aadhaar is a 12-digit unique identity number issued to an Indian resident on the basis of their biometric and demographic data. The unique Identification number was envisaged by the government as eliminating fake and duplicate identities which has reduced leakages in many of the government schemes such as MGNREGS, PDS and so forth. This act by the government led to a series of debates and discussions around whether Aadhaar should be made mandatory for the citizens or not. In view of this debate, the Supreme Court passed a nine-bench judgement declaring privacy to be a fundamental right under Article 21 linked to right to life and liberty. While many have celebrated the landmark judgement, others have critiqued it for leading to an erosion of parliamentary democracy.3 While it is true that the present-day politics does bring along its fair share of encroachment of certain rights, the dilemmas concerning the rights discourse are nothing new in this country. The unsettling of some of these basic rights requires serious interrogation. There is also a need for reconceptualization, re-imagination and reconstruction of the debates and dilemmas regarding rights in the face of human rights violations that grip India today. The preservation of India’s democracy rests on two important elements: first, the ability to retain the philosophical traditions of its Constitution and the second, a commitment to respond to the claim for rights of those who are dispossessed and deprived. The exploration of the rights discourse in India thus requires an examination of the country’s diversity and complexity, its turbulent politics and its nebulous society. There have been recent cases of mob lynching and physical assault in the name of punishing those who were in some way suspected or engaged themselves with cow slaughter or beef consumption. It is no coincidence that most of such cases of assault have been targeted against men and women of the Muslim and Dalit communities.4 A campaign titled ‘Not in my name’ brought people together in 2017 from all wakes and walks of life to oppose the targeting of Muslims for beef consumption.5 In 2016, Dalit student Rohith Vemula committed suicide, complaining of discrimination and abuse by the educational institution where he was a student.6 Several people were arrested under sedition laws for expressing their dissent on certain government policies. In Kashmir the clash between the people and the army has reached a zenith following the killing of Burhan Wani, a young militant leader. Hundreds were blinded by pellet guns used by the police, and phone and internet services were suspended in the area. In Uttar Pradesh, 47 police officers were convicted of extrajudicial executions of 10 men. Similar killings also took place in Chhattisgarh, Odisha and Madhya Pradesh.7

Introduction 3 An amendment in the child labour law by the Parliament allowing children to work in their family enterprises was opposed by child rights activists, who were concerned it would affect marginalized groups and girl children. Sexual assaults and other forms of crimes against women continue unabated. Delhi rose to protest and demand safety of women in the public domain after a brutal gang rape of a woman in December 2012,8 while women at Sabrimala demanded to enter the temple that was forbidden to them in 2016.9 The sexual minorities continue to question discriminatory provisions in the Indian Constitution and demand recognition as equal citizens.10 Irom Shamila of Manipur ended her fast after more than a decade for the dignity and rights of her community against the state and its draconian Armed Forces (Special Powers) Act (AFSPA).11 Dalit students stood in solidarity to oppose caste-based social discrimination in university campuses in 2016. The transgender population continue to oppose the laws which criminalize them in the country. While some women’s rights activists are worried about the declining number of girls in the country due to sex-selective abortion, others regard the right to safe abortion as far more significant for women. While many Muslims have signed a petition started by the Muslim Rashtriya Manch12 seeking an end to the gender-discriminatory practice of triple talaq, others are protesting against the petition for triggering large-scale interventions by the state in the personal laws of the community. Nationalism is the new buzzword that the state invokes today amongst people as they are informed of ‘surgical strikes’13 on the neighbouring state and are reminded to stand for the national anthem. As we think about these issues, it strikes us that we are already engaging with the rights discourse, and in the process some profound questions emerge. What are the obligations of citizens towards the state, and who defines it? Shall people accept and accommodate an influx of refugees in their zone, and why? How do we claim basic rights and dignity of women between seemingly competing community and citizenship rights? What does inclusion mean for the marginalized groups like persons with disability, transgenders and Dalits in India? What is the continuing relevance of the AFSPA?14 Is affirmative action necessary for groups that have suffered structural discrimination? Do we have an obligation to the state to the extent that certain community rights can be suspended for the rights of others? What are the ways to acknowledge and recognize the concerns around asserting the rights to equal opportunities and equal dignity across horizontal and vertical inequalities? Moral and political questions are not measured on a single scale with definite ‘truths’ and ‘falsehoods’ but need to be analysed at multiple levels. These are difficult questions with no certain ‘right’ answers, and these dilemmas around rights constitute the essence of this volume.

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These questions that emerge from our everyday lives require us to examine the world around us amidst the competing rights as well as the contestation around rights. The world today exhibits a theatre of competing claims of rights. The idea of rights is a very seductive one and continues to have its hold over human imagination. But engaging with rights and entitlements is strewn with obstacles and challenges. The collection of papers in this book, therefore, explores the various facets of rights in terms of its universalist and relativist contexts. The discomfort of engaging with rights has emerged from a deep-seated confrontation between the ideologies which exist in the world today. There is very little agreement about what rights are, why rights are used within constitutional provisions and provide framework for moral theorizing or about how to reconcile various conflicts that arise due to struggle between contending rights. What should be the parameters for creating a hierarchy of rights or determining the priority of one right over another in a given condition? The chapters strive to examine the issues in the context of India. In this introduction we set out to analyse the theoretical framework of the rights discourse emerging from the Western context, the historical foundations of rights and the evolution of the rights discourse in India. The three sections of the book with its respective chapters are outlined in detail to provide an understanding of its interconnections and the basis of the structural unity of the volume. This introduction critically examines the idea of rights as they exist within political theory and delves into the debates and dilemmas in India in this context. The chapters have addressed these debates and dilemmas and have been involved with issues and concerns emerging out of human rights, gender, environment, sexuality, caste, religion and so on. We have strived to provide diverse viewpoints with a definite coherence addressing the notion of rights and its significance in present times. The outline of each chapter provided in this introduction brings to the fore the distinctive contribution of each theoretical framework, the fierce debates and dilemmas and a vision for reimagining and reshaping of those debates and dilemmas in order to find new ways to envision the rights discourse in India. The concluding chapter, by probing into questions of caste, class, gender, region, religion and ethnicity, explores the need to take a middle path that would bridge the concerns of the relativists and the universalists in order to achieve a modicum of justice, freedom and egalitarianism in society. The feminist lens on rights that engages critically with gender discrimination is used as a viable tool to theorize rights for the marginalized and the unequal in society. It strives to engage with the struggle for rights by marginalized and autonomous groups and examines how this process is linked to the role of the state, world economy and civil society. This volume engages with the

Introduction 5 notion of rights and the significance of rescuing and retrieving it by relying on a shared commitment to differences, debates and disagreements. In order to understand the nuances first we need to engage with the rights discourse theoretically.

The theoretical discourse on rights Three significant trends are discernible in the discourse of rights within political theory: 1

2

3

Shift from individual-based claims to group-based claims like gender, ethnicity, caste, race, religion, sexual preference and so on based on ‘differentiated’ conception of citizenship (Young 1998: 440) which recognizes (rather than stigmatizes their identities) and which accommodates (rather than excludes) their ‘differences’ (Kymlicka 2002: 327) with a simultaneous expansion of demand from civil and political rights to social and cultural rights, coined as ‘multiculturalism’, ‘politics of recognition’, or ‘identity politics’. A growing consensus and assertion among political thinkers to recognize the principle of equality as the basis of social and political policy (Kymlicka 2002: xi) in order to facilitate equitable distribution of resources for all, especially historically deprived/oppressed groups. Women’s issues and rights for gender equality in different societies are being linked to human rights movements (Jaggar and Young 1998: 90) that have led to divisive stands in the feminist movement. On the other hand, there is more emphasis on questioning the gender inequality in the private realm of family by raising issues of sexual abuse, ‘invisible’ face of women’s work, reproductive rights, domestic violence, authoritative distribution of responsibilities in family and so forth.

The contemporary political scenario with the rise of conservative political parties like Trump’s victory in the US, the Brexit referendum in the UK, backlash against Muslim immigrants in the US and the resounding emergence of Bhartiya Janata Party (BJP)15 as the single largest majority party in India have complicated the rights discourse to the extent that certain rights which were unquestioned within the narrative of the rights discourse have been summarily dismissed under the new political praxis. So the dilemma today is that while within rhetoric of the political theory, group rights abound, in political practice they are vulnerable in the name of political expediency and strategy. The rejection of the language of political correctness and a worldwide open acceptance of an expedient politics of ‘othering’ clearly leaves us with more questions than answers. The integral

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links between liberal democracy and certain rights are being dismantled. The upsurge of right-wing politics and governance has led to uncomfortable silences and exclusions. These trends have altered the context and content of debates in liberal theory, questioning its foundations and leading to unpredicted contradictions. Liberal theorists are grappling with issues of competing and conflicting claims between individual and group rights; different identity-based concerns in race, gender, ethnicity, religion; and minority and majority demands. However, the consequential impact is the further widening of an already persisting gap/conflict between liberty and equality in the liberal discourse. The concept of rights is entangled in the intricate web of competing values of liberty, equality and justice in liberal theory. When an individual is given a right in the form of a privilege, claim, power or protection from the state, it entails within the reason or the justification by virtue of which the ‘subject’ has been conferred that right. This ‘reason’ or ‘justification’ determines the scope of rights for individuals or groups which in turn decides their status vis-à-vis each other and the state. The idea that political morality and structures could be built on the basis of ‘individual rights’ as in liberal theory came under attack from Bentham and other utilitarians. In the contemporary period it has been criticized by thinkers like John Gray, Joseph Raz and Richard Wollheim, including Ronald Dworkin. Outside liberal tradition, communitarians, socialists and cultural relativists have rejected this idea, thus declaring a failure of liberalism in responding to new emerging demands of the present age. There is a need to develop a secular moral base of liberal theory that could command moral assent in spite of first order moral disagreement, without claiming to defend a singular good (Ackerman 1980: 10). The book is an attempt to understand the nuances of these issues. Studying the nuances also requires delving into the historical foundations of the rights discourse.

Foundations of rights: a historical perspective As with most other political ideas, we must go back to the ‘Greek theory of rights’ to find its foundational principles. Contrary to liberal theory, Plato and Aristotle developed a republican conception of politics based on the highest realization of individual liberty in political community, preoccupied with the flourishing of justice, virtue and common good rather than a concern with rights as claims of individuals against the state. Though we see an increasing emphasis on rights in thought of the Stoics and some mediaeval writers like Cicero, St. Thomas Aquinas and Jacques Martin, we cannot escape the conclusion that these thinkers were not primarily concerned with the individual; that they were so convinced of the organic

Introduction 7 nature of society and the harmony of the social order that to many of them it seemed ridiculous to speak of the individual apart from the state or society of which he was a member. It is only with the advent of the Renaissance and the Reformation that we find political theory profoundly influenced by what Auguste Comte described as ‘that perennial western malady, the revolt of the individual against the species’ (Ebenstein1947: 124). One of the first and strong reflections of this ‘malady’ came in classical liberalism, particularly visible in the social contract tradition. The foundation of this tradition was the ‘natural theory of rights’ based on inherent and inalienable rights in every individual by virtue of being human beings. It has been revived today in a different form as ‘human rights’. Though thinkers like Hobbes, Spinoza, Locke and Rousseau reached differing conclusions as to the nature of rights, their emphasis greatly increased upon the individual qua individual. Hobbes and Spinoza both treated ‘natural rights’ at some length, but it seems clear that they conceived the term to be almost synonymous with the words ‘power’ or ‘capability’. With them it was in no sense a claim which the individual had upon others independently of his power to enforce it; rather it was a prerogative which the individual exercised in the state of nature independently of and, it would seem, in defiance of his fellow men. In Locke, natural rights carried in political society to protect individuals against state interference and established political sovereignty. In Rousseau, the rights are drawn from the ‘general will’ of community (Commins and Linscott 1947: 240). We see a constrained individual vis-à-vis state, or community and rights could be seen finding their justification in moral claims enforced by the Leviathan (Hobbes) or political society (Locke) or community (Rousseau), recognized as law. The breakthrough came with Bentham, who rejected the natural origin and asserted that a right is a product of enforcement and recognition by the state and hence not prior to the state. Bentham justified that all rights of man are derived from law, which itself is based on its utility for the society. He views them as ‘simple nonsense upon stilts’ (Waldron 1987). Utilitarianism emerged as a widely accepted moral basis of rights within liberal theory. Utilitarianism in a modified version by J. S. Mill (On Liberty) reached its zenith in the nineteenth century, providing justification to social welfare rights and positive liberalism. The extension of political rights to social welfare rights increased the state interference and state dependency in an individual’s life, objected to by the traditional liberals that brought back the focus on individual liberty and negative liberalism evident in the works on libertarians like Nozick and Hayek.16 Basically this came as a rejection of obsession with utilitarianism based on greatest happiness of greatest number as the moral foundations of liberal theory. Then started the search for new moral foundations/

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justifications in a manner that rights could maximize freedom amongst neutral preferences as well as respond to its perils of ‘exclusion’ and blindness to social realities. On the other side of this argument are those like Ronald Dworkin and John Rawls, who believe that there are inviolable rights and that therefore the ‘right’ is distinct as well as superior to the ‘good’. ‘Rights’ for John Rawls are essential instruments to establish ‘justice as fairness’ in society. According to Rawls, justice is the first virtue of society and could be achieved by establishing two principles: firstly, equal right to most extensive liberty compatible with the equal liberty for all and secondly, arrangement of social and economic inequalities in such a way that it brings (a) greatest benefit to the least advantaged and (b) attached to positions and offices open to all under fair opportunity. By basic liberties he meant: Freedom of thought and liberty of conscience; political liberties (for example, the right to vote and to participate in politics) and freedom of association, as well as rights and liberties specified by the liberty and integrity (physical and psychological) of the person; and finally, the rights and liberties covered by the rule of law. (Erin 2001) Rawls’s theory emerged as a new reference point that preoccupied the debates in political philosophy in the late twentieth and twenty-first centuries. He was acclaimed for moving away from individual freedom as the basis of ‘rights’ to accommodating the concern for ‘equality’ and ‘social justice’ in his second principle. Dworkin’s theory of ‘rights as trumps’ emanates from two moral claims that constitutes its foundations: first, ‘right to equal concern and respect’ and second ‘right to moral independence’. By postulating his fundamental claim in equality, Dworkin rejects H.L.A. Hart’s argument that the basic right if any is the ‘equal right of all men to be free’ as well as the individualized conception of rights presented by Nozick. For him, the substitution of freedom with equality would give a better grounding to Rawls’ theory of justice as well (Dworkin 1977). While libertarian thinkers Nozick and Hayek proposed a ‘rights-based liberalism’ in ‘Rights as Entitlements’ and Rawls professed ‘egalitarian liberalism’ in ‘Rights as Primary Goods for Distributive Justice’, Ronald Dworkin merged the two to develop ‘right-based egalitarian liberalism’ and brought the rights discourse to the centre stage as ‘trumps’ in the hands of individuals to protect their liberty from being jeopardized against collective goals and utilitarian aggregates (Dworkin 1977). Amidst the explosion of rights ranging from human rights to environmental rights, there is also a visible backlash to suppress rights at each and

Introduction 9 every level. This backlash is the result of mostly two different schools of thought. The first is the idea that the claim of individual rights to deliver human development and freedom as argued in the liberal discourse is a myth. This school counters it with the duties-and-obligations talk. The impetus to reject rights altogether is based on a philosophical claim about the cultural embeddedness of moral values and a political claim about the authority to interpret such values on behalf of a collective. In the second school, the multiculturalism debate takes culture, ethnicity and religion as morally significant sources of claiming rights. It argues that it is necessary to treat people differently in order to treat them equally. Some positions extend this argument to take account of different preferences and tastes. Michael Walzer’s idea of complex equality takes into consideration the social meaning of certain goods. It explores the complexity of communities in terms of their preferences and believes that any distribution of goods/ rights must vary according to the social value assigned to those goods.17 The right to education may be valued more than the right to food in certain communities, and this may determine the notion of rights. Another view considers the idea of rights as a step forward but not sufficient for the full realization of human dignity. It mainly denounces the state as a viable institution to establish rights and instead looks for alternatives in social movements and civil society. The anti-foundationalism view forwarded by Richard Rorty and others explores the idea of rejecting the foundations of politics and its centrality to understanding the good, the right and the notion of rights.18 It believes that the foundational understandings have been used for centuries to justify discrimination and social inequality. Therefore they suggest that new ways of imagining the world and bringing in a dynamic understanding of rights should be considered. Similarly, some feminists like Susan Okin (1989), Catherine MacKinnon (1987) and Carole Pateman (1988) have critiqued the canons of political theory and have challenged the claims of universality associated with the liberal understanding of rights.

Rights discourse in India Michel Foucault defines discourse ‘as ways of constituting knowledge, together with the social practices, forms of subjectivity and power relations which inhere in such knowledges and relations between them. Discourses are more than ways of thinking and producing meaning’ (Pitsoe and Letseka 2013). The discourse on rights in India thus requires an in-depth understanding of the struggle for rights in India. The trajectory of the discourse of rights in India can be explicitly understood by engaging with the legacy of the making of the Constitution of India.

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The Constitution can be viewed as a syncretic document which is mostly an amalgamation of Nehruvian, Gandhian and Ambedkarite principles. While Indian leaders have disagreed with each other on many issues, the Constitution reflects the thoughts and views of a range of leaders including the three mentioned. In a nutshell, the Nehruvian principles include the idea of secularism and socialistic pattern of society, the Gandhian principles are included in the devolution of decision-making power to the rural grassroots and the Ambedkarite principles are reflected in the policy of affirmative action for marginalized castes as well as in the Fundamental Right to Equality. The Indian National Movement had different streams which contributed to the evolution of our Constitution. As early as 1895 Lokmanya Tilak had published a Constitution of India Bill, in which he had asked for universal adult suffrage, for both women and men, no property qualification, no educational qualification. Even before 1895 the struggle for the Constitution of India had been going on, so the Constitution was not a one-shot affair; actually much of what the Constitution was finally had been worked out through at least the 50 years before that, through debate, discussion, struggle and long deliberations between the different streams of the Indian national movement (Mukherjee 2016: 65). Interestingly the Constitution has also been viewed as ‘a bag of borrowings’. While the chapter on Fundamental Rights has been borrowed from the American Constitution, the Directive Principles of State Policy are from Ireland and the Federal structure is from the Canadian Constitution. This inspiration derived from liberal and democratic constitutions is a reflection of the vision of the architects of our constitution. Right from the social reform movement, the formation of the Indian National Congress to our long-sustained freedom struggle, the debates and dilemmas regarding rights in India remained a part of the public discourse. A reading of the Constitution of India reveals a progressive liberal approach which has over the past 60 years allowed relevant amendments to incorporate many new sets of rights. The Constitution is thus also not infallible and is regarded as a ‘living document’ subject to amendments. These amendments may emerge out of a complex interplay of forces. Along with the democratic forces at work, power relationships also have a role in the making of the amendments. The set of rights available in the Indian Constitution includes individual rights and group-differentiated rights through special representation to disadvantaged groups. The fundamental rights under Chapter 3 of the Constitution were suspended during the time of the National Emergency declared by the Congress Government under the rule of Indira Gandhi in 1974. They were later restored by the Janata Party when it took over power in 1977. A massive people’s movement launched by Jayaprakash

Introduction 11 Narayan had successfully raised questions about the suspension of Fundamental Rights during the emergency. The neo-liberal turn of the world and the reforms of 1991 significantly altered the rights discourse in India. The role of the state was reduced considerably, with the market taking over spheres of individual lives. The accountability of the state in providing rights came to be reshaped and reconfigured under the aegis of the market and other civil society actors. The rights discourse in India was riddled with debates and dilemmas during this phase more than in any other, especially in matters of efficiency versus democracy. The upsurge of right wing politics along with neo-liberal economics did not ebb with the global turnaround in the market. Groupdifferentiated rights have been the most affected during the present period. The two views of rights – the common citizenship model which takes the individual as the unit of the political community and the group-differentiated position that approves protection and rights for communities – are the fiercest battles today (Vanaik and Bhargava 2010: 6–7). The rights discourse in India has been subject to new debates and dilemmas in the present times. The binary of ‘national’ and ‘anti-national’ with its ideological undertones has become an important focal point to understand the debates and dilemmas in the rights discourse in India. The engagement of the movements for expanding rights in India has largely been viewed from a human rights, gender and environment perspective. Long-ranging people’s movements loosely defined and divided under these categories have struggled for rights. The movement for rights has been a continuous one sustained by the caste, class, gender and environmental issues that have been a part of the socio-economic and political fabric of the country. The struggles have not always been successful in gaining rights, but the debates and dilemmas emerging from these struggles have enriched the rights discourse in India. Democratic traditions and pluralistic thinking rest on the foundation of these debates and dilemmas. The debates and dilemmas also exist within the rights that various movements struggle for. The rights which are available and accessible sometimes conflict and compete with each other. Certain rights do not find a place in the constitution and the legislative provisions of the land. The exclusions and inclusions in the rights discourse bring to the forefront the complexity of issues, the need to interrogate the debates and dilemmas and the ability to understand the significance of the rights discourse in India. A comprehensive understanding of all issues is perhaps difficult. However, a broad overview of the same can reveal the nuances of some of the significant debates and dilemmas that shape the rights discourse in India. A narrow understanding of conflicts, competition, debates and dilemmas leads to perpetuating prejudice, stigma and discrimination. A broad overview

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allows scope and space for developing a deep and holistic understanding of the discourse. The intersectionality and diversity of the issue in terms of its class, caste and gender perspective provides hopes and opportunities to continuously renew and reinvigorate the rights discourse. The rights discourse in terms of its gender, religion, caste and community interfaces reveals many elements. When it comes to gender, sustained and well-thought-out women’s movements have successfully struggled for bringing issues like domestic violence, sexual harassment in the workplace, dowry prohibition and rape into the public discourse. The major issues here are about the leveraging of which rights and whether a class or caste perspective should be used and whether women’s rights within community should be brought to the fore. How should religious identity be engaged with? The ideological consciousness of patriarchy shared by the family, state and market alike remains the biggest roadblock to rights for women in India. While the proliferation of women’s rights in the legal discourse has resulted in a public backlash on the issue, the dismal picture of women’s status in India is testimony to the fact that women are a discriminated lot. The Census reports of 2011 have recorded the lowest child sex ratio since independence. The Census and various surveys have also reported high degrees of maternal mortality and infant mortality in India.19 Sexual violence against women and girls is rampant. In terms of the gender empowerment measure (GEM) and Gender Development Index (GDI), we figure at the bottom of the table.20 Clearly there is no escaping the fact that women in India are far from achieving their rights. In terms of minority rights, the majoritarian position is that the appeasement of the minority community has resulted in a proliferation of rights for them. Interestingly the ‘othering’ of the Muslim community also gets inextricably linked with the dispute about Kashmir between India and Pakistan. The fact that these are two different sets of problems requiring different parameters of understanding and resolution is a matter that seems to escape public imagination. Again, the status of minorities in the country reveals a dismal picture. There are very few affirmative action programmes for Muslims in India, the largest minority community. The Sachar Committee Report has brought out that in terms of education, health and income indicators they remain backward as compared to other religious communities (Hasan 2009; GOI 2006). The problem here is that the opposition to the implementation of minority rights is not just from the state but also from the leaders from within their community. While a regressive majoritarian position ‘others’ them, they continue to remain entrenched in backward and patriarchal conditions within their own too (a majority of people within majoritarian communitarian positions remain similarly entrenched).

Introduction 13 How do these debates and dilemmas resolve in the face of rigid political positions and incidents of communal violence in the country? In terms of the rights of those who are oppressed because of belonging to marginalized castes, the majoritarian position is that affirmative action has been available for the last six decades to appease the ‘lower castes’ and has not only perpetuated in vote bank politics, it has also outlived its utility in terms of uplifting the Dalits. Some feel that the upsurge of their rights through affirmative action has led to reversed discrimination against the upper castes. However, the dismal status of those who are in marginalized castes reveals a picture which suggests otherwise. The Amitabh Kundu Expert Group Report has indicated that when it comes to the Dalit community the poverty indicators clearly reveal that the poorest of the poor in the country are the Dalits and the tribals. Social persecution and prejudice continue unabated against them. They continue to exist in the fringes of society (GOI 2008). It is true that affirmative action policies available in India may not have led to the upliftment of the marginalized in the way they were envisaged. However, state intervention continues to be very important in securing their basic rights. The debates and dilemmas need to be engaged with by understanding the nuances of interrogating affirmative action policies as they exist today, the politicization of caste in the country and the absolute need to have a commitment to creating equal conditions and the right to basic dignity for Dalits here. In terms of environment and forest rights the debate has been that between the industrial development of the region versus rights of the people living in that region. The large-scale protests of the people in the region against mining and industries bring to light that the democratic functioning of the state requires an understanding of the movements which participate in the struggle for rights.21 The depletion of natural resources and climate change also require a deeper reflection on the development-versus-democratic discourse. Other issues of intersectional significance include sexuality, disability and age discourses. The issue of sexuality and rights is comparatively new to India. The recognition of the third gender is a progressive one in the country; however, the backtracking on the withdrawal of section 377 of the Indian Penal Code which criminalizes homosexuality reveals that the right to sexual identity remains complicated in India. The debates and dilemmas clearly need an engagement with the understanding of sexual rights in India. The other issue which requires delving into is child rights. While India is a signatory to the Convention on the Rights of the Child (CRC), recent amendments to child labour laws reveal that children will continue to be used as workers at 14 years of age if they work in their own family business or within their own domestic enterprises.22 The Fundamental

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Right to Education (Art 21A) sits uncomfortably with these amendments since it emphasizes education as a fundamental right for children in the country akin to the right to life, and any child involved in labour unfortunately cannot access the same. Child marriage in India is another problem area where rights of children are violated at many levels. A prohibition of child marriage through legislation does not however declare alreadyexisting marriages null and void.23 The right of a child to a life free from abuse and a right to education, basic healthcare and dignity and equality continue to be caught in the dilemma of which rights are to be prioritized and becomes the ground for justification of repressing many rights of children. Acknowledging rights of children could be the starting point of developing a basic minimum position on the rights discourse in India. The volume, divided into three sections, delves into the intricate details of the issues and concerns raised here.

Outline of the volume Jawaharlal Nehru, the first prime minister of India, elucidated the ethos of an Independent India when he declared at the 1930 Lahore session of the Indian National Congress in the following words: We believe that it is the inalienable right of Indian people, as of any other people, to have freedom and to enjoy the fruits of their toil and have the necessities of life, so that they may have full opportunities of growth. We believe also that if any Government deprives a people of its rights and oppresses them, the people have the further right to alter or to abolish it.24 As envisioned by Nehru, Ambedkar, Gandhi, Patel and others, the essence of the fundamental rights constitutes a part of what we refer to as the ‘basic structure’ of the Indian Constitution, which for long was believed to be a feature that could not be subjected to amendments (Mody 2013). This view found reflection in the Golaknath case in which the Supreme Court of India in 1967 decided that the Parliament could not alter or amend any fundamental right. Although the Supreme Court in the Kesavanand Bharati vs State of Kerala case in 1973 allowed the Parliament to amend any part of the Constitution, including the fundamental rights, as empowered under Article 368, the judgement held that it could only be done so long as it did not alter or amend ‘the basic structure or essential features of the Constitution’. This was the inherent and implied limitation on the amending power of Parliament (Datar 2013). Significantly, the judiciary reserved the right to interpret what constitutes the basic structures of the Constitution.

Introduction 15 Rights were envisaged as instruments of freedom, equality and justice across all diversities and differences in the hands of Indian citizens. However, while emphasizing individuals as right-bearers, as mentioned earlier, it also makes provision for group-differentiated rights in terms of specific provisions for disadvantaged groups as well as for freedom of religion. Much water has flowed under the bridge since then. Today in India, as in most parts of the world, the story of rights presents many contradictions and contestations. While at one stage rights are being undermined, on the other side, new claims have been made and asserted. The theoretical conundrum is that the rights discourse in India today is an amalgamation of the philosophical foundations affirmed by the makers of the Indian constitution, numerous struggles and movements, political and social, that consistently pushed the frontiers of the discourse, the shift towards a neo-liberal economic agenda, the rise of populist leadership and constant ‘othering’ of the marginalized groups through recourse in history, religion, development and narrow nationalism. The discourse of rights in India is a discourse of new forms of inequalities, new dimensions of everyday violence against the marginalized, infringement of basic rights and freedoms, marginalization of the vulnerable and oppressed, as well as the assertion of new voices, emergence of new forms of protests, the reclaiming of ‘lost’ spaces, the dynamics of new struggles and visible changes in law and policymaking as a result of these assertion of rights. What also constitutes an integral part of the discourse is a gradual paradigm shift in the theoretical frameworks, the conceptualizations, the issues and the questions being raised that have enriched and deepened the debates and dilemmas on rights in India. All the papers in this collection refer to the debates and dilemmas on rights, more specifically in the Indian context. They raise critical questions about the approaches to study rights within political theory as well as practice. They engage with the interconnections, contradictions and challenges between rights, equality and justice. While individuals may ask for autonomous rights, issues like caste, gender, disability can reduce their ability to participate as equal right holders. Certain rights continue to be beyond the domain of political theory, statehood and citizenship. Rituals of subjugation and exploitation can lead to lack of access to rights. The distinctiveness of the chapters of this volume is that they engage with complexity and the nuances of these dilemmas. These chapters evaluate the claims for rights by engaging with a critical perception of the core theoretical issues at stake. The book is broadly divided into three sections. The first section deals with theorizing rights engaging with the ideas of human rights, laws, gender and environment. There is a unifying vision in this section which provides an overarching framework for theoretical imagining and re-imaginings on rights discourse in India.

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The second section engages with gender, religion, disability and their overlapping concerns and issues in order to understand the debates and dilemmas which are of pressing concerns today. They have profound implications for democratic functioning of the state and for understanding citizenship rights. This would necessitate configuration and reconfiguration of the state, market, civil society, family and other structures and institutions. The third section takes it forward to look at the deepening of intersectionality and the emergence of conflicting and competing rights in contemporary × This includes emerging concerns of caste, sexuality, forest rights and child rights. These new explorations provide ground for the very need to re-emphasize rights in order to contribute to the creation of an egalitarian society.

Theorizing rights: significance of human rights, laws, gender and environment The first section presents a vast canvas of the theoretical terrain of rights in political theory. Through this section, we attempt to unleash the theoretical mapping of rights discourse and the debates and dilemmas emerging from it within historical and contemporary perspectives. Along with this, each chapter makes an attempt to do a theoretical reimagining of a specific issue through the lens of the rights perspective. More specifically, the section strives to bring out the relevance and intricacies of using the theoretical lens of the human rights, feminist, legal and environmental perspectives to understanding the rights discourse. Concerns around intersectionality and diversity have been probed into in order to contextualize the issues and their implications in democratic politics. As the chapters discuss the dilemmas and debates emerging from these issues on rights, they also suggest methodological tools to analyse, critique and strive to resolve the contradictions and challenges. In the opening essay Mohanty gives an analytical account of how new dimensions of social inequalities which get manifested in the interface of class, caste, gender and ethnicity are responsible for shaping up the new discourses on rights during the last few decades. The three trends of globalization, authoritarianism and communalism are powerful currents affecting the entire gamut of social issues in India, throwing up different linkages of rights that concern class, gender, caste and ethnicity. Tracing the old and new dimensions of domination and resistance being expressed through people’s rights in contemporary times, Mohanty argues for a ‘creative society’ where the struggle and assertion for one form of rights cannot be delinked from the struggle and assertion for other forms of social rights. It is in this ‘creative society’ that the oppressed classes, castes and women

Introduction 17 can seek fulfilment of their rights and become more aware of the challenges that exist in the realization of these rights. Ashok Acharya’s chapter explores all the issues raised in the earlier chapter but keeps itself focussed on the issue of respecting difference and recognizing and institutionalizing minority rights. He emphasizes the Constitutional Assembly debates in India that led to the framing of the constitution. He lays down the fierce debates of the assembly, which reflect the dilemmas between individual rights and group rights. Acharya argues that the constitution is both a deviation from and derivation of the colonial model. According to him, the constitution, by providing special representation rights to the disadvantaged groups, has pre-empted the idea of multiculturalism. While he offers the historical study of the emergence of rights within the Indian context, Vidhu Verma’s chapter, which follows, takes it beyond and locates the debate in the global context, especially in terms of a feminist trajectory. Verma goes beyond the general theoretical framework of rights and focuses on the dilemmas of rights within the feminist discourse. Beginning with an observation that there has been a recent proliferation of rights, she gives an insight into the status of rights debated within feminist theories and more specifically within transnational feminism. By looking at the tenets of global feminism and transnational feminism, her chapter makes an attempt to move beyond the universal human rights–versus–cultural rights dichotomy to examine the limitations of the two as they move unevenly through the local, national and international arenas. Finally, she makes an attempt to critique the ‘blanket’ category of women used by the Indian state in its formulation of rights that fail to locate them within the intricate web of intersectionality and multiple identities that affects the status of women and determines their accessibility to rights. She argues that the understanding of discrimination against women evolves with insights, perspectives and empirical information on how they are subordinated by different legal, social and religious traditions, and any idea of rights should incorporate this understanding. This would eventually mean reconstruction of the notions of dignity, autonomy, bodily integrity and sexuality of women that are embedded in religious and cultural norms. According to Verma, the ‘justice gap’ in the rights discourse in feminist politics could be addressed through the reform of legal institutions within the state, being informed by the capabilities perspective and strengthened by transnational feminism in the process. Engaging with the questions raised in Verma’s chapter, Anita Tagore takes Verma’s submissions forward as she interrogates rights and laws within the highly contested ‘private domain’ of sexual and bodily autonomy of women. Her starting point is that the legal discourse in India has been able

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to create space for gender justice to address the questions of discrimination and inequality against women. Therefore, law provides that discursive space where rights and identities are negotiated and institutionalized through constant interaction with the state. However, the emancipatory potential of law as an instrument of justice for the marginalized that included women is under constant threat and challenge owing to its resorting to patriarchal notions of family, marriage and other social institutions and practices. She argues that equal constitutional guarantees to both men and women as citizens in the form of rights fall apart when it comes to actual judicial decision making and adjudication. She illustrates this by discussing examples of legal interpretation of women’s rights as equal citizens when it comes to violence in the social institutions of family and marriage. Tagore strives to bring out an important dilemma of the rights discourse through this critical reading, which is the gap between substantive foundations of rights embedded in the principles of justice, equality and freedom and the procedural aspects of making rights accessible to women in real courtrooms. Going beyond the gender perspectives to rights used by Vidhu Verma and Anita Tagore, Brooke Ackerly brings in the dimension of the environmental perspective. While elaborating on the normative legitimacy of human rights that is distinctive in several respects, she muses on how to develop an account of human rights that could be seen as legitimate by all who have been working to make marginalized people and marginalizing structures visible, including feminists, colonized, ethnically marginalized and indigenous people. She further pushes her point to focus on the application of human rights theory of global justice to the problem of climate change and climate justice. Climate change poses a severe threat to our planet, to human rights and to global justice. But it is hard to speak generally about the global justice implications of climate change, because its effects, particularly its human rights effects, vary by context. In some places there will be more droughts. In some places there will be more floods. In some places there will be more severe storms or storms coming at times when agriculture could be damaged. Some people will be exposed to more severe heat and for longer days, making their energy needs greater. India is expected to experience many of these climate change threats. Ackerly poses a question to answer it herself. ‘Can a theory of human rights guide a theory and practice of global justice and responsibility relevant to the varied context of climate change injustice?’ The chapter applies a human rights theory of global justice to the problem of climate change and offers five guidelines for approaching climate change through mitigation and adaptation policies, programmes and philanthropy and government aid.

Introduction 19 Ackerly’s chapter links tensions within rights discourse and environmental concerns in very significant ways, as they both impact each other and interconnect issues of displacement, loss livelihoods, lack of food and extreme destitution and poverty, which are all visible violations of rights of citizens. In the same vein as Brooke Ackerly, Mitu Sengupta explores the merits of adopting a human rights–based approach to developing policy responses to corruption. She suggests that this brings ethical questions to the forefront of consideration while establishing policy priorities and ensures that the wellbeing of the least privileged in society is taken as the starting point of all policy. She begins with a convincing critique of utilitarian foundations of the rights discourse that fails to distinguish or prioritize the ‘right’ over ‘good’. Making a claim that it is most often the poor and the marginalized sections of society that bear the weight of corruption, she analyses that ironically it is the same poor and marginalized that suffer from the consequences of the ‘cure’ of corruption that comes in the form of utilitarian-based short-term reforms and policies. Sengupta raises a pertinent question when she asks, ‘Why must we accept that some groups of people will always, or nearly always, pay a heavier price for so-called “necessary change”?’ This question, according to her, requires some serious consideration over ethical reasoning behind policy proposals and a scrutiny of these proposals in terms of their impact on the marginalized and deprived sections. The concept of human rights, as she suggests, provides a firm anchor for raising ethical concerns about policy and for creating clear, comprehensive and practicable guidelines for fighting corruption fairly and sustainably. Mitu Sengupta articulates that a human rights approach to anti-corruption reform will shift its focus from a negative objective of ‘framing and catching’ individuals to a positive goal of the realization of human rights, especially those rights whose fulfilment is obstructed by corruption. She provides an elaborate critique of some of the recent ‘populist’ measures by the state under its ‘Sabka Saath-Sabka Vikas’ development model like direct cash transfer in place of PDS system, the Aadhaar project and the most recent ‘demonetization’ decision. The chapter argues that the Indian government’s approach to fighting corruption, exemplified by its recent experiment with ‘demonetization’ is an example of how anti-corruption reform can adversely impact the most marginalized and deprived sections of society, which are also the ‘worst causalities of corruption’. A state cannot overlook or justify the adverse impact of its own policies and decisions that violate the basic rights of its own citizens as ‘collateral damage’ done in the name of development and innovation. Mitu questions the approach by the state by asking about the points of negotiation between ensuring basic rights of citizens and development goals of the state.

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The rich and variegated theoretical debates in this section provide a framework for exploring the specific nuances included in the next two sections.

Gender, religion, family, work, caste and community: issues and contestations One of the most difficult dilemmas in the discourse of rights has been the claims of an individual as a citizen and the claims of an individual as part of a social group, which we term ‘group’ rights (Kymlicka 2002). Rights are linked to redistributive policies, group identities, duties and obligations, group memberships on the basis of multiple social affiliations, basic freedoms and legal entitlements. All these factors are constantly interacting and intersecting with each other on the theoretical map of the discourse. What is also striking here is that while vertical identities get defined in terms of caste, religion, class, ethnicity, region or language, gender as a social category cuts across all the other identities. Introducing gender considerations has been central to the theoretical mapping of the rights discourse. In this section, the addition of gender is of significance because it is used as a lens to understand family, the state and the market by keeping in mind the complexity of the issue and intersectionality of class, caste, religion and disability. All the chapters in this section make an attempt to comprehend the debates and dilemmas of rights amidst these numerous intersections and interjections of gender with other identities and with each other. In the first chapter in this section, Bijayalaxmi Nanda locates the dilemma of the rights discourse by striving to analyse the practice of sex-selective abortion in India. An attempt is made to study the evolution of reproductive rights and the complex and conflictual understanding of the same when it comes to sex-selective abortion. In this chapter, Nanda points out that one of the worst forms of gender discrimination in India identified by the women’s movement is the gender discriminatory practice of sex-selective abortion. The dilemmas of countering this form of gender discrimination arise because of its overlap with the right to abortion for women. The competing discourses emerging from the global, state and civil society narratives are discussed in order to bring to light the contradictions and contestations that exist therein in relationship to the reproductive rights discourse. In the final analysis, the syncretic feminist perspective, combining principles from various feminist positions, is provided as an approach to resolve the debates and dilemmas regarding reproductive rights and countering sex-selective abortion as gender discrimination in India today. In the second chapter Nupur Ray delves into the contested terrain of the rights discourse and gender equality in the context of bodily rights, especially sexual and reproductive rights of women in prostitution. More

Introduction 21 specifically, she looks at Ronald Dworkin’s ‘rights as trumps’ as a theoretical framework to critically assess the rights discourse in the Indian context. Ray argues that the central issue in addressing women’s social subordination is the reality that the self is actualized through projection of a corporeal schema in the form of her ‘body’ onto the world which ultimately shapes and constructs her own ideas of desires, sexuality and motherhood. The ways in which women’s bodies are constituted in relation to men thereby define their notion of ‘ownership’ of their own ‘bodies’, which to her understanding is at the centre of body–gender politics. Thus, the chapter aims to critically engage with the concept of self-ownership that defines the relationship between a woman and her body in the specific context of women in prostitution. It is also highly imperative to arrive at a robust idea of ‘informed agency’ for women especially in matters of reproductive rights amidst different cultural and social contexts. The third chapter by Mary E. John provides detailed discussion on debates and dilemmas around women’s access to political rights, ideas of representation and rights based on minority status and caste. She offers a rich historical account of the issue of reservations for women in political bodies in the twentieth century of modern India. This chapter demonstrates that the effective history of thinking about political representation in the form of reservations for women is as old as the women’s movement itself. Through a detailed discussion of the trajectory of demand for separate electorate in pre-independence political history, Mary E. John presents a persuasive argument that women’s organizational opposition to separate electorates during the phase of making of the Indian constitution eventually led to personal law reform being defined in religious terms, because of which women came to be identified as belonging to their respective communities. She elaborates that in 1932, before personal law reforms were initiated, feminists were cautious that any demand around reforming the status of women within a specific religious community could possibly diffuse any collective action or their position as a single unified category. This over-caution led to what she argues as ‘a gap between the desire for collective solidarities capable of including different communities within a universally shared social agenda and a politics of abstract citizenship that, in its very claim to be neutral and united, ends up being Hindu majoritarian’. By drawing our attention to this discourse, John tries to raise a larger issue and concern of intra-group inequalities and discrimination that often leads to inaccessibility of rights to ‘groups within groups’ leading to their social, economic, cultural and political marginalization. As much as one could argue for women’s reservation in the parliament, the challenge for feminists is to make this space as inclusive as possible and make sure that the

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marginalized voices of Dalit women, women from Other Backward Castes (OBCs) and religions are not left unheard in the process. Through this discussion on dilemmas around how the identity of women intersects with their other social identities, John argues for a deep political understanding about the inequalities of caste and community and how they intersect with gender in order to advocate for reservation for women in Parliament. Flavia Agnes’s chapter unfolds the main concerns that emerge from intersections between women’s citizenship rights, rights of Muslim community and the notion of personal laws. Recent debates around ‘triple talaq’ and Muslim personal law have provoked questions about who are the custodians of religion and of religious laws in society and the necessity to protect basic rights of Muslim women as citizens of the state. However, Agnes raises a pertinent point of how these debates and ideas are projected in the public domain, creating misinformed notions around Muslim personal laws. When and how did the issue of lack of rights of Muslim women come to the fore? Why are Muslim women suddenly rushing to the Supreme Court to challenge the triple talaq rather than approaching the local courts for securing their economic rights? According to Agnes, in order to address these critical questions, one would have to read the recent developments against the populist grain. The chapter explicitly brings out that dichotomy between flawed ‘perceptions’ around ‘triple talaq’ with an intention to criticize and persecute another minority and at the same time lack of efforts and activism to make Muslim women aware of their legal rights. In the final chapter in this section that looks at intersections between disability and rights Anita Ghai presents a research based argument on the issues of care and dependency. She locates it within the broader theoretical framework of disability rights and through the voices of disabled women and women caregivers. Ghai’s chapter attempts to bring out interdependency between the person with disability and her caregiver in the background of policy formulation in rights discourse. Ghai argues that in this increasingly mutually interdependent world, the dependence of persons with disabilities is only one kind of dependence and therefore should be free of stigma, shame or humiliation. However, owing to the socio-cultural milieu of the Indian society, most persons with disability, especially girls, get taken care of by their mothers. The caregiver is also in a vulnerable position, as she operates within the patriarchal structures and is dependent on others for her subsistence. The dilemma lies in the fact that the rights and entitlements of the caregiver, often the mother in the Indian case, get neglected with the focus on the person with disability. In this context, Ghai makes three submissions in her chapter. First,

Introduction 23 the idea of ‘care’ should assume a more central space to incorporate the experiences of care being received and given. Second, the services provided by the caregiver should be recognized and supported by the state in terms of providing access to resources to the caregiver. Third, the distinct set of rights for caregivers of disabled persons should get incorporated within the framework of rights. This chapter strives to highlight the absence of a theoretical perspective as well as a policy initiative that recognizes ‘care’ and caregivers as bearers of a certain set of rights and entitlements that could enable them in their commitments. She advocates for this space to be created within the rights discourse. While in this section, gender has been central to the unfolding of the debates and dilemmas around caste, community, body, work and family, the next section takes the discussion forward by engaging with the new challenges and contestations around conflicting rights.

The ‘myth’ of conflicting rights: a critique of the Indian state An issue that has continued to be a source of debate and dilemma in the rights discourse has been the question of relative weightage of rights. While the liberals have always pushed forward the agenda of civil and political rights as ‘fundamental’, the Marxists/socialists have claimed that it is the socio-economic rights that lay the foundations of rights discourse in any society, communitarians have advanced the idea of individuals embedded in their community and the cultural relativists draw our attention to the importance of cultural identities. Certain rights get prioritized over others, and certain rights are dismissed in the name of duties and obligations or for a larger public good. The relative weight of the various rights and unequal weight which is arbitrarily decided or hierarchized lead to violation of rights. The internal complexity of each needs to be engaged with, and it is important to articulate, enrich and bring about sophisticated understanding of the rights discourse. One response to this could be to acknowledge that the idea of rights competing with each other or a certain hierarchy of rights is a myth. As Sen has argued, all dimensions within the discourse on civil, political, legal, economic or cultural rights/freedoms are interconnected and reinforce each other to establish rights as significant tools in the hands of citizens as well as limits the boundaries of the state intervention. The state becomes central to this engagement, and it sparks the much-needed debate about the limitations of the state discourse and the emerging need of the state to play a proactive role in realization of the rights for its citizens which is the cornerstone of its inherent democratic functioning.

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The first chapter in this section by Harsh Mander delves into the consequences of rights denials to a range of most vulnerable children – such as children living with hunger, street children, other children without adult protection, child workers, children of very stigmatized parentage, children of seasonal-distress migrants, abused children and children in conflict regions. It reflects on their invisibility in most public policy, and their profound neglect and denials as a consequence. As millions of children in India continue to be deprived of access to basic freedoms, there are debates and dilemmas around what it entails to extend rights to children. Further, the entire discourse on the rights of children has been limited to ‘prohibition of child labour’ (that is severely violated in several parts of the country) and right to education without any consideration to socio-economic status and a blind presumption that each child will automatically reach school. This discourse figures very low in the hierarchy of rights on the psyche of the Indian state in its policy formulations and planning. In India, 33 million children in the age group of 0 to 18 years are working. Most of these children are engaged in the unorganized and unregulated sector, making demand and availability of cheap labour an easy proposition. On the other hand, high levels of poverty and unemployment, coupled with lack of an adequate social security net, compel parents to allow children to work in hazardous occupations. The chapter looks at some of the debates concerning right to health, education, food and nutrition against sexual abuse of children, especially in the legal framework and in the wake of recent legislation. As more child rights violations plague our society, we need to engage with the legal and constitutional mandates in order to ensure that all these rights percolate to all children in India. Public policy and law for children must begin therefore with the starting point of the ‘last child first’, as well as robust social and cultural engagement with normative frameworks of caste, class and gender that justify the continuance of unequal childhoods. Mander’s chapter presents a nuanced critique of the lack of political will on the part of the Indian state towards its commitment to ensuring equal, dignified and abuse-free childhood for all children. In a similar vein, Krishna Menon’s chapter looks into the intersections between cultural rights, socio-economic rights and caste when it comes to access to resources. Amartya Sen states, ‘Cultural Liberty is about allowing people the freedom to choose their own identities – and to lead the lives they value – without being excluded from other choices important to them . . . cultural liberty is central to the capability of people to live as they would like’ (HDR 2004: 20). Menon’s chapter is an illustration of the discrimination existing in the world of ‘classical music’ in south India. She raises a pertinent question,

Introduction 25 which is, do all sections of society have the right to access, participate in and perform this music? The chapter examines how the social hierarchy of caste limited the access of the non-brahmin Hindu community to cherish a common cultural heritage of classical Karnatik music in South India. Menon argues to establish that the access of citizens to socio-economic rights across all identities is significant in the realization of cultural rights and liberties. Engaging with vulnerable groups, Harsh Mander has looked at the concerns of rights of children within the marginalized groups, and Krishna Menon has examined the vulnerability of Dalits when it comes to exercising cultural liberties. Taking this debate further, Skylab Sahu explores the marginalization of the transgender community. She begins by mentioning the Yogyakarta resolution in 2006 that intended to enforce the international human rights law to address the issues of sexual orientation, gender identity and abuses experienced by lesbians, gay men, bisexual and transgender people across the countries. The principle states that ‘everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination’. However, the Indian state, as the chapter argues, has failed to incorporate transgenders into the mainstream discourse in terms of ensuring them a life of dignity along with access to civil, political and social rights like any other citizen of India. In India, transgender people have existed in every culture, race and class. Despite that, in this society which is dominated by the gender binary norms, the transgenders have not been treated equally. They often have been subject to ridicule, stigma and discrimination. Thus, only their legal recognition as a group may perhaps be a positive start for a long road ahead. On the other hand, some laws still prevail in the country that prohibit the right to equality of the transgenders. Most importantly, the Indian state has not recognized the right to sexuality to the transgender, which disallows them to lead a normal life. This chapter, while adopting a rights framework, analyses the situation of transgenders in the Indian state. The chapter also highlights some of the contradictions related to the verdict of the Supreme Court of India to Section 377 IPC and recognition of the third gender. It explains the process, through which the state contributes towards inclusion and exclusion pertaining to life, work and sexuality of the transgenders in India. The chapter highlights the inability of the Indian state to grasp that not being able to live with dignity is itself a severe violation of their fundamental rights as citizens, and it has also attributed to their social, economic backwardness in Indian society. In the fifth chapter Ajay Dandekar makes an attempt to explore contested spaces, democratic rights and state interventions in the Indian context. In his

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opinion the Indian state is perceived as the primary institution for delivering democracy. While the state’s democratic project is to distribute opportunities and resources to marginalized communities, the marginalized groups remain sceptical of the state. However, while remaining critical of it, they continue to view the state as an instrument to provide them basic rights, fulfil their expectations and eliminate their deprivations. This chapter takes into account the condition of the people in the context of rights and entitlements ceded to the state as the state strives to assert itself in commanding extractive and centralized mobilization of resources, paving way for a longterm and terminal decay of the people’s right over their resources in the context of the Schedule V areas. It therefore argues that the policy lapse is the result of the uncertainty regarding the larger framework of governance of Panchayats Extension to Scheduled Areas Act (PESA) in the Schedule V areas that has been adopted, as well as a steady decline of the engagement of the state with the ‘Adivasi’ and the terrain they occupy. He discusses the context in which we need to understand the dynamics of deficit and terrains first before the discussion moves into the context of PESA and its understanding. The last part of the chapter addresses the nature and the consequences of the governance deficit and the resultant implications. The contested spaces and the competing inequalities provide an understanding of the structural discrimination and the overlapping demand for rights that exist and define the continued exclusion of certain social groups. In the final chapter Simple Mohanty seeks to deconstruct the Kashmir imbroglio from the prism of the rights discourse in the Valley, counterpoising it with the state-security-nationalistic discourse predominant in Jammu. Seen thus, the unrest in Kashmir stems in the short run from the torture, militarization, illegal detentions, enforced disappearances and humiliation that infringe upon the basic rights of people there on a daily basis and in the long run from a denial of the promised right to self-determination. It also looks at the dilemmas this throws up in terms of the ideological chasm between Jammu and Kashmir and reconciliation with the seemingly competing and conflicting rights of all other stakeholders including Kashmiri Pandits, Ladakhi and Buddhists. The intractability of the Kashmir conundrum continues despite a dip in militancy levels since the early 2000s. While in part this is because India and Pakistan are unable to break new ground on Kashmir, a key factor is that alienation still runs deep among the masses in Kashmir despite duly elected governments being in place. It does not help when their anxieties are further stoked by religio-political mobilizations such as the Amarnath land agitation in Jammu in 2008, when Hindutva forces enforced a blockade of essential supplies to the Kashmir Valley. A spate of protests have since visited the Valley with stone-pelters confronting security persons, which cannot but be

Introduction 27 framed through a rights discourse. Though each street protest, whether in 2008, 2009, 2010 or 2016, has a different trigger, the underlying restlessness and alienation are constant. These protests are cyclical in the sense that they are often triggered by human rights abuses in the first place, and they are quelled with the use of disproportionate force by the state, leading to further human rights violations. The most recent mass mobilization following the killing of 22-year-old militant commander Burhan Wani, which has seen hundreds being blinded by pellet guns and thousands injured and incarcerated, has brought the human rights question to the forefront; ironically among those detained under the draconian Public Safety Act are human rights activists themselves. Simple Mohanty’s chapter brings out the complexities of the dilemmas in rights discourse that get more complex and at times seemingly non-negotiable as we discuss Kashmir. The concluding chapter by Bijayalaxmi Nanda and Nupur Ray provides the essence of arguments made by the authors in their respective chapters and summarizes the specific contexts and conclusions that emerged from them. It strives to develop an understanding of what is at stake here and makes a preliminary judgement on what could be a more compelling way of dealing with the theory of rights. The feminist lens has been considered as a viable tool to analyse larger issues of discrimination and intersectionality going beyond women. The ideas of Indian political philosophers have also been central to examining this discourse. The perspective of reflective autonomy is tentatively proposed, which emphasizes and justifies the need for going beyond moral sentiments to individual concern for others based on a realistic, thoroughgoing and sensitive basis for expansion of rights. The viability of taking the rights path and its continuing centrality to the ethos of the living, thriving web of democracy is brought to the fore. It is only through negotiating and deliberating on the debates and dilemmas that the terrain of the rights discourse can be fully understood in the context of contemporary India.

Notes 1 The description of the city in the night by Haruki Murakami in his novel After Dark. Vintage Books, London, 2008, is used here as an analogy to describe the rights discourse. 2 The Fundamental Rights have been classified in Part III of the Indian Constitution under the following main heads: (1) Right to Equality: (2) Right to Freedom: (3) Right to freedom of Religion: (4) Rights against Exploitation: (5) Cultural and Educational Rights: (6) Right to Constitutional remedies: (7) Right to Education. 3 For details on Aadhaar see https://www.uidai.gov.in/ (accessed on 7 July 2017).

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4 Incidents of public lynching seemed to have gained immense traction since the year 2015, days after a blanket ban on beef in Maharashtra. In most cases, ‘cow vigilantism’ has become a regular excuse, using which ‘secular’ mobs have attacked individuals, dominantly from the minority Muslim and Dalit communities. A timeline of recent mob lynching incidents in the name of cow vigilantism can be seen on www.timesnow.tv/india/article/publiclynchings-that-shook-india-a-timeline/64250 (accessed on 8 July 2017). 5 The immediate reason for the campaign was the murder of a 15-year-old Muslim boy named Junaid. Junaid was travelling with his brothers in a train when they were attacked by fellow passengers. An argument over seats got ugly, when the men allegedly mocked the boys, tugged at their beards and accused them of being beef-eaters before they stabbed Junaid and threw them out of the train. Junaid bled to death in his brother’s lap. 6 Rohith Vemula, a student activist of the Ambedkar Student Organization, was a PhD student at the University of Hyderabad. In July 2015, the university reportedly stopped paying his fellowship after he was found raising issues under ASA as part of the institute’s disciplinary inquiry. He was later suspended and barred from the hostel. After the confirmation of the suspension in January 2016, Vemula committed suicide. His suicide sparked protests and outrage across India and gained widespread media attention as an alleged case of discrimination against Dalits. 7 For further details refer to HuffPost Staff. 2017. ‘These Were the 12 Major Human Rights Violations in India in 2015, Finds Amnesty Report’, HuffPost , February 22, www.huffingtonpost.in/2017/02/22/these-werethe-12-major-human-rights-violations-in-india-in-2015_a_21719034/ (accessed on 10 July 2017). 8 An overview of the well-known Nirbhaya case 2012 can be found here http://indianexpress.com/article/india/nirbhaya-gangrape-case-2012-alook-at-what-all-has-happened-over-the-years-4641418/ (accessed on 3 July 2017). 9 The ban on entry of women to religious institutions on the basis of puritypollution was challenged. For further discussion see https://thewire in/ 77640/sabrimala-temple-case-constitutional-watershed/ (accessed on 28 June 2017). 10 For an elaborate discussion on the discriminatory law against transgender communities see www.thehindu.com/todays-paper/tp-opinion/To-be-equalbefore-the-law/article14479532 (accessed on 30 June 2017. 11 Fir details about Irom Shamila’s case refer to www.theguardian.com/ world/2016/aug/09/indian-activist-irom-chanu-sharmila-ends-16-yearhunger-strike-lick-honey (accessed on 30 June 2017). 12 The group affiliated to RSS (Rashtriya Swayaamsevak Sangh) was founded in 2002. It was renamed Muslim Rashtriya Manch in 2005. For further details refer to www.newslaundry.com/2016/03/02/meet-the-nationalistmuslims-of-rss-affiliate-muslim-rashtriya-manch (accessed on 5 May 2017). 13 ‘Surgical strikes is a military attack which results in or is claimed to have resulted in only damage to the intended legitimate military target, and no or minimal collateral damage’. For further reference see http://economictimes. indiatimes.com/news/defence/army-conducted-surgical-strikes-on-terrorlaunch-pads-on-loc-significant-casualties-caused-dgmo/articleshow/ 54579855.cms (accessed on 7 June 2017).

Introduction 29 14 A detailed account can be found on www.thehindu.com/opinion/lead/anabomination-called-afspa/article4404804.ece (accessed on 6 June 2017). 15 As Lok Sabha Elections 2014 wound down to a historic close, the BJP-led NDA claimed a landslide victory, making huge gains across the country. As results for all 543 Lok Sabha seats were announced, the NDA looked set to win 336 seats, not only far ahead of the halfway mark but also relishing a victory whose scale they had not themselves anticipated. For, incredibly, the BJP crossed the 272 mark comfortably on its own, without allies, winning 282 seats, a gain of 166. 16 For a detailed version of Nozick and Hayek’s theories refer to Robert Nozick. 1974. Anarchy, State and Utopia. New York, USA: Basic Books and Friedrich Hayek. 1944. Road to Serfdom Routledge Classics. Oxon: Routledge respectively. 17 For further analysis and reading of Michael Walzer’s Complex Equality, refer to Michael Walzer. 1983. Spheres of Justice: A Defense of Pluralism and Equality. New York, USA: Basic Books. 18 For an elaborate view of Richard Rorty refer to José-Manuel Barreto. 2011. ‘Rorty and Human Rights: Contingency, Emotions and How to defend Human Rights Telling Stories’, Ultrecht Law Review, 7(2). 19 As per Census 2011, the child sex ratio (CSR) of India is 919. The Sample Registration System (SRS) has reported the latest maternal mortality ratio (MMR) as 167 and the infant mortality rate (IMR) as 37 in 2015. 20 Human Development Report 2016, UNDP, http://hdr.undp.org/sites/ default/files/2016_human_development_report.pdf (accessed on 7 May 2017). 21 For a detailed account of struggles refer to Jo Woodman. 2010. ‘India: Tribal Mining Protests Continue’, The Guardian, February 24, www. theguardian.com/world/2010/feb/24/india-vedantaresources (accessed on 4 July 2017). 22 For a detailed account see Ruchira Gupta. 2016. ‘A law that allows child labour’, The Hindu, August 10, www.thehindu.com/opinion/columns/Alaw-that-allows-child-labour/article14560563.ece (accessed on 1 July 2017). 23 Indian has second-highest number of child marriages. For more information please see www.thehindu.com/news/international/south-asia/Indiahas-second-highest-number-of-child-marriages-Unicef/article11131187. ece (accessed on 3 May 2017). 24 Extracts from the Independence Day Resolution passed by the Indian National Congress in 1930, www.nationalarchives.gov.uk/education/ empire/transcript/g3cs3s2t.htm (accessed on 13 May 2017).

Bibliography Ackerman, Bruce. 1980. Social Justice in the Liberal State. New Haven: Yale University Press. Commins, Saxe and Robert N. Linscott (eds.). 1947. Man and Man: The Social Philosophers. New York: Random House. Datar, Arvind P. 2013. ‘The Case That Saved Indian Democracy’, The Hindu, April 24, www.thehindu.com/opinion/op-ed/the-case-that-saved-indiandemocracy/article4647800.ece (accessed on 17 June 2017).

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Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge, MA: Harvard University Press. Ebenstein, William (ed.). 1947. Man and the State: Modern Political Ideas. New York. Rinehart. Erin, Kelly (ed.). 2001. Justice as Fairness. Cambridge, MA: The Belknap Press of Harvard University Press. Government of India (GOI). 2006. ‘Social, Economic and Educational Status of the Muslim Community in India: A Report’, Prime Minister’s High Level Committee, Cabinet Secretariat, http://mhrd.gov.in/sites/upload_files/ mhrd/files/sachar_comm.pdf (accessed on 24 May 2017). Government of India (GOI). 2008. ‘Report of the Expert Group to Propose “Diversity Index” and to Work Out the MoDalities for Implementation’, Ministry of Minority Affairs, http://minorityaffairs.gov.in/sites/default/ files/di_expgrp_1.pdf (accessed on 23 May 2017). Hasan, Zoya. 2009. ‘Muslim Deprivation and the Debate on Equality’, Seminar, 602, October. Human Development Report (HDR). 2004. UNDP, www.unic.un.org.pl/ hdr/hdr2004/hdr04_complete.pdf (accessed on 22 May 2017). Jaggar, Alison and Iris Marion Young. 1998. A Companion to Feminist Philosophy. Malden, MA: Blackwell Publishers. Kymlicka, Will. 2002. Contemporary Political Philosophy: An Introduction. Oxford, UK: Oxford University Press. MacKinnon, Catherine. 1987. Feminism Unmodified: Discourses on Rights and Laws. Cambridge, MA: Harvard University Press. Mody, Zia. 2013. Ten Judgements That Changed India. New Delhi: Penguin Books India. Mukherjee, Mridula. 2016. ‘Civil Liberties and Indian Nationalism’, in Rohit Azad and Janaki Nair et al. (eds.), What the Nation Really Needs to Know: The JNU Nationalism Lectures. New Delhi: Harper Collins. Nozick, Robert. 1974. Anarchy, State and Utopia. New York, USA: Basic Books. Okin, Susan. 1989. Justice, Gender and the Family. New York, USA: Basic Books. Pateman, Carole. 1988. The Sexual Contract. Stanford, USA: Stanford University Press. Pitsoe, Victor and Moeketsi Letseka. 2013. ‘Foucault’s Discourse and Power: Implications for Instructionist Classroom Management’, Open Journal of Philosophy, 3(1): 23–28, February, https://file.scirp.org/pdf/OJPP_20130 20811451567.pdf (accessed on 25 May 2017). Vanaik, Achin and Rajeev Bhargava (eds.). 2010. Understanding Contemporary India: Critical Perspectives. New Delhi: Orient Blackswan. Waldron, Jeremy (ed.). 1987. Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man. London: Methuen & Co. Ltd. Young, I. 1998. ‘The Politics of Difference’, in G. Mahajan (ed.), Democracy, Difference and Social Justice. New Delhi: Oxford University Press.

Part I

Theorizing rights Diversity and difference

1

Dimensions of power and social transformation1 Manoranjan Mohanty

The context of the new century The last decade of the twentieth century and the early years of the new century saw momentous developments in India signalling intensification of political struggles involving class, caste, gender and ethnic identity. The launching of economic reforms in 1991 heralded a new stage of capitalist development in India. For global as well as domestic reasons the growing capitalist class acquired new privileges to lead the process of economic development. The challenges to the capitalist class continued to exist but in a much-reduced strength at this time. Several kinds of social conflicts got accentuated, many of which were manipulated by political parties for electoral purposes. The upsurge of the backward classes was sought to be neutralized by Hindu communal mobilization. Between the demolition of the Babri Mosque in December 1992 and the communal carnage in Gujarat in March 2002 a new pattern of communal mobilization engulfed the entire polity and society. All social issues got enmeshed with the Hindu nationalist challenge. While the economic reforms went ahead under all the regimes, the occurrence of violence in various parts of society including the militant challenges in Jammu & Kashmir provided the handle to the Indian state to become more and more authoritarian. Thus, in the early years of the twentieth century, three trends – globalization, authoritarianism and communalism – had become powerful currents affecting the entire gamut of social issues in India. The decision by the V. P. Singh government in August 1990 to implement the Mandal Commission report giving 27 percent reservation to the Backward Class in all India public services was a landmark in the history of independent India. It caused violent uproar in the country, leading to anti-Mandal agitations by the youth. But the decision was not only upheld by the Supreme Court with some safeguards but also became a part of the consensus among political parties, all of whom decided to enforce it and

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compete for electoral support of this complex caste spectrum. In the same way, the rising momentum of the women’s movement of the 1980s resulted in institutional changes in the 1990s. The 73rd Amendment to the India Constitution in 1993 which made the three-tier Panchayati Raj statutory, gave one-third reservation to women at all the three levels: gram panchayat, panchayat samiti and zila parishad. Soon afterwards one-third reservation for women was also ensure in urban bodies, i.e., corporations, municipalities and notified area councils under the 74th Amendment. Subsequently, the campaign for a similar reservation in the State Assembly and Parliament gathered momentum. The delay in the passage of this 81st Amendment Bill was due to the fact that some parties such as Rashtriya Janata Dal and Samajwadi Party wanted a component of this reservation earmarked for the Backward Class women. They argued that since women of backward classes or castes were not as educated as those from the upper castes the latter would corner these reserved seats. These parties also demanded reservation for women from religious minorities, especially the Muslims. In fact, such demands got serious echoes within the major parties such as the BIP and the Congress-I which had otherwise stood by the bill. After withstanding physical obstruction in the Lok Sabha the BJP-led government with open support from the Congress-I managed to introduce the Women’s Reservation Bill in December 1998. Its reference to the Parliamentary Standing for considering reservation within reservation was not ruled out. However, since the Constitution did not permit reservation for backward classes and minorities in legislatures it was not clear how such a reservation could be worked out only within the women’s quota. In cases of scheduled caste and scheduled tribe, there was an overall reservation in the legislative –15 percent for scheduled castes and 7.5 percent for scheduled tribes in Parliament and specific numbers of legislators proportionate to their population in the States. These developments brought into focus interconnections among various kinds of demands. Thus a caste–gender linkage was put on the agenda. This also had a class dimension since the bulk of the backward classes came from the landless poor peasants or middle peasant classes. The 1980s also witnessed the rise of autonomy movements in various parts of India demanding political safeguards for ethnic identity. A militant spurt in the Northeast and Jammu and Kashmir had a serious impact on the polity as a whole. The interface of class, caste, gender and ethnicity could be discerned clearly in India’s political life at the close of the twentieth century. Since the introduction of economic reforms the process of liberalization and globalization was unleashed, touching practically every aspect of Indian society. How different sections of society responded to this process is an interesting subject of investigation. Congress lost power in the 1996 Lok Sabha elections, and the United Front formed the government which too

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collapsed leading to a BJP-led front coming to power in the 1998 elections. The reform process got enmeshed in the condition of political instability. But the main course of economic reforms persisted despite the change of regimes, thus indicting the consolidation of the Indian capitalist class and its increasing integration with global capitalist economy. Thus even though the CPM and Left Front returned to power for the sixth consecutive time in West Bengal in 2002 and Left Front also ruled in Tripura and there was a sprinkling of socialists in the non-BJP parties, the political economy of India saw a vigorous assertion of a capitalist class in the 1990s (Ghosh 1989; Kabra 1995). The legislative initiatives of the BJP-led government of December 1998 provided good evidence of the ruling-class consensus on liberalization and globalization. When the BJP-led government introduced the Insurance Regulatory Authority Bill in Parliament the CongressI decided to support it. Their argument was that as the Congress-I had initiated the economic reforms in 1991, such a bill was also on the anvil of the Congress agenda. Resistance to this bill came from within the BJP from Sewadeshi Jagaran Manchi; BJP M.P.K.R. Malkani openly launched a public campaign against opening the insurance sector to foreign capital. He argued that this is one area in which public sector had performed well and together with the state, Indian private capital could also share the field profitably. This debate showed contradictions within Indian capitalist class. The big business houses of India wanted full integration with world capital, because they could then invest not only in India but in other third countries. A section of the capitalists, however, wanted a degree of protection for their operations in the Indian market. The major parties of India, however, more or less adopted the big-business agenda of opening the economy. This trend was also visible in yet another legislation introduced by the BJP-led government, namely the Patents Bill. This was also requirement under India’s negotiations with the World Trade Organization. Interestingly enough, not only did the Congress support the bill but the BJP government accepted the Congress amendment, which should have logically come from the Swadeshi Jagaran Manch of the BJIR. Only the left parties opposed both insurance and the patents bills. But in West Bengal the Left Front took all possible steps to make the investment environment hospitable to foreign capital. At the national level the CPM was critical of liberalization and globalization. But in the states where it was in power it created conditions for open-door capitalist development. Since the CPM controlled the bulk of trade union movement in these states such a perspective ensured industrial peace and made the region attractive to entrepreneurs. They, of course, argued that as in the case of China it was necessary to focus on economic development with the help of foreign capital which would be of benefit to all including the workers.

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The capitalist class in the new phase of Indian politics was not the typical anti-feudal secure, modern universalist social force that textbooks on European capitalism depict. It played politics of religion, caste and ethnicity from region to region to secure leverage in its operations. The Vishwa Hindu Parishad’s Ram Janamabhoomi movement received support from businessmen within India as well as Indian entrepreneurs and professionals living abroad. The local non-Brahmin movements and Backward Class political groupings were also patronized by industrialists who simultaneously patronized upper-caste organizations. The regional identity movements in various parts of India exposed a complex dimension of India’s capitalist development. The post-colonial state of India had merged after a tortuous anti-colonial struggle. Its boundaries were historically determined by cultural geography but were redrawn in 1947 through a blood-soaked partition enforced by a departing colonial power. After Independence the Indian capitalist class developed an all-India market with the aid of the state apparatus – police, army and bureaucracy – and carried on development administration as well as the maintenance of law and order within the boundaries of the Indian union. After the first 20 years of Independence contradictions in the development process began to manifest. There were peasant and tribal uprisings in different parts of India together with indications of disenchantment of workers, lower and middle classes and the poor in general. To respond to these tensions in the Indian political economy, Prime Minister Indira Gandhi began to devise some significant measures in the early 1970s. After a brief period of structural measures such as bank nationalization and preliminary land reforms she decided to resort to strong measures of maintaining power. Proclamation of Emergency, centralization of the polity and firm establishment of her personal leadership over the Congress Party were measures which transformed the democratic and federal character of the polity of the Nehru period into a centralized authoritarian system. The Janata Party rule of 1977–1979 and the rise of regional parties such as the Akali Dal in Punjab, Telugu Desam in Andhra Pradesh, Asom Gana Parishad in Assam and several others were the reactions to these. These developments intensified the contradictions in the societies and further weakened the capacity of the polity to cope with challenges of economic development on the one hand and demands of emerging social groups on the other. Hence in the 1980s, India experienced a democratic upsurge of Dalits, Adivasis, women, peasants and regional identity groups. The country experienced a series of economic crises during this period. It is in this situation that the Indian ruling classes decided to lean upon Western capital to cope with domestic crisis. In the meantime, there had been a revival of Western capital under Ronald Reagan in the United States and Margaret

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Thatcher in the UK, whereas crisis had intensified in the Third World countries and the socialist states leading to the collapse of the latter. Hence the Indian capitalist class at the end of the 1990s had to absorb the challenge of regional autonomy movements as well as the social movements such as movements of women, Dalits and Adivasis. It sought either to co-opt these movements on the promise that capital would fulfil all their demands or firmly put them down to develop an unrestricted free market. Interestingly enough, liberal democratic practice in India allows it to do both. Through the state it seeks to appropriate the ideology of the social movements. At the same time, it carries out its investment plans on the rules of productivity and profit, thus isolating the poor and the struggling forces from the market-centred development process. The struggling groups are called upon to take advantage of democratic politics – participation in civil society affairs – while capitalism promotes a free market and accumulates profit in an increasing world framework. Wherever both the process fails and movements confront the state, they invite authoritarian repression. Hence we see in India the emergence of an advanced capitalist sector co-existing with declining small capitalist and persisting feudal forces and with vast sections of society that remain entrenched in poverty, underdevelopment and social oppression. It is this context of power dynamics in India at the end of the twentieth century which has to be kept in view to discuss social dimensions of Indian politics. The emerging ideology of the Indian capitalist class was partly shaped by the social dynamics within the country and partly by the global ideology of capitalism governed by competitive profit motive, commitment to technology and reliance on advanced communication. The swift expansion of satellite television and computer networks, especially internet, evolved what appeared to be a composite world ideology of capitalism (Kurien 1996a, 1996b) However, this was seriously interrogated by groups who had acquired new consciousness about the causes of their deprivation and inequalities. Thus the class politics of capitalist globalization got seriously entangled with politics of caste, ethnic, gender and such other categories. So it is extremely important to see the interface of caste, class and gender in politics and understand the specific form that they take in the particular context.

Interface of class, caste and gender The complex interface of class, caste and gender is rooted in the way capitalism had grown in India. Originally, it was implanted by the British colonial regime as a dependent industrial sector to utilize local raw materials, such as jute in Bengal and cotton in Western India. Some units, such as TISCO, were set up by private entrepreneurs autonomously. In post-Independence

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India an attempt was made to develop agricultural production by improving irrigation and using modern technology with the hope that it would generate surplus to finance industrialization. This process, known as the Green Revolution, vastly expanded agricultural production generating surplus. But it did so only in some parts of India, mainly Punjab, Haryana and Western UP and pockets in other states. Vast stretches of Indian states remained underdeveloped and poverty stricken with persistence of semifeudal relations in agriculture.2 They include major parts of Bihar, Madhya Pradesh and Orissa. Thus, Indian capitalism in the 50 years since Independence grew on the foundations of pockets of Green Revolution and stretches of poverty. This is the foundation for the prevailing structures of deprivation and inequalities. Hence the bulk of the poor are not only landless, poor peasants and unorganized workers but also are from the scheduled castes, backward classes and scheduled tribes, and among the poor households women suffer more, and in general, women suffer more from poverty. Thus understanding of poverty is incomplete without seeing the interface of caste, class and gender. The most significant source of power is no doubt related to class or to the control over means of production such as land and industry. But social history had created patterns of relationship based on certain values and beliefs rooted in social conditions. Caste order and patriarchy embodied values and beliefs operating in the social structure. To treat them purely as ideologies which can be transformed with a change in consciousness is to ignore their social roots. The distinction among castes was also related to division of labour and its justification in ideological and cultural terms. The lower castes (shudras) engaged in manual labour on land, and the outcastes (atishudras) performed manual labour which was considered to be of a degrading kind. The upper castes performed activities – intellectual (Brahman), administrative (Kshatriya) and trade related (Vaishya); all three castes had control over means of production. Thus, caste and class were interconnected throughout history. The distinction between them, however, lay in the fact that the ideology of karma provided a justification for the caste order. It was said that those who committed sins in the previous birth were born into the lower castes. On the other hand, mode of production defined a class in terms of its control or lack of control over means of production. The actual social practice related the two. Gender too is related to class and caste. Division of labour between men and women evolved in the course of history. Along with power relations men performed crucial roles in the production system and acquired greater power in the society over centuries of evolution of class and caste society. The status of women as dependent on men, their performing mainly household work and producing children and nurturing them, was the outcome of a long period of feudal and capitalist social history. Religion

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and caste ideology reinforced the evolution of this trend. Hindu scriptures enormously contributed to this image of women. As contradictions became acute in society the gender question was reviewed. In the course of human struggle it became integrated with the struggle for social equality on all fronts – class, caste, ethnicity, race and gender. It was realized that the notion of women as weaker entities was essentially a cultural and ideological statement rather than an empirical fact. Women’s potentiality for work outside the household was recognized to be at par with men’s. Producing children was now valued as the most significant of all productive activities for keeping the human race going. Feudalism and capitalism were critiqued as systems that dehumanized women as bodies or objects for enjoyment (as in feudalism) or commodities for trade (as in capitalism). Religions were also reinterpreted innovatively to promote the idea of equality among men and women. Interestingly enough, the practice among Shudras and the socalled outcastes and tribals already had a relatively high degree of equality between men and women. Both participated in productive manual labour in agriculture and forest economies. Hence the caste order was discriminatory towards women more among the upper and middle castes than among the lower castes. Like racism, caste too was a system of social hierarchy and was therefore a target of politics of transformation. In post-Independence India liberal democratic politics and the mixed economy created several new complexities in the society. Electoral politics provided formal equality to all citizens irrespective of class, caste and gender since every adult citizen acquired the same right to vote. The Congress Party, which dominated the Indian political scene for the most time, sought to represent all classes and castes while trying to use state power to reduce social inequalities. After all, that was the character of the Congress-led freedom struggle which had mobilized members of all classes and all castes to overthrow colonial rule. Abolition of zamindaris was the most significant intervention in this process. Rural development through the blocks and later Panchayati Raj and expansion of education were the other significant measures to fulfil the basic rights of citizens. This political and economic process did introduce a dynamism in the caste–class order. Landlords and industrialists had to cope with the pressures of the liberal democratic process since middle and lower castes were in larger numbers than upper castes. The electoral system gave them a certain significance. Reservations in legislative and civil services for SC and ST gave rise to elite groups from among the deprived castes and tribes. Thus, politics created autonomous realms of rived castes and tribes. Thus, politics created autonomous realms of struggle and competition. A stratum of political elites also emerged with distinct features of their own in addition to identifiable upper classes and upper castes.

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By the late 1970s, however, the dynamics of the power process had acquired a new pattern. Class and caste forces had evolved their own methods of manipulating liberal democratic politics. At the same time the oppressed social groups had acquired greater awareness of their democratic rights. So during the 1980s and 1990s there was a reassertion of upper-class and upper-caste power on the one hand and regrouping of backward classes, tribals and Dalits on the other hand. Electoral politics had however fragmented all such forces. Hence the realm of politics had become intensely competitive and unstable. But in the process the agenda of democratic transformation of Indian society came to the centre stage for contestation, giving rise to violent confrontations between the state and the struggling groups. The dominant capitalist class advocated liberalization and globalization as the basic requirements for growth and prosperity and for eradication of poverty and gross inequalities. On the other hand, the social movements wanted to pursue an alternative agenda of egalitarian and sustainable development from below. This contestation can be demonstrated from the way the state formulated its poverty-eradication programmes. The processes of liberalization and globalization isolate the non-economic considerations from the focal economic considerations of growth and profit. Therefore, the problems of the poor and the deprived may actually get accentuated. Studies of the impact of liberalization on employment show that women have been adversely affected by liberalization (Agnihotri 1995–1996; Banerjee 1991; Shah et al. 1994). Many of them have lost jobs to men for reasons of technical efficiency and productivity. The formal economy has disintegrated, and the informalization of labour has made women’s employment insecure and irregular. In some sectors such as light industry women may still continue to have opportunities. But in the economy as a whole they have suffered. Withdrawal or reduction of welfare measures and public support for health also seriously hampered the women’s interests in general education, and maternity care has also seriously hampered the women’s interests in general and women in particular. The backward regions in the country, lacking infrastructure and adequate market conditions, do not attract national or international investment. These areas inhabited by tribals and lower castes experience further neglect in the phase of liberalization. Thus, the operation of the Indian party system, in the context of new social demands, the emergence of a multi-party situation and coalition politics and the trends in the Indian economy, especially in the phase of liberalization, make it even more imperative to understand the social dimensions of politics. This imperative is grounded in the fact that a certain socio-political support is needed for economic development. Capitalist liberalization seeks political stability, which is impossible

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without responding to the demands of resurgent social groups. Therefore, only when demands of workers and peasants, lower castes, tribal people, women and oppressed nationalities are fulfilled to a reasonable extent, can economic growth be a smooth process. History shows that often these contradictions are handled either by the authoritarian state or by manipulative politics of the elites. The leftist forces had rejected both these paths and had promised genuine democratic politics of the oppressed classes, but in practice they have still not been able to relate class politics with caste, gender and ethnic identity. Therefore, the agenda of Indian democratic transformation remains wide open for the whole spectrum of political organization and movements to test their respective models in political practice and move towards the realization of liberation of oppressed classes.

Social dynamics of power In studying the interface of class, caste and gender we recognize the centrality of class. The context of modern history of capitalism is where it is the most powerful force, with a worldwide drive shaping human relationships in all sectors of society. This, however, does not in any way reduce the centrality of caste and gender in particular contexts and spheres of action. Much of the intellectual discourse in our times refuses to recognize this dynamic interconnection. Some social movements too reflect the same understanding of exclusive preoccupation with either class, caste or gender. Questions may be raised as to whether the three categories have equal significance in the political economy. Most Marxists have put class as the decisive or determinant factor in the socio-political process, while many others from the Dalit and backward class movement and feminist movement would put caste and gender respectively as the primary force. It is not easy to resolve this debate. In my view capitalism as a class system is such a powerful, allencompassing process in the contemporary world that all other categories despite their autonomy and specificity are forced to reckon with it. The force of capitalism is even clearer in the current wave of globalization. This is not to say that caste and gender are not autonomous categories.

The changing class structure Class is a political economy category referring to a social group embodying certain relations of production. As a social group it is located in a mode of production. The ruling class or classes are the owners of the means of production. Means of production range from land and factories to technology and knowledge and other forms of capital. The ruled are those who are engaged in labour and are subject to exploitation by the owners. Thus

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class is not an income group or a simple economic category. It is a political economy category that is placed in the production relations as well as the power relations. Experience of the twentieth century in general and Indian historical situation in particular raise many complex issues relating to class. The concept of class is based on the application of the Marxist method of dialectal materialism to the understanding of history. History of human society is conceptualized in terms of how humans have explored nature and have engaged in producing things for satisfying human needs. At one point of time humans could get everything they needed from their natural environment. This was called the period of primitive communism, a situation of abundance of supplies where each got according to his/her needs. As time passed by, the stronger groups made the defeated tribes work for with. Thus emerged slave society which saw the beginning of settled agriculture. This was brought about by innovations in techniques of production such as iron tools, the plough and other techniques of production. As population grew and humans made new demands they did not have to directly put the slaves into work and allotted their land to groups of bonded population to till and give a rent to the owner. This was the period of feudalism with landlords becoming the ruling class and the serfs or tenants becoming the exploited class. With further innovation, the coming of electric power and new aspirations of a growing population came capitalism based on the principle of investment of capital in a market economy with the employment of wage labour. The bourgeoisie, the new ruling class, sought to transform society by pledging equality of individuals and rational principles into organizing social relations. It initiated building of a liberal democratic polity on the principles of political equality, liberty and right to property. A centralized authority in the terms of a modern state to maintain law and order and forge a cultural unity of a nation emerged in the phase of capitalism. But as Karl Marx pointed out capitalism, which had emerged as a liberating force, grew into a new system of exploitation. Operating on the law of accumulation of capital it was driven by the profit motive of the capitalists who denied what was due to the workers for their labour. It increasingly alienated the vast labour class, which had no control over the products of the production process. When the workers acquired a consciousness about this alienation and exploitation the capitalist class devised a series of political and economic measures to subdue their challenge. Political rights were conceded to the workers through trade unions and electoral democracy. A culture of equality and welfare capitalism was promoted by the capitalist system. Economic concessions were also made by improving conditions of labour and providing welfare facilities for workers. Workers were involved in management and also acquired some ownership rights in enterprises through the shareholding system. These measures constituted the modality

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through which the capitalist state exercised hegemony in society, i.e., mental and cultural domination over the society without having to resort to direct coercion. However, whenever workers’ challenge took serious proportions the state did resort to violent repression to protect the class order. The experiences of the twentieth century raised many new issues. First, why is it that the working class in the capitalist state in the West did not revolt? Is it because of the successful exercise of hegemony, or is it due to the successful way in which the capitalist system has restructured itself from time to time after every major crisis? Another issue is the rise of the middle class in the Western political economies – the class of engineers, doctors and other professionals. Marx had not predicted the expansion of this class in this direction. The middle class was expected to dwindle and identify with either the capitalist or the workers. In a way it has actually identified with the capitalists. But it is also an autonomous force in the political economy. In India the thrust of Nehru model of development was on the expansion of the middle class, a trend which has continued in the liberalization phase. Thirdly, the collapse of the Soviet Union showed that while the working class formally exercised power a bureaucratic elite had emerged in practice which ruled in the name of the working class. It was not a system where workers and peasants exercised power through democratic institution at every level of polity, economy and society. In colonial and post-colonial societies the experience of class formation may not be the same as in modern Europe, because colonialism did not eliminate feudalism while introducing capitalism. Hence all post-colonial societies were burdened with the co-existence of feudalism, capitalism and other specific formations in various combinations and degrees. Hence it is important to understand the complex process of class formation and social formations in the post-colonial society. Finally, at the end of the twentieth century it was clearly realized that the practice of class politics has to be integrally connected with caste, gender, race and ethnicity in concrete situations. The questions of hegemony of the ruling class, de-radicalization of working-class movement, rise of the middle class, working-class democracy, complex social formation in the Third World and interconnection of class, caste and gender – such issues have to be kept in mind in understanding the changing class structure and the political process in India. The Indian communist movement has debated the class character of the Indian state. While the CPI built up its thesis of national democratic revolution by pointing out the dominant role of the Indian bourgeoisie as a nationalist and antiimperialist force, the CPI(M) strategy of people’s democratic revolution is based on a recognition of persistence of elements of feudalism in India. Hence they are engaged in struggle against a big bourgeoisie as well as big landlords. According to them India’s big bourgeoisie is in collaboration

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with foreign capital, hence its anti-imperialist credentials are suspect. The CPI(M-L) stream consisting of several groups believes that Indian bourgeoisie is comparable in character, i.e., playing the role of a subsidiary or agent of foreign capital. According to the M-L, feudal relations still dominate Indian countryside despite the impact of the Green Revolution. The 17th Congress of the CPI held in Chennai on 14 September 1998 reiterated its programme of national democratic revolution and decided to forge a coherent front of secular and democratic parties to campaign against the BJP alliance. It also reaffirmed the need for left unity. The CPI(M) too reiterated its programme of people’s democratic revolution at the 16th Congress in Kolkata on 5–11 October 1998. The CPI(M) also focused its attention on the fighting force of the BJP. Both used the context of liberalization and globalization to vindicate their respective positions. The CPI referred to the contradictions and positions within the Indian bourgeoisie and showed how one section of it sought full integration with world capitalism and another section asserted autonomy. For the CPI(M-L) the present situation was evidence of submission of the big bourgeoisie to Western capital. These two communist parties, however, had come closer in their political line vis à-vis the Congress. They argued that since the BJP was a right-wing communal party leading the Indian government, mobilizing democratic forces against it should be the main platform. This they had done so far through the concept of a United Front of non-BJP and non-Congress parties which brought H. D. Deve Gowda and I. K. Gujral governments to power in 1996–1997, but after the 1998 elections they thought that an understanding with the Congress was necessary to cope with the BIP challenge. Thus, the communist parties ended two decades of anti-Congress politics, which they had followed since 1978. This was an indication of the communist parties’ compromise with upper-class politics, which Congress, now the force that strongly advocated liberalization and capitalist globalization, represented. This, of course, was justified by the communist parties as compulsions of parliamentary politics, without which the electoral rise of BJP could not be stemmed. The BIP-led government lost the vote of confidence by a margin of one vote in April 1999, necessitating fresh elections to the Lok Sabha. The CPI (M-L) groups reiterated their characterization of the Indian state as a semi-feudal, semi-colonial state, which was once again evident in the new phase of capitalist globalization led by the comprador bourgeoisie. The CPI (M-L) Liberation, in its party congress in 1995, did take note of elements of capitalist development in Indian agriculture. But like most other M-L groups it too concluded that India’s countryside was still dominated by semi-feudal agrarian relations. CPI (M-L) People’s War was even more forthright on the semi-feudal and semi-colonial character of

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the Indian state. Some M-L groups however initiated a debate to promote a fresh understanding of ‘globalization of capital’ and its implication for Indian revolution. They suggest that it is a certain degree of capitalist development in India which had made possible its integration with global capital. It implies that the semi-feudal characterization was no longer appropriate3 (Kurien 1996b). These formulations were retained in their subsequent party congresses as well. The phenomenon of the farmers’ movement had to be understood in the new context. The Shetkari Sangathana of Maharashtra led by Sharad Joshi exposed the rural urban contradiction in Indian political economy. It showed how the agrarian producers did not get adequate prices for their products, while urban populations and industrial workers were subsidized in numerous ways. Similar demands were raised by Bharatiya Kisan Union and Mahendra Singh Tikait in UP and Nanjundaswami in Karnataka. Interestingly enough, whereas Sharad Joshi’s organization wholeheartedly welcomed globalization, the latter two organized powerful resistance to it. This experience brought out contradictory features of the Indian agrarian situation. While on the whole the agrarian sector had lagged behind in the economy, sections of middleclass and rich farmers had come up who were keen to take advantage of the national and the global market. But the vast proportion of the agrarian population remained below the poverty line; thus, purchasing power in the countryside remained low in most of rural India. The debate on the class character of the Indian state is deficient in two respects. Firstly, it does not see the complexity of class formations as also the social relations involving class, caste and gender. It reflects an analysis of class differentiation in a pure economic way. Secondly, it does not adequately explain the reasons for the persistence of liberal democracy dominated by upper-class political parties and how they have managed to garner the support of the labouring classes to come to power in the states and the centre. Some attempt has been made by Suniti Kumar Ghosh in his study of the Indian bourgeoisie to explain the nature and evolution of the Indian capitalist class (Ghosh 1989). He shows how it acquired legitimacy in the course of the freedom struggle and continued to rule in post-Independence India through a variety of strategies. On the other hand, Pranab Bardhan ([1987] 1992) sees a dominant coalition of proprietary classes consisting of the industrial capitalist class, the rich farmers and the professional public servants in the exercise of political power in India. Bringing in the bureaucracy to an understanding of the ruling class is justified because the state is seen as an ‘autonomous actor’ by him. However, one has to probe further to find out to what extent bureaucracy continued to be a part of the upper-class, upper-caste, patriarchal and non-tribal power structure (Bardhan [1987] 1992).

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The so-called ‘Great Indian Middle Class’ was the talk of urban India in the 1990s (Varma 1998). It is the class which lives on its skill or professional services while having a small range of other productive assets. The strength of this class has grown in India. If the consumption standards are taken into account the figure as of the middle of the 1990s is estimated to be about 200 million. These are the official management executives, engineers, doctors, lawyers, teachers; skilled workers and petty traders, who constitute this class. They are the target for the products of multinational firms. However, if we take the proportion of income taxpayers, it is only 3 percent of the population, which is less than 30 million, which incidentally is about the quantum of English-speaking population of India. But surely there are many others who may not know English but market their services or engage in small-scale production trade and who may be included in this stratum. But does the middle class rule in India? Some like Bardhan would treat it as a component of the dominant coalition or, precisely speaking, a section of the middle class which is placed in key positions of the state apparatus exercising political power. Does this middle class cut across caste, gender and ethnic identity? Many studies show that it does not. In most states upper-caste or rising middle castes constitute the major chunk of the middle class. Males dominate all the middle class professions. Patriarchy permeates middle-class life and ideology. Thus, before celebrating the arrival of the Great Indian Middle Class one has to modestly probe the social basis of power in India. Even after five decades of planned development vast regions of rural India experience a new dynamics of class and caste domination, as illustrated by Anand Chakravarti’s study of Bihar (Mohanty 2004). Both traditional upper castes and newly emergent dominant castes who have access to land and political resources today exploit what he calls the underclass, the landless and the poor, who are also the lower castes by birth. Class and caste power deeply influences the operation of the state in Bihar. The conceptual framework explains the cumulative phenomenon of class, caste and gender which captures the power dynamic of much of rural India. What are the changes that have occurred in the nature and the functioning of the Indian capitalist class since the onset of liberalization and globalization in India? Assessing the first decade of the economic reforms, Prabhat Patnaik, Chandrasekhar and Jayati Ghosh explain why Indian capital which had been a beneficiary of protection earlier went along with the new policies (Mohanty 2004). This is because the rulers were neither willing to go for structural reforms with egalitarian objectives nor were they able to go for export markets on their own. Instead we witnessed a proliferation

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of capital in different spheres at home and abroad in collaboration with metropolitan capital. It could do so only for a price, opening the Indian market to foreign capital. Pursuing a low risk for improved versions of old products and expanding the small-scale sector led to the proliferation of the capitalist class. But big capital still experienced relative decline. So it looked for expansion abroad. It took over public enterprises and developed partnerships with metropolitan capital. Many new elements emerged to operate the new economy. The NRI entrepreneurs and professionals as well as the new Indian middle class were the prominent agencies. In the process the neo-liberal state did renege on many of its welfare roles, but managing the market and maintaining law and order remained its central function. Increased economic centralization in a growing authoritarian state, conflicts involving corporate groups, tensions among the local elites and above all income inequality and insecurity among common people constitute the emerging scenario in India. As for the structure and politics of the working class in India, we get the basic picture from Sharit Bhowmik’s essay (Mohanty 2004). The Indian working class in the organized for continues to remain a small workforce compared to the vast number of workers in agriculture and other unorganized sectors. The politics of trade union movement has had periods both of political militancy and also of strategic collaboration with the state in India. Instead of shaping the overall political course of social struggles the trade union movement in India has been derivative of party politics in the electoral arena. Trade unions have functioned as mass fronts of political parties following party lines rather than functioning as autonomous organizations. Moreover, workers’ struggles have not been integrated with agrarian movements or other social struggles on the questions of caste, gender and ethnic identity. Thus, the class dimension of Indian politics has been conspicuous and complex at once. The rise of the industrial bourgeoisie and the rich farmer is unmistakable, both in terms of their economy and in the exercise of state power. But it is complex because there are contradictions within the industrial bourgeoisie, between urban bourgeoisie and rural bourgeoisie, between all-India bourgeoisie and regional bourgeoisie and between Indian bourgeoisie and foreign capital. The contradiction between capital and labour in India has not sharpened in the normal way. Operation of feudal forces through the institutions of bonded labour, unorganized workers and persistence of princely families in politics made class politics very complex. It is complex in the sense of simultaneous operation of precapitalist and capitalist modes in the post-colonial period. This complexity is even deeper when class category is interfaced with castle gender and ethnic categories.

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Caste and politics Caste is a social group placed in a hierarchical order, derived from certain Hindu cultural prescriptions. It originated as Varna dividing society into four occupational groups – Brahman (priest), Kshatriya (warrior), Vaisya (trader) and Shudra (labourer). It also placed them in that order of social status. A large number of people who performed what was considered ‘impure’ tasks were called outcastes and earlier known as ‘untouchables’. With the growth of population, economy and division of labour, Varnas split. New groups of the same kind of hierarchy emerged and were known as ‘jatis’. Despite a degree of mobility and assimilation the hierarchy and social oppression by confining people to social boundaries to perform defined roles and enjoy prescribed status in society persisted throughout Indian history. Social and religious movements to reform this order contributed to weakening the oppressive character of the caste system, but they failed to abolish it. The commitment in the Indian Constitution to promote equality and pursue concrete measures has no doubt made some dent, but the institution is far from gone. The anti-caste struggles in the recent decades in India’s politics of democratic transformation have raised the number of significant issues. B. R. Ambedkar’s 1916 essay explained the specificity of caste in India as a product of Brahmanic social structure as well as ideology (Mohanty 2004). While one trend of thought in anthropology highlighted caste as an ideological construct based on the Brahmanic concept of purity and pollution, the Ambedkar trend of thought took it both as ideology and as social structure. Ghurye’s (1952) pioneering work on caste showed the social base of caste. Lohia (1964) too emphasized the social basis of caste and the need for changing the production relations so that caste inequality can be destroyed. M. N. Srinivas’s concept of ‘dominant caste’ operated at a different domain (Mohanty 2004). Focusing on the social and political behaviour of the numerically largest caste in an area which made a decisive impact on the political process of a region, Srinivas captured the nature of a rising trend of the backward class politics in the course of his study of the Vokkaligas and Lingayats in Karnataka. But as Oommen points out, it did not apply in all situations everywhere in the country (Mohanty 2004). Nor did the dominant caste successfully dominate politics and, above all, the economy, But the notion of ‘dominant caste’ remains a significant heuristic concept to explain the phenomenon of large-scale caste mobilization, as in the case of the Kammas in Andhra Pradesh, the Yadavs in Bihar and UP and Jats in Haryana and Rajasthan in the 1980s and 1990s. The structural change in the Indian countryside through the zamindari 1950s and Green Revolution in the 1960s and 1970s unfolded a class caste

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dynamic which became evident in Indian politics in the 1980s and 1990s. With the abolition the former tenants became owners of land. With the rise of agricultural output in the course of the Green Revolution their economic status went up. But there was no corresponding rise in their social and political status. In the electoral arena the peasant castes began to emerge as a numerically large force in the 1970s and thereafter remained a significant political force in Indian politics. The V. P. Singh government’s decision on reservation for backward classes in August 1990 exposed the unevenness of social representation in the state apparatus, especially bureaucracy in India. D. L. Sheth captures the dimensions of this debate (Mohanty 2004). He points out how reservation is a necessary step towards long-standing social inequalities. But as Kancha Illaiah points out, Dalit liberation involves a comprehensive transformation at the level of both structure and culture combating feudal, capitalist and Brahmanic institutions and ideas at every level (Mohanty 2004). Kothari underlines that there is a continuous process of churning of the caste phenomenon in India (Mohanty 2004). Its basis and modality of functioning high constantly change through electoral politics, economic development, cultural change and an evolving egalitarian ethos. But many have pointed out that only when the fight against caste inequality is built into a wider strategy of comprehensive social transformation, would oppressed castes and classes have better prospects (Mohanty 1995b). One of the most significant trends in the democratic struggles in contemporary India is the growth of the Dalit movement. What is the epistemological breakthrough that the concept of Dalits accomplished over the Gandhian concept of harijan? Gopal Guru discusses the political journey of this concept that continues to acquire newer and newer ideological and political meaning in the course of the social movements and policy debates in the recent decades in India (Mohanty 2004). The existence of multiple identities among the Dalits is as real as the interconnection among the social categories. Both the trends constitute the politics of Dalit–Bahujan discourse. Gopal Guru says, ‘Dalit category has the logical insight which contains an element of negation and also the conjunction of categories from the same logical class’ (Mohanty 2004). An interesting controversy arose in 1998 in the course of the preparation for India’s 2001 Census as to whether caste enumeration, which had been dropped since the Census of 1931, should be reintroduced for this census. Some social scientists argued that since the backward-class reservation was being implemented as a matter of policy a caste census would help in systematically doing it. It would also reduce speculative, imaginary, vague estimates of caste composition, which generate emotive mobilization on various occasions. On the other hand, such a move was criticized severely by a wide spectrum of social scientists. They pointed out that backward-class

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reservation was already implemented on the basis of local certification. Caste as a social category of official classification had been abandoned as a step of democratization of Indian society. Its revival under state auspices would reinforce even fading caste identities and aid exclusivist caste mobilization. Deprived caste groups in any way organized themselves as forces in democratic politics, either autonomously or in coalition. But simultaneously they participated in the democratic process as workers, peasants and party supporters or just as citizens. This process of democratization would be thwarted by such a step. Moreover, there have been innumerable changes in caste identities which would be difficult to codify. Persuaded by the latter viewpoint, the BJP-led government decided to drop the idea of reviving the caste column in the census. There was no dispute, however, over continuing the enumeration of scheduled castes and scheduled tribes. There was a sharp and serious debate in India as to whether caste-based discrimination, especially the issue of untouchability, should form a part of the official agenda in the UN Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban, South Africa (27 August–7 September 2001). The government of India’s view, which was shared by some leading sociologists, was that caste was different from race, as the former was a system of social stratification while the latter was a biological characteristic. This was strongly refuted by many well-known sociologists and democratic rights activists, who pointed out that race too was a social construction.4 Indeed, while each category of discrimination has some specificity, caste having its roots in Brahmanic ideology and social structure, both race and caste have evolved as unequal practices through a social process. What was most surprising was the hesitation on the part of the Indian ruling establishment to openly discuss the persistence of the caste-based oppression in India, while many significant gains have been surely made in the democratic transformation of the caste order. Kancha Ilaiah documents an important point of departure in the evolution of Indian politics in his study of the Dalit movement in Andhra Pradesh in the 1980s (Mohanty 2004). The incidents of atrocities on Dalits – he uses the term Dalit-Bahujan – in Karamchedu and Chundur ‘restructured the content of political discourse’ in the state and the major political parties adjusted their political strategy as a result of the widespread democratic protest on this issue. Land, caste and politics were seen together while recognizing the specificity of the systemic oppression of the Dalits. The emergence of an independent Dalit movement in India was a notable factor in Indian politics with significant effects on the party system as well as the political system of India. The history of the past 50 years of caste and politics in post-Independence India can be summed up by referring to three trends. Firstly, the consensus

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for elimination of caste hierarchy in the social order has grown. This is so despite the fact that caste practices such as marrying within a caste and certain forms of social interaction within castes have persisted. That caste is an irrational category of human identity is now believed by more and more people. Thus the perspective of the freedom struggle which was enshrined in the Constitution of India has acquired greater salience in independent. Abolition of untouchability in Article 17, forbidding discrimination on the caste in Article 15 and ensuring equality before law irrespective of caste in Article 14 have given rise to legitimate public policy and expanding public practices in India (in terms of government policy measures and people’s social practice). Second, the consciousness among deprived castes has steadily grown and has manifested forms of political mobilization. The Constitution has already recognized the affirmative action by providing for reservations in legislatures and civil services for the scheduled castes and scheduled tribes right from 1950. As per the Article 16 (4) a Backward Class Commission was set-up in 1978 under the leadership of B. P. Mandal which gave its recommendation in 1980. It was only in 1990 that the V. P. Singh government implemented one of its recommendations, giving 27 percent reservation for backward classes in the central civil services. Even though legislation had provided for SC/ST reservation only for 10 years, it has been extended indefinitely because of the pressure of SC/ST communities. The fact is that they still remain economically underdeveloped, powerless and socially oppressed by the upper castes. Therefore, today the dynamics in India do not allow any political party to terminate their appointment. On the other hand, the backward-class reservation which had started in south Indian states and was enforced at the central level in 1990 is currently in action in the rest of the states of India. Interestingly enough, there is demand for backward-class reservation in state and central legislatures because electoral politics developed its own logic of arithmetic, and a large number of backward-class members have entered the legislature. However, when the 81st Constitution Amendment Bill for one-third reservation was taken up in 1997 and 1998 there was a demand for backward class within the women’s quota. On the one hand, this exposed persistence of patriarchy within the caste order, including the backward classes, which had not provided opportunities to women of these classes to get education and employment and participate actively in the public arena. On the other hand, it exposed a structural of sectoral movements such as backward class movement which did not relate their political movements adequately with gender and class. Had that been the case women members would have come up, and there would not have been a demand for separate backward class reservation for women. It indicated an emerging paradox.

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It was understandable to have reservations for SC/ST within the overall quota since there was a constitutional provision for SC and ST quota, onethird of which would now be for women. But there was no constitutional provision for representation in legislatures, for which women’s quota was being debated. Thus, there was a continuing pressure for protecting the rights of scheduled and other backward castes during the 50-year period. The third trend is the persistence of caste inequality and upper-caste domination in the political economy as a whole. This is first of all evident from the fact that reservation was still considered necessary to safeguard the interests of the lower castes, without which even the few privileges that they get to work in the civil services and in the legislature would elude them. In fact, reservation has turned out to be a ruling-class strategy to handle the caste contradiction and subdue the challenges which occasionally arise from the oppressed castes. The scheduled-caste officials, MLAs and MPs get quickly co-opted by the upper-class, upper-caste elite and perform the role of agents for the latter to get votes for them from the SC/ST constituencies. There is some change in this respect in the case of the backward class politicians who have acquired certain autonomy. But none of the major political parties such as Congress and BJP are dominated by the backward classes even though backward class members may sometimes occupy leading posts. The Samajwadi Party led by Mulayam Singh Yadav and Rashtriya Janata Dal led by Laloo Prasad Yadav represented autonomous forces of backward classes, and the Bahujan Samaj Party focused on the Dalits. But their experiments mainly influence regional politics. The decline of the economic role of the state and expansion of the private sector in the era of liberalization and globalization opened up new opportunities for the upper castes and upper classes since they had access to specialized education. Hence in the new economic milieu not only welfare measures by the state for the lower caste will be reduced, but also the access to employment may be shrinking. To address some of the new problems faced by the Dalits an initiative was taken by the Congress government of Madhya Pradesh in early 2002 which brought together many Dalit activists and intellectuals from various parts of India. They adopted the Bhopal Declaration, which emphasized, among other things, the need to open up the private sector to provide opportunities to the Dalits. Thus, during the 50-year period the Indian ruling classes have used the reservation policy as an excuse for not undertaking serious measures such as land reforms, education or special employment-generation programmes for the scheduled castes which would raise their productive capability and help them to rise on the social ladder. In this perspective the Panchayati raj system with reservations for SC, ST and BC with one-third reservation for women does provide certain

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opportunities for enabling lower-caste men and women to acquire certain rights. But since this programme is not accompanied by land reforms, education and other measures, it may also turn out to be another institution of ruling-class hegemony meant to manage rural tensions at the grassroots level. A local elite has already come into being which is basically upper-caste or upper-backward-caste in composition which has benefitted from development funds at the block level. Political parties, government bureaucracy and the local elite constitute the power nexus which would most likely run the Panchayati institutions with a semblance of democratic participation by SC/ST, BC and women. Hence the Panchayati raj which was conceived as an institution of egalitarian and democratic transformation may actually consolidate trends of socio-economic inequality. Only when political movements of the oppressed castes and other oppressed sections put pressures on these institutions can they perform a democratic role. Thus, while caste inequality in practice is increasingly despised in contemporary India and special measures for deprived castes continue to be favoured, upper castes still dominate the structures of state power at the turn of the century. This situation of contradictory trends and intensified struggles is likely to continue well through the twenty-first century. Thus, Independent India did not see yet another ‘avatar’ (incarnation) of the caste, an inherent characteristic of Indian society, but new dynamics of domination and resistance involving the social phenomena such as class, caste, race, ethnicity and gender.

Women’s rights Feminism refers to an ideology which believes in establishing equality among men and women. The feminist discourse started with taking women’s oppression as a category and thereby pursuing realization of women’s rights in different spheres such as politics, economy and society. During a certain period, sex as a category came up in political analysis. But very soon it was realized that often sex referred to men and women as biological entities, with female sex or male sex as categories of population. Though the censuses continued to refer to sex of a person as male or female, sex as a category in the women’s liberation discourse receded. In its place came gender, which is a social category. Thus, gender justice refers to delivery of justice irrespective of gender or to both genders, implying that injustice to one gender is impermissible. Sexuality, however, remained an important category. It refers to biological and emotional capacity and relationship involving men and women. For a long time, stereotyped views on sexuality dominated human thinking and were part of the ideology and structure of patriarchy. In that framework

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woman was an object of male sexuality. Women’s sexuality was geared towards causing temptation to men and satisfying male desires. The capitalist epoch continued to create an industry based on satisfaction of male desires. A new phase started with the increasing recognition of homosexuality, lesbianism, same-sex marriage and a variety of sexual relationships. It gave rise to new definitions of human units with a whole new understanding of sexuality. These relationships created new power equations among human beings and demanded legitimation by state and society. Thus, political construction of sex and gender opened new avenues of understanding and social action. In contrast to a male-dependent view of the female gender which existed in all religions and cultures, there emerged a new view of gender relationships. That women are a weak species was more an ideological and cultural construct than an empirically tested view. That females always depended on males for their existence was firmly contested. Not only did they have potentiality for all possible creative activities, in addition they had a unique, biological capacity to conceive and produce human beings. This reproductive capacity of women kept the human race alive. This capacity needed to be recognized as a special gift of women while recognizing women’s capacity for all possible types of work which men undertake to do. This too had to be connected with the discourse on democratic rights. The woman’s right to her body, right to choose a partner in life and right to conceive or not to conceive a child and right to choose safe contraceptives were as important as right to education, employment and political participation. In this realm too, the women’s movement was confronted with the family-planning drives launched by the state and also the campaigns promoting a variety of contraceptive devices marketed by multinational companies. The state was more concerned about assured methods of contraception than with women’s health and choice of safe contraceptives. Thus, the political agenda of the women’s movement was discovering new arenas of oppression day by day. So ‘engendering development’ means pursuing development policies in such a way that the female gender, which has been oppressed all these centuries, gets benefits out of the development process. This shows that gender is necessarily related to other social categories such as class, caste and ethnic identities. Hence a number of controversies have arisen on the strategy and tactics of women’s liberation. While anti-caste movements exposed the oppressive character of inequalities ordained by birth into a social hierarchy, the women’s movement dealt with the problem of inequality both in specific and general ways. In the specific sense, inequality based on gender put women in a social, economic and political disadvantage, as objects of oppression by patriarchy. But this movement did something of long-term theoretical significance. It

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simultaneously drew attention to structures of domination such as patriarchy which may not be evident at the moment, but one should be on the alert for them. Thus, women’s movement made a major contribution to the discourse on domination and freedom (Kapur and Cossman 1996). But here, too, the question of primacy has been debated about class and gender. One stream of thought exclusively prioritizes gender (Bhasin 1993). On the other hand, Ilina Sen shows the linkages between class and gender (Mohanty 2004). Women’s movement has much achievement to its credit both in terms of institutional gains such as women’s reservation in Panchayati raj and widening consciousness about women’s rights. But as Ilina Sen points out it may have reached a crossroad (Mohanty 2004). It has to decide how far it can rely on the state to realize gender justice. Nandita Shah et al. (1994) and her colleagues warn that liberalization and globalization have created new adversities for women, thus challenging them to forge new strategies of struggle. In the same vein Nirmala Banerjee (1991) spells out clearly how the Structural Adjustment Programme has led to shrinking opportunities for women.

Creative society In an emerging creative society many hitherto subdued contradictions become active and manifest. Oppressed classes, castes and women seek fulfilment of their creative potentiality and become more and more aware of the obstacles to the realization of their creativity. While the specificity and autonomy of each contradiction has to be recognized, interconnection among the dimensions of power has to be simultaneously recognized. Otherwise, the problem of exclusiveness of particular movements will persist. The actual life experience – the production process, making both ends meet and struggling for power and fulfilment of aspirations – bring out the interconnections in day-to-day practice. In actual life and struggle people make history as people – as individuals and groups who have specific identities and multiple identities at the same time and whose contradictions are ordered in the historical context of the ongoing struggle.

Notes 1 This essay was first published by Manoranjan Mohanty. 2004. ‘Dimensions of Power and Social Transformation’, in M. Mohanty (ed.), Class, Caste, Gender, pp. 14–44. New Delhi: Sage Publications India Pvt. Ltd. 2 See R. S. Rao. 1997. Towards Understanding Semi Feudal Semi Colonial Society. Hyderabad: Perspectives. Especially chapters ‘Capitalism in Indian Agriculture: An Enquiry’ and ‘Capitalism without Capital’. 3 See also CPI (M-L) Liberation Party Congress Documents, 1995.

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4 For a detailed analysis, see the issue on ‘Exclusion: A Symposium on Caste, Race and Dalit Question’, Seminar, (508), December 2001.

Bibliography Agnihotri, Indu. 1995–1996. ‘Gender and Development: Need for a More “Engendered” Alternative Development Plan’, Alternative Economic Survey. London: Zed Books. Banerjee, Nirmala. 1991. Indian Women in a Changing Industrial Scenario. New Delhi: Sage Publications. Bardhan, Pranab. 1992. The Political Economy of Development in India. New Delhi: Oxford University Press. Bhasin, Kamala. 1993. What Is Patriarchy. New Delhi: Kali for Women. Ghosh, Suniti Kumar. 1989. The Indian Bourgeoisie. Calcutta: Subarnarekha. Ghurye, G. S. 1952. Caste and Class in India. Bombay: Popular Prakashan. Kabra, Kamal Nayan. 1995. ‘Crisis in India’, in Indian Political Economy Association. New Delhi: Yuvasmbad Prakashan. Kapur, Ratna and Brenda Cossman. 1996. Subversive Sites: Feminist Engagements with Law in India. New Delhi: Sage Publications. Kurien, C. T. 1996a. Economic Reforms and the People. New Delhi: Madhyam Books. Kurien, C. T. 1996b. Globalization of Capital. New Delhi: Lok Dasta. Lohia, Ram Manohar. 1964. ‘Towards the Destruction of Caste and Clan’, in Lohia: The Caste System. Hyderabad: Navahind. Mohanty, Manoranjan. 1995b. Sites of Change. New Delhi: Frederich Ebert Stiftung. Mohanty, Manoranjan. (ed.). 2004. Class, Caste, Gender. New Delhi: Sage Publications. Rao, R. S. 1997. Towards Understanding Semi Feudal Semi Colonial Society. Hyderabad: Perspectives. Shah, Nandita et al. 1994. ‘Structural Adjustment, Feminization of Labour Force and Organizational Strategies’, Economic and Political Weekly, 29(18). Varma, Pavan. 1998. The Great Indian Middle Class. New Delhi: Penguin Books India.

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Constitutionalizing rights, negotiating difference The Indian experiment1 Ashok Acharya

Ideally, constitutions are understood as expressions of the shared political values of a political community. However, in plural and deeply divided multinational states there is no consensus as to what properly constitutes the shared space and the understanding of political values.2 Given the nature of irreconcilable differences most of the time, constructing a common space is a task laden with hazards: minority groups in many multinational states rightfully object to the dominant majority’s role in arbitrarily defining and filling up the shared space with the latter’s own cultural symbols. In the absence of institutional protections, especially a constitution that does not at the least define the shared space that all citizens enjoy and secure some guarantees to protect their rights, minorities are at risk in many societies. How does a country of India’s diversity constitutionally define citizenship that is fair to its minorities? With regards to India, this chapter attempts a study of two dimensions: the historical and the normative. The historical review is necessary to give us a glimpse of how group rights in the Indian context acquired political coinage; and the normative analysis will probe the justifications of such rights in relation to recent discussions on multiculturalism in contemporary liberalism. Essentially, two questions are addressed: First, how did the founders of India’s constitution negotiate questions of diversity? Second, how does the Indian model measure up to contemporary liberal and multicultural interventions in securing recognition for identities? Much of the discussion will explore how questions of difference, particularly of caste and religion, were constitutionally treated during the making of the constitution, keeping in view constitutional developments in the colonial period. With helpful insights on how such questions were raised, addressed and justified in policies of accommodation, the concluding section juxtaposes the final outcome of the constitution-making process to the multicultural character of liberal constitutionalism. In contrast to rival views that group-sensitive provisions may not be entrenched in a liberal constitution, the Indian constitutional

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experiment offers an alternative in accommodating various claims of identity. As interest in constitutional engineering related to issues of diversity increases, the Indian model offers an experiment worth emulating.

Ordering difference: the colonial background The Cabinet Mission, led by Lord Pethick-Lawrence, Secretary of State for India and senior member of the Mission, visited India in 1946 to bring about an understanding between the Congress and Muslim League. The outcome of the Mission’s proposals, called the Cabinet Mission Plan, was one of the last-ditch attempts on the part of the colonial government to bring about political reconciliation between the Congress and the Muslim League. As a political understanding between the two parties was not possible, the Mission advocated a federation within which provinces would have complete autonomy subject to federal powers such as foreign affairs, defence and communications. The federation would include both British India and the princely states. The Mission’s proposal was a watered-down version of a tighter federation envisaged by the Congress. In a continuation of past colonial practice of according political recognition to groups who conceived their interests to be at variance with the Hindu majority, the Mission wanted adequate safeguards to be put in place for other minorities. It proposed the setting up of a Constituent Assembly to draft a constitution for India. In forming this assembly to decide a new constitutional structure, the Mission felt the first problem was to obtain as broad-based and accurate a representation of the whole population as was possible. After debating the desirable method of adult franchise to elect members to the assembly, the Plan endorsed a second-best practicable solution of utilizing the recently elected Provincial Legislative Assemblies as electing bodies to the Assembly. However, as the elected provincial assemblies did not reflect proportionately the sizes of their assemblies to the population, the Mission concluded that each province ought to be allotted a total number of seats proportional to its population, in the ratio of one to one million. Second, it found it fair to divide this provincial allocation of seats between the main communities in each province in proportion to their population. And third, it provided for representatives to be elected by the members of their community from the legislative assembly. In what is believed to be a very crucial decision with regard to future constitutional deliberations on matters of importance to minorities, the Mission recognized three communities – ‘general’, Muslim and Sikh – the general community including all those who were not Sikhs or Muslims. The Plan was a culmination of a series of political experiments undertaken in the past to acknowledge, recognize and order social and cultural

Constitutionalizing rights, negotiating difference 59 difference in India. The method of selection of Indian representation during the colonial period broadly followed the principle of representation of communities, not individuals. For purposes of representation through much of the pre-Independence period, the British viewed India as ‘essentially a congeries of widely separated classes, races and communities with divergences of interest and hereditary sentiment, which could be properly represented only by those who knew and shared their sectional opinions’.3 This view of a corporate India had political consequences, most notably group preferences in matters of political representation. Separate representation accorded by the colonial government covered class, religion and economic interest. This pre-modern approach to India conflicted with the modern perceptions of the latter-day nationalist elites who championed notions of equality, individuality and national unity. Although the Government of India Act of 1909 introduced separate electorates4 for the first time, the roots of such a policy were already visible in the Indian Councils Acts of 1861 and 1892. The 1861 Act is generally credited with the introduction of the representative principle into the Indian Constitution by requiring that at least half of the new or additional members of the Governor General’s Executive Council and the Provincial Legislative Councils be filled from outside the ranks of the civil service, which effectively meant inclusion of natives. The 1892 Councils Act, however, was more specific in requiring that for the majority of the positions so filled, recommendations were to be made by the local bodies or corporations such as religious communities, municipalities, universities and chambers of commerce. Although the process of representation was not secured through direct election, the effective representation of candidates recommended on the basis of group membership meant that in the Britishestablished councils seats were reserved for commercial interests, large landowners, university faculties, Anglo-Indians and Muslims among others. The Govt. of India Act, 1909, continued the tradition of separate representation of the 1892 Act with two differences: (1) the process was formalized, and (2) the scope of representation was enhanced and separate electorates provided for Muslims for the first time. (The 1909 Act needs, however, to be seen against the backdrop of the Morley-Minto reforms and the partition of Bengal into Hindu- and Muslim-concentrated territories.)5 The 1909 Act is pertinent to the extent of unfolding an official policy that recognized by way of introducing separate electorates that the two communities, Hindus and Muslims, could not be anticipated to vote together for their common good.6 The 1919 Govt. of India Act, following the Montagu-Chelmsford Reforms, not only advocated the continuation of separate electorates for Muslims on the basis of the Lucknow Pact between Congress and the Muslim League

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but also extended the same principle to Sikhs in Punjab and more generally to Europeans, Anglo-Indians and Indian Christians, while a certain proportion of non-Mohammedan seats were reserved for non-Brahmins and Mahrattas in the provinces of Madras and Bombay, respectively. All this ran coterminous to the provision of special representation to landholders, universities, commercial and landed interests and to any other community or class that may have failed to secure adequate representation on the councils (Menon 1957: 23). Following the politics of bargaining and the stiffening of attitudes by the Muslim League, which had a different vision than the Congress on the future of self-government and the place of Muslims in post-colonial India, Mohammed Jinnah, the leader of the Muslim League, proposed his ‘14 points’, of which a few deserve mention. Jinnah in consultation with other Muslim leaders argued that: •

•

•

•

•

•

•

All legislatures in the country and other elected bodies shall be constituted on the definite principle of adequate and effective representation of minorities in every province without reducing the majority in any province to a minority or even equality (point 3). Representation of communal groups shall continue to be by separate electorates provided that it shall be open to any community at any time to abandon its separate electorate in favour of joint electorates (point 5). Full religious liberty, that is liberty of belief, worship and observance, propaganda, association and education, shall be guaranteed to all communities (point 7). No Bill or Resolution or any part thereof shall be passed in any legislature or any other elected body if three-fourths of the members of any community in that particular body oppose it a being injurious to the interests of that community (point 8). Provision should be made in the Constitution giving Muslims an adequate share along with the other Indians in all the services of the state and in local self-governing bodies having due regard to the requirements of efficiency (point 11). The Constitution should embody adequate safeguards for the protection of Muslim culture, and for the protection and promotion of Muslim education, language, religion, personal laws, and Muslim charitable institutions and for their due share in grants-in-aid (point 12). No Cabinet, either central or provincial, should be formed without there being at least of one-third of Muslim ministers (point 13). (Menon 1957: 36–37)

Jinnah’s demands of 28 March 1929 are to be seen against the backdrop of an activist colonial policy that was intent on satisfying demands of

Constitutionalizing rights, negotiating difference 61 groups for rights of representation. For reasons of national unity the Congress took an entirely different view. Failing the colonial process of dividing the nationalist front on lines of group segmentation, the Congress opposed the British initiatives and refused to cooperate with the authorities. The Congress’s recalcitrance on the one hand and the Muslim League’s uncompromising intransigence for retention of the separate electorates on the other meant that the British had to engage all actors in attaining a negotiated settlement towards self-government. During the 1930s the British invited members of the Congress, the Muslim League and leaders of other groups to a series of Round Table Conferences with the ostensible purpose of finding a just settlement of disputes regarding self-government and the constitutional status of the minorities. It was hoped that the ensuing deliberations would pave the way for a workable Indian constitution that would be fair to the groups. Although the first Round Table Conference (convened in late 1930) failed owing to the refusal of the Congress to participate in its proceedings, the second Round Table Conference (in which all parties, including the Congress, participated) dwelt at length on questions of minority representation. However, the proceedings were by and large inconclusive on the central issue that plagued the deliberations. All minorities except the Sikhs demanded separate electorates. To Gandhi’s surprise and chagrin, what was most troubling was the demand by the untouchable castes, or the Depressed Classes, for separate electorates. Ambedkar, who represented the latter category, had joined hands with other minorities to enlarge the scope of separate electorates. Although Gandhi was sympathetic to the demands of religious minorities and harped on the necessity of a commonly agreed formula of minority representation, he was far from conceding similar treatment to the untouchables. Gandhi argued that the untouchables were a part and parcel of the Hindu community and need not be granted separate electorates. Gandhi’s was an emotive appeal. As the matter remained unresolved, British Prime Minister Ramsay MacDonald, who was also chairing the Minorities Committee, assumed responsibility for finding a suitable solution acceptable to all at a later date. A few months later, on 16 August 1932, the Communal Award was proclaimed. The Award not only granted separate electorates to Muslims, Europeans, Sikhs, Indian Christians and Anglo-Indians, with some reserved seats for Marhattas in selected general constituencies in Bombay, it also extended the benefits to the untouchables, or the Depressed Classes. The untouchables were granted both general voting rights and special and reserved seats. The Communal Award followed unsuccessful attempts in the Round Table Conferences held in London between British colonial administrators on the one hand and other communities representing British India on the other to hammer out a workable solution towards

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representation of minorities in Indian legislatures. The Award was a unilateral imposition of the British view of what sort of representation different communities in India would require. The Indian communities themselves were divided on the acceptable basis of a power-sharing arrangement in legislatures. While the Muslims found common cause with the depressed classes or the untouchables, the Anglo-Indians, a section of the Indian Christians, the Congress, the Hindu Mahasabha and the Sikhs remained opposed to demands of Muslims and untouchables. The award sought to break this impasse between communities. It created separate electorates for both communal and non-communal groups: for the general (mostly Hindu), Muslim, Sikh, Indian Christian, Anglo-Indian, European, untouchables and tribal and backward areas belonging to the first category, and labour, commerce, landholders and universities belonging to the latter category, with a few reserved seats for women as well.7 In effect, the idea of separate electorates was expanded to include all minorities and brought under its ambit the untouchables. Gandhi was strongly opposed to granting of separate electorates to the Depressed Classes or the untouchables on grounds that the untouchables formed an indivisible part of the Hindu community, and this representational schema would further alienate them from the larger community. In protest, he went on a fast unto death. Following Gandhi’s fast and his negotiations with the leader of the untouchables, B. R. Ambedkar, in what is historically referred to as the Poona Pact, agreed to do away with the system of separate electorates for untouchables. Having lost the separate electorates, the Depressed Classes were compensated by an increase in reserved seats to be elected from joint or undifferentiated electorates, higher in number than what was originally stipulated in the Communal Award.8 The pact basically established an enduring pattern for the representation of the Scheduled Castes and Tribes, one that continues until today. The historic understanding also unleashed a series of Congress-sponsored efforts to abolish the practice of untouchability and secure their inclusion within the Hindu community through legal and social reformist means. The Government of India Act 1935, a bulky and exhaustive document detailing provisions for a federal government that encompassed British India and the Indian princely states, not only retained much of the representational scheme unfolded by the Communal Award of 1932 in relation to the minorities but also included within its ambit more safeguards for different communities, one of which led to the Instrument of Instructions issued to the governors in 1937 requiring them to secure a due proportion of official positions to the several communities. Despite a long list of safeguards for minorities instituted by the colonial administration, the political history of the subcontinent in the 1940s led

Constitutionalizing rights, negotiating difference 63 many to accept the inevitability of partition. In particular, the failure of the Congress and the Muslim League to enter into genuine and workable powersharing arrangements in the provincial governments that came to life for a brief spell between 1937 and 1939 made a united India seem implausible. In 1940 the Muslim League adopted the famous Pakistan resolution, which stated that ‘no constitutional plan would be workable or acceptable to the Muslims unless it recognized the basic principle that geographically contiguous units should be demarcated into regions so constituted that the areas in which Muslims were numerically in a majority were grouped to constitute “Independent States”’ (Shiva Rao 1967; Vol. 5: 744). Between 1940 and 1947, the inevitability of the partition was increasingly felt to be unstoppable, with the Muslim League’s demands of a separate and territorially organized Muslim nation remaining uncompromising and the lack of flexibility and creative thinking on Congress’s side jettisoning any remaining scope for rapprochement. During negotiations between the Congress and the League with the helpful intervention by the British to arrive at a mutually agreed self-government formula, it was clear that the only important item remaining on the agenda, short of a workable powersharing arrangement, was to work out the modalities of transfer of power with a continued focus on the protection of the interests of minorities, one that eventually formed the hub of the Cabinet Mission Plan, outlining in detail the structure and goals of the Constituent Assembly. The brief historical sketch outlined here provides us with a few insights in constitutional engineering and patterns of claims-making by groups during the pre-independence period. The colonial trends vis-à-vis the issue of minorities clearly show that the question of adequate representation, especially that of separate electorates, formed the primary demand of minority identities. At later stages this demand was expanded to include other safeguards such as reservation of positions in government jobs and the provincial and federal executive (Retzlaff 1960: 29). The British, on their part, kept insisting on the need to arrive at a just solution of the ‘minority problem’ prior to any constitutional settlement of the transfer of power. In this insistence the British largely viewed themselves as playing the role of an impartial and arbitral authority (Shiva Rao 1967; Vol. 5: 744). The gradual broadening of the definition of minorities and the steady widening of the scheme of representation to include new minorities was strategically designed to divide the nationalist front. However, for much of the first half of the twentieth century, this also meant satisfying the elites among the minorities. The colonial model of negotiating the politics of difference, designed to act as a balance between competing communities or interests, was a top-down power-sharing model. This model, however, continues to be an enduring feature in defining identity and ordering the politics

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of difference. As per the terms of reference of the Constituent Assembly outlined in the Cabinet Mission Plan, the pre-constitutional requirement that minorities’ interests be protected in post-British India became an effective precondition to define the nature of rights in the constitutional document. Even after the partition of British India, the prerequisite of minority protection remained in effect during constitutional deliberations. But the reality of partition was used as a political foil by the Congress, the dominant political actor in the Constituent Assembly, to mute ‘immoderate’ demands of minorities in trying to achieve national unity.

Deliberating diversity While the Cabinet Mission Plan had already guaranteed the representation of Muslims and Sikhs in the Constituent Assembly, members of the Parsi, Anglo-Indian, Indian Christian, Scheduled Caste and Scheduled Tribe groups were brought into the Assembly as representatives of the Congress Party. The Constituent Assembly came into existence on 9 December 9 1946, and for roughly three years it sat in session deliberating on the different aspects of the constitution that was finally adopted. Following the Muslim League’s initial boycott, subsequent enrolment and cessation of responsibility caused by partition and creation of Pakistan, the total membership of the Assembly and the minority communities within it kept varying. Of the initial 235 seats allotted to the provinces (barring the princely states) where indirect elections were first held to fill up the Constituent Assembly, 88 of them, or 37 percent of the total membership, were derived from the minority communities. In mirroring India’s diversity, representatives of the Nepali, Sikh, Parsi, Christian, Anglo-Indian, Backward Tribe, Muslim and Scheduled Caste communities found places in the Constituent Assembly. Keeping in view the need to ensure adequate representation to minorities, Dr. H. C. Mookerjee, an Indian Christian from Bengal, was elected the vice president of the Constituent Assembly. He also later served as chair of the Minorities sub-committee that worked under the larger structure of the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded and Partially Excluded Areas to the Constituent Assembly. Similarly, Dr. B. R. Ambedkar, the Indian untouchable leader, was entrusted with the historic responsibility of preparing the draft of the constitution in his capacity as the chairman of the Drafting Committee.

Constituent assembly: minority protections The overall philosophy of the constitution was contained in the Objectives Resolution, moved by Jawaharlal Nehru on the floor of the Constituent

Constitutionalizing rights, negotiating difference 65 Assembly on the fourth day of its first session. Among its objectives, Clause (6) of the Resolution reiterated that ‘adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes’ (Shiva Rao 1967; Vol. 2: 4). Realizing the need to deliberate upon the minorities question, Govind Ballav Pant moved for a resolution to set up an Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded and Partially Excluded Areas on the floor of the Assembly on 24 January 1947. He argued: The question of minorities everywhere looms large in constitutional discussions. Many a constitution has foundered on this rock. A satisfactory solution of questions pertaining to minorities will ensure the health, vitality and strength of the free state of India that will come into existence as a result of our discussions here. The question of minorities cannot possibly be overrated. It has been used so far for creating strife, distrust and cleavage between the different sections of the Indian Nation. Imperialism thrives on such strife. It is interested in fomenting such tendencies. So far, the minorities have been incited and have been influenced in a manner that has hampered the growth of cohesion and unity. But now it is necessary that a new chapter should start and we should all realize our responsibility. Unless the minorities are fully satisfied, we cannot make any progress: we cannot even maintain peace in an undisturbed manner. (CAD, Vol. 2: 310–311) For much of the deliberations that took place on the floor of the Constituent Assembly, during various stages in the meetings of its different committees and sub-committees, the issue of what constitutes the rights and protections of minorities was weighed against the demands of national unity. It is interesting to observe that the fear of balkanization loomed heavily in the minds of the founders, especially those representing the Congress party, and accordingly a necessity was felt to justify granting of any rights and protections to minorities in accordance with, and in particular consideration to, its possible impact on the unity and integrity of the nation. If the threat of balkanization created caution in the minds of the Congress leaders, the lure of a common citizenship as a way out of the impasse held out an alternative workable aspiration. This aspiration would also foster common bonds and nationalist sentiments among Indians irrespective of community differences. It had held irresistible appeal back in 1931 when the Congress in its Karachi session had adopted a resolution on fundamental rights applicable to all citizens, majority and minority alike. Underlying the Congress-sponsored views and provisions on common fundamental

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rights was a central uniting strand of protection against discrimination, notwithstanding group differences among citizens. ‘The minorities for their part’, Retzlaff appropriately notes, ‘regarded this [i.e., mere protection against discrimination] as insufficient, and demanded additional constitutional safeguards, as well as other special arrangements in such things as employment in the public services’ (Retzlaff 1963: 60). To fulfil the aspirations of the minorities and in accordance with the Cabinet Mission Plan’s stipulations, the Advisory Committee of the Constituent Assembly set up the Minority Rights Sub-committee on 27 February 1947. The sub-committee set itself the task of formulating responses individually and collectively to a set of questions that K. M. Munshi had prepared. Munshi’s questionnaire asked: 1 2

What should be the nature and scope of the safeguards for a minority in the new constitution? What should be the political safeguards for a minority (a) in the Centre; (b) in the Provinces?

3

What should be the economic safeguards for a minority (a) in the Centre; (b) in the Provinces?

4 5 6

What should be the religious, educational and cultural safeguards for a minority? What machinery should be set-up to ensure that the safeguards are effective? How is it proposed that the safeguards should be eliminated, in what time and under what circumstances?

Partly as a response to this questionnaire and the deliberations in the Minority Rights sub-committee and the floor of the Constituent Assembly, members’ views on rights of minorities were divergent. The divergence can be traced as a model of intersecting axes (Figure 2.1) between two views of citizenship: the common citizenship model that takes the individual as the unit of the political community and the group-differentiated position that approves protections and rights for communities. Responses to Munshi’s questionnaire depended on which minority one was speaking for. For those who spoke from the lower-caste perspective, the emphasis was on non-discrimination and a strong version of legal and political equality among citizens. It was also not uncommon for representatives of untouchables to align their political voices in favour of an

Constitutionalizing rights, negotiating difference 67 Special rights for minories

Non-discriminaon

social reform (Caste and gender)

Cultural and educaonal rights

Polical (Representaon) rights of minories

Basis of cizenship: community

Basis of cizenship: individual

Figure 2.1 Mapping divergence in founders’ attitudes towards citizenship

egalitarian but well-integrated and assimilated society. However, in terms of what it requires to be politically equal, such a perspective marshalled support for special representation rights of untouchables. To those who expressed views on behalf of religious and cultural communities, the choice was clear: to desire both cultural autonomy and political rights of representation. Following the colonial model, and encouraged by the Cabinet Mission’s promises of using minority rights as some sort of constitutional trump card even before actual deliberations on the constitution took place, all the minorities, with the exception of the Parsis, found a common meeting ground in demanding separate representation rights as a necessary political safeguard in post-Independence India (denoted by the intersection of the axes in Figure 2.1). The idea that the principle of representation should be sociologically based, or descriptive in nature, mirroring the diversity of the population,

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found favour with most members representing minorities throughout the deliberations. Rajkumari Amrit Kaur, a member of the sub-committee, was one among few exceptions who advanced a crude form of Burkean virtual representation as a remedy to the conundrum of the more popular descriptive representation.9 In April 1947, the Minority Rights sub-committee decided first of all to consider the Fundamental Rights Sub-committee report in detail to ascertain whether any of its recommended provisions required amplification or alteration for the specific purpose of safeguarding minority rights. Having examined the interim proposals of the Report of the Fundamental Rights sub-committee from the minorities’ point of view, it recommended: • • • • • • • •

reservation of public offices for the classes that were not adequately represented in government services; freedom to ‘practise’ and ‘propagate’ as well as to profess religion; education through one’s mother tongue and script; protection of the language, script and culture of minority groups; free admission of all the minorities in the state-funded schools and other educational institutions; equal state funding to the institutions of minorities; abolition of discrimination in places of public use; and restriction of the right of residence and possession of land in tribal areas.

A few days later the sub-committee met to consider the political safeguards of the minorities, and the issues identified for further deliberation were of four types: 1 2 3 4

representation in the legislatures; joint vs. separate electorates and weightage; reservation of seats in the Cabinets; reservation in public services; and administrative machinery to ensure protection of minority rights partly covered by making certain fundamental rights justiciable. (Shiva Rao 1967; Vol. 2: 392)

Working on the agenda, the sub-committee could not muster unanimity on any one item listed. In partisan voting, where views differed from one item to another, the working group voted by a majority to do away with the colonial scheme of separate electorates but chose to retain a common scheme of reserved seats in joint electorates for all sizeable minorities for a period of 10 years. Similarly, in relation to item no. 2, the group voted to do away with

Constitutionalizing rights, negotiating difference 69 reservation of seats for minorities in the Cabinet. On item 3, that is, reservations in services, or affirmative action quotas, the sub-committee voted to ensure quotas for Scheduled Castes, Muslims, Sikhs, Plain tribes in Assam and Anglo-Indians. The Parsis and the Indian Christians did not claim any quotas. On item 4, two proposals were accepted: (1) An independent officer appointed by the executive reporting to the legislature about the working of the safeguards provided for the minorities, and (2) a statutory commission to investigate into the conditions of the socially and educationally backward classes and reporting remedial measures (Shiva Rao 1967; Vol. 2: 396–400). However, when deliberating over the specific recommendations of the Minority Rights sub-committee, the Advisory Committee, to which the sub-committee report was submitted, held the view that some proposals needed to be rejected on the grounds that rigid constitutional provisions would make parliamentary democracy unworkable and that it was important to harmonize the special claims of minorities with the development of a healthy national life (Shiva Rao 1967; Vol. 2: 416–417). In the immediate aftermath of the country’s partition, the reports of the Advisory Committee on minority rights were placed before the Constituent Assembly. Sardar Vallabhbhai Patel, a prominent Congress leader and president of the Advisory Committee, tabled the Report on Minority Rights, as it came to be called. While fully conscious of the tragic and violent post-partition political environment surrounding the nation and mass migrations triggered between India and Pakistan, Patel stressed how the agreement surrounding the document was arrived at in a consensual manner between the minorities and the majority. Responding to a few minority members’ concerns and amendment motions that sought to reclaim separate electorates for Muslims, Patel, mindful of the majority support in the Assembly and the members’ strong nationalist sentiments, rejected it on the grounds of national unity. A representation system that entrenched minority constituencies would, in his opinion, pave the way for another Pakistan, or further division of the country. Barring the discussions on joint versus separate electorates, the Assembly adopted the Report without any alterations, and the latter was incorporated into the Draft Constitution presented to the Assembly much later. Steering a middle course between strong entrenchment of minority rights and the equally crucial task of acknowledging the majority interests, Ambedkar reasoned that a lot of the safeguards for minorities depended for their success on the goodwill and the sense of duty among the majority community to not discriminate against minorities. Ambedkar asserted: [T]he Constituent Assembly has done wisely in providing such safeguards for minorities as it has done. In this country both the minorities

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Ashok Acharya and the majorities have followed a wrong path. It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose. It must recognize the existence of minorities to start with. It must also be such that it will enable majorities and minorities to merge some day into one . . . [Minorities in India] have loyally accepted the rule of the majority which is basically a communal majority and not a political majority. It is for the majority to realize its duty not to discriminate against minorities. . . . The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish. (CAD, Vol. 7: 39)

In the fast-changing political landscape of a partitioned India, however, the growing divide between the majority and the minority communities fuelled by Mahatma Gandhi’s assassination in 1948 led to a growing intolerance towards political safeguards for minorities. The Congress reflected the changed mood of the nation in the Assembly. Between the seventh session of the Assembly in November 1948 and the conclusion of constitutionmaking in November 1949, several debates within the Assembly and the Advisory Committee led towards a gradual process of whittling down the political safeguards of the minorities. Although the provision of separate electorates for minorities was done away with, it figured in the discussions of the House during deliberations on the draft constitution. When the majority in the House vehemently rejected this, the idea of proportional representation was also brought up for discussion by representatives of the Sikh and the Muslim communities.10 The Congress did not see any difference between the demands for separate electorates and proportional representation, and the latter too was rejected on grounds that it would have a divisive impact on the polity with the potential to balkanize the nation further.11 Of the three choices for minority political safeguards – separate electorates, proportional representation and joint electorates with reserved seats – it was the third one that applied uniformly to all minorities and was part of the Minority Rights sub-committee recommendations to the Assembly. But even this provision was withdrawn by the Advisory Committee for minorities other than the Scheduled Castes, which now included lower castes from the Sikh community, and Tribes. In a new report submitted to the Assembly on 11 May 1949, Sardar Patel remarked that under vastly changed circumstances it was no longer appropriate . . . that there should be reservation of seats for Muslims, Christians, Sikhs or any other religious minority. Although

Constitutionalizing rights, negotiating difference 71 the abolition of separate electorates had removed much of the poison from the body politic, the reservation of seats for religious communities, it was felt, did lead to a certain degree of separatism and was to that extent contrary to the conception of a secular democratic state. (Shiva Rao 1967; Vol. 4: 600) Later, the same principle was applied to reservations of jobs; except for the Scheduled Castes and Tribes, every other minority community during the conclusion of the constitution-making was excluded from this other important safeguard. In a nutshell, then, with regard to representation rights of minorities, or the political safeguards, a gradual process of attenuation marked the constitutional deliberations. From an initial consideration of caste-, tribe- and religion-based minorities, special representation rights (of reserved seats in joint electorates) were granted only to Scheduled Caste and Scheduled Tribe communities with an added provision to nominate two members from the Anglo-Indian community to the popular house (Lok Sabha) in the Indian parliament. In denying special representation rights to religious minorities, the founders used the argument of national unity and nationbuilding. The same model applied to the reservations of jobs, too, with the slight modification, in this case, of allowing lower-caste members of the Sikh community inclusion in the Scheduled Caste list. In a definite but partial break from the colonial model, the Indian constitution considered it useful and necessary to recognize caste and tribal identities for special representation and affirmative action (job reservations by way of quotas) rights on a temporary basis, to be renewed every 10 years. It is also useful to recapitulate here that in the making of the Indian constitution, there were differences of opinion between representatives of different communities on who deserves rights of representation and affirmative action. The final outcome of the deliberations suggests anything but complete unanimity, although by some stretch of logic one may claim arithmetical consensus as a way of resolving the issue of minority representation. However, while Granville Austin, the Indian constitutional guru, waxes eloquent on the quintessential Indian virtue of consensus displayed in the deliberative process (Austin 1966: 311–317), he also admits to the pressures exerted on religious minorities by Congress leaders, especially Sardar Patel, to relinquish colonial privileges12 (Austin 1966: 151).

Cultural rights If a departure from the colonial model was made in the case of representation rights, such a departure or break from the tradition did not inform

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the founders during deliberations on the appropriate religious, educational and cultural safeguards for minorities. Although the safeguards contemplated by the Minority Rights sub-committee and the larger Constituent Assembly included a vast array of subjects for consideration and discussion, the essential issues revolved around how identity-bearing individuals and groups needed recognition. Some protections and safeguards pertained to clarifying the meaning, implication and amplification of fundamental rights that all citizens would enjoy at an individual level. These covered areas were commonly grouped together under the categories of freedom of religion, which aroused highly interesting debates on certain religious practices such as sati, Devadasi (dedication of girls to temples), child marriage and on the ever-more-contentious issues of the freedom to propagate religion and religious instruction in educational institutions. In different ways these issues brought to the fore questions about the role of the secular Indian state, especially about its responsibility for taking appropriate initiatives to trigger social reform in community practices and questions about the public–private distinction. To the question of how the state would maintain its relationship with religion, the common overwhelming approach was that the state would be secular, which in the Indian case meant that there would be no state religion, but the state would allow religious freedom, including the right to practise and propagate religion. Indian secularism, a feature implicit in the original document but made explicit by way of an amendment to the Preamble by the 42nd Constitutional Amendment Act, 1974, was never contemplated to approximate the American model of the wall of separation between the church and state. The secular state, most founders concurred, was to allow room for both neutral involvement and pursuing a policy of equidistance between religions. Some involvement in religion was considered necessary for a progressive welfare state that sought appropriate legal reforms. What exactly these reforms would mean and how precisely the state would involve itself in cultural or religious matters was never specified in detail, but the state received ample scope within a democratic governance model to act as it deemed necessary. As a general policy this approach was both compatible with democracy and protective of religious freedom. In terms of how the question of one’s cultural or religious identity affected one’s status as a citizen, the major divide in the Assembly and the pertinent committees, focused on the question of who was a legitimate bearer of rights in the newly formed political community – the individual or the group – and how this would shape other protections guaranteed to minorities. For example, during discussions in the meetings of the Fundamental Rights sub-committee, there was a disagreement about what a right to practise religion meant which separated those who believed that

Constitutionalizing rights, negotiating difference 73 the constitution need only spell out a few broad non-discrimination principles together with a common citizenship model and those who advocated explicit constitutional recognition of the rights of cultural and religious minorities. That citizenship is granted only to individuals was the common refrain of those who were opposed to religious practices and customs such as purdah (the practice of veil common to most Muslim and some Hindu women), child marriage, polygamy, unequal laws of inheritance, prevention of intercaste marriages and Devadasi. Spearheading the cause of social reform in opposition to some of these traditional practices were women representatives such as Rajkumari Amrita Kaur and Hansa Mehta, with support from A. K. Ayyar.13 On a different plane, whether the right to religion encompasses rights of propagation has been, and still continues to be, a highly contested issue. Although the final outcome of the constitutional deliberations included the right of an organization or a group to propagate its religious tenets, the matter was put to a severe test due to the views of some members that Hinduism, unlike Islam or Christianity, did not believe in proselytization. In the Minority Rights sub-committee, M. Ruthnaswami maintained that since Islam and Christianity were essentially proselytizing religions, the purview of religious freedom should encompass the right to propagate religion (Shiva Rao 1967; Vol. 2: 201). In spite of several attempts made by Assembly members to curtail this right by seeking to prohibit certain forms of conversion and treat them as illegal, such a move was abandoned as a result of a political conciliation reached between community representatives largely as a concession to the Christian (Catholic) community. In the last 50 years, especially with a phenomenal increase of violence in recent times caused by an ascendant Hindu nationalism, the question of conversions threatens to endanger harmony between the Christian and Hindu communities. Despite legal wrangles and political controversies that impinge on the reality of religious conversions and re-conversions of lowercaste groups and tribals today, K. M. Munshi’s broad defence of the principle of conversion made on the floor of the Constituent Assembly14 is still reflective of the Indian constitution’s general approach to the issue. Of the non-discriminatory basis of the cultural and religious objects the Assembly found it useful to allow the state to intervene to throw open ‘religious institutions with a public character’ and disallow compulsory religious instruction, with reasonable exceptions, in educational institutions that are maintained or receiving aid wholly out of public funds. Long before the constitutional discussions, the subject of personal laws was a matter of prime concern to religious minorities, especially Muslims. As a cultural right or safeguard, the issue of personal laws had figured in

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successive demands made by the Muslim League and was part of even Jinnah’s 14-point demand made in 1929, cited earlier. However, the practice of religious communities having their own separate personal laws dates back to Warren Hastings’s 1772 ‘Judicial Plan’ under the East India Company’s judicial directive to its new civil courts, or diwani adalats, to ensure ‘That in all suits regarding Inheritance, Marriage, Caste and all other religious Usages or Institutions, the Laws of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos, shall be invariably adhered to’.15 For the entire duration of the colonial administration, the institution of personal laws was left completely untouched. During the nationalist movement, the Muslim League rallied around this issue and claimed it to be a core component of its distinctive identity. Deliberations on this issue in the Minority Rights and Fundamental Rights sub-committees and the Constituent Assembly evoked a great deal of heat and passion. Although Rajkumari Amrita Kaur, Hansa Mehta and Minoo Masani were insistent in demanding a uniform civil code in conformity with their strong views on common citizenship and making the individual the sole bearer of rights, many Muslim representatives in the Assembly took strong exception to this idea and even to mentioning the prospect of a uniform civil code in the non-justiciable section of the constitution. They regarded this as an infringement upon their collective right. Speaking for most religious minorities and drawing on appropriate European examples of minority accommodations, Mohd. Ismail Sahib, a Muslim representative, contended that personal laws constituted an inviolable fundamental right of religious minorities on grounds that they were an intrinsic part of their religion and culture (CAD, Vol. 7: 540–541). Different members gave different reasons for the preservation of personal laws. Mohd. Ismail Sahib defended it as the ethical choice of the community. Other Muslim members gave various reasons – historical, pragmatic, contextual and democratic – to justify the continued existence of the personal laws. All defenders agreed, however, that personal laws closely reflected the religious practices of the community. To that extent the definition of secularism was reinterpreted to mean non-religiosity, not irreligiosity or anti-religiosity. It was important to define the secular state as non-religious to make a distinction between a form and attribute of neutrality that a non-interfering secular state ought to display and the anti-religiosity of an apparent secularism that an interventionist state uses to legislate uniformity over and against distinctive ways of life. In line with this reasoning, Mahboob Ali Baig Sahib Bahadur and Hussain Imam argued that secularism should not mean having common laws but that a secular state can, and ought to, respect diverse religious practices (CAD, Vol. 7: 543–545). B. Pocker Sahib Bahadur asserted that

Constitutionalizing rights, negotiating difference 75 interference in religious practices is tantamount to tyranny. Following the well-known Millian argument, he stressed that a majority is not tyrannical if it respects the rights of the minorities. To objections based on European and American practices, Pocker Sahib responded that it did not matter how other constitutions dealt with this issue. In underscoring that constitutions differ in their approaches to accommodate diversity, Pocker Sahib accentuated the contextual foundations of constitutionalism. However, not all members who supported the idea of retaining personal laws saw a necessary correlation between protection of minority interests and state interference in religious matters. To some, especially Naziruddin Ahmed, certain interventions by the secular state could be in order and legitimate. In fact Ahmed suggested that a future uniform civil code with the consent of all concerned might look attractive under ideal conditions but claimed that pragmatism demanded continuation of the present arrangement (CAD, Vol. 7: 541). In reaction to these views, K. M. Munshi and Alladi Krishnaswami Ayyar made a case for a uniform civil code, highlighting how it remains a future democratic option that could effectively imply the consent of all communities affected by such an outcome. Munshi argued that any future civil code could not ignore the views of the minority but insisted that the idea of a civil code was not tyrannical per se. Moreover, he suggested that tyranny could take other forms than an imposed secularism or a uniform civil code. For instance, he pointed out, Khojas and Cutchi Memons, despite being Muslim communities, had largely followed Hindu practices in relation to personal laws until they were brought, against their wishes, within the ambit of Muslim personal laws. If the prospect of civil code is tyrannical to Muslims, Munshi argued, then Khojas and Cutchi Memons, minorities within a minority, already suffer from the tyranny of a personal law imposed upon them. Expanding upon this example, Ambedkar observed later that personal laws were neither immutable nor uniform throughout India, and until 1939 most of the North-Western Frontier Province (presently part of Pakistan) and many Muslims in the southern cone of the subcontinent followed respectively Hindu laws and laws that had regional moorings.16 More generally, Ambedkar suggested, It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. (CAD, Vol. 7: 545)

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Playing the familiar chords of unity, both Munshi and Ayyar argued that a uniform civil code could act as a catalyst for national unity and that rather than create a schism between the communities, it might actually help bridge communal divides (CAD, Vol. 7). The supporters and detractors of the civil code remained unconvinced of each other’s views on what brings about unity. When Mohamad Ismail Sahib had first moved an amendment to the non-justiciable provision of the Uniform Civil Code in the Directive Principles of State Policy, he had maintained that harmony is best upheld by a respect for diverse practices, not by uniform legal ‘regimentation’ (CAD, Vol. 7: 541). The question of whether or not religious instruction could be imparted in state-funded schools also led to a debate about the secular basis of the constitution. While acknowledging the fact that a secular state need not compel students to study religion, Mohd. Ismail Sahib also affirmed that it was not necessary for the secular state to ban religious instruction in public schools, especially if parents or their wards wanted religious instruction in conformity to their own religions in the public schools. Such a fact need not be construed further as a violation of the neutrality of the secular state (CAD, Vol. 7: 867). Reacting to this view and offering a narrower version of the secular state, Tajamul Husain, the most ‘liberal’ of Muslim representatives, argued against religious instruction in schools that were maintained wholly by the state (CAD, Vol. 7: 871). K. T. Shah further extended Husain’s argument to include even those schools that were partially maintained by the state’s finances. In response to these positions, Ambedkar pointed out that the draft version for this particular clause ‘strikes a mean’ whose implication was that (contrary to Ismail Sahib’s views) religious instruction could be barred in public schools but in deference to the cultural claims of religious communities, institutions operated by the communities would continue to enjoy full liberties in imparting religious education regardless of whether or not they received aid.17 Whatever the scope for public funding for religious communities, the Constituent Assembly agreed that both religious and linguistic minorities should have the right to establish educational institutions of their choice. Drawing reference to an analogous provision in the old Estonian constitution, Harnam Singh in clause 15 of his draft presentation to the subcommittee on Fundamental Rights in March 1947 had typically brought to members’ attention that Religious minorities in the country shall have a right to establish autonomous institutions for the preservation and development of their culture and to maintain special organization with powers to levy taxes for the maintenance and welfare of such institutions. (Constitutional Assembly Debates (CAD), Vol. 2: 82)

Constitutionalizing rights, negotiating difference 77 In the sub-committee on Minority Rights, M. Ruthnaswami, responding to Munshi’s questionnaire (see earlier), dwelt at length on the theme of cultural protections of minorities. Central to his arguments was the distinction he sought to make between political minorities and national or religious minorities. For political minorities that were essentially nonpermanent in nature, Ruthnaswami believed, institutional mechanisms of checks and balances, division of powers, rule of law, decentralization and federal properties would suffice (CAD, Vol. 2: 313–314). However, for national or religious minorities, such as Muslims, Sikhs, Indian Christians and Anglo-Indians, who constituted ‘permanent’ minorities, certain constitutionally entrenched rights would be in order. ‘It is as a permanent minority’, he said, ‘never able or hoping to be able to influence and carry the government of any day that they require certain rights to be asserted and safeguarded’ (CAD, Vol. 2: 314). Among his suggestions for rights of permanent national minorities were: (1) grants-in-aid to schools and educational institutions maintained by religious communities; (2) special grants towards enhancement of education of educationally backward minorities and (3) schools for minorities, where their religion and culture would be preserved and cultivated, which the government ought to maintain especially in those areas where such minorities are majorities in a demographic sense (CAD, Vol. 2: 315). Largely conforming to Ruthnaswamy’s suggestions, S. P. Mookerjee in his Memorandum on Minorities made a similar case for the educational rights of minorities to preserve their culture, language and script (CAD, Vol. 2: 337–341). As the foregoing account suggests, the justification for cultural rights varied. Founders who narrowly defined citizenship clustered rights in favour of individuals; others prioritized the needs and interests of different communities. The balance sheet is captured best by Lloyd and Susanne Rudolph’s general observation that the Indian constitution makes ‘simultaneous commitment to communities and to equal citizenship’ (1987: 38–39). What is pertinent to note in this context is how such simultaneous commitments pervade the domain of cultural rights as well. As Figure 2.1 illustrates, such simultaneous commitments are to be best understood as reflecting conflicting perspectives of founders on the sources of citizenship. As a result of a series of compromises made between the members of the Constituent Assembly, political safeguards for minorities, i.e., representation rights and promises of state-mandated reservation policies, were confined only to the Scheduled Castes and Tribes, while other religious, cultural and educational safeguards were extended to religious and ethnic minorities. This compromise prompts some to critique the process by which the religious minorities were deprived of their share of political safeguards.18 While the dominant role of the Congress in the Assembly, the changing political realities and compulsions, and the newly discovered accent and rhetoric of

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national unity all help to explain the lack of support for political rights of religious minorities, the constitutional model that ultimately evolved also jettisoned the colonial model on principled grounds. Committing themselves to a new beginning and a new chapter, the founders rejected the topdown model of elite power sharing between communities that had shaped colonial policies.

Identity and rights in the Indian Constitution Considered to be the longest written constitution in the world, with features and principles compatible with Indian thought but ‘nevertheless almost entirely of non-Indian origin’, the constitution was, as Granville Austin notes, ‘perhaps the greatest political venture since that originated in Philadelphia in 1787’ (Austin 1966: 308). India’s age-old civilization and modern democratic political institutions were never thought to be working at cross-purposes. Indeed, it was the constitution itself, more than anything else, which honed diverse social aspirations to a refurbished and fine-tuned Westminster-style representative form of government. The underlying Indian mantra that achieved this in large measure was ‘Unity in Diversity’. As ‘the charter of Indian unity’, the constitution is all encompassing in providing a wide institutional and normative framework within which questions of diversity have been, and continue to be, negotiated and accommodated.19 The constitution responds to issues of identity and difference with varied nuances of equality. The Fundamental Rights of the constitution, contained in Part III, are complemented by principles of social legislation in Part IV called the Directive Principles of Social Policy. Together these two account for the egalitarian mode that the liberal democratic system of India aspires to achieve in relation to both individuals and groups. Depending on the context, equal treatment carries varying connotations. Originally, the constitution guaranteed seven sets of justiciable rights: Right of Equality, Right of Freedom, Right Against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, Right to Property and the Right to Constitutional Remedies.20 In general, all these ‘Rights lay down that the state is to deny no one equality before law’ (Austin 1966: 51). The Directive Principles, on the other hand, are non-justiciable but lay down parameters and goals for future legislation. The principles are broadly culled from Gandhian precepts and socialist values; in sum, a charter intended for social progress. If some of the rights in the constitution reflected formal equality, a major part of the Directive Principles gave concrete shape to substantive equality. But the Principles, some of which bore a distinctively Indian and Gandhian essence, also pointed towards a higher good, the telos of an ethical-cum-socialist communitarianism. However, the

Constitutionalizing rights, negotiating difference 79 fundamental rights in the constitution do also balance considerations of formal or difference-blind equality on the one hand and considerations of substantive equality informed by sensitivities to group differences on the other. Articles 14 through 16 contain different expressions of the right to equality and equal protection of laws. Although the said articles contain the crux of formal equality considered important to do away with caste-, gender- and religion-based social discrimination, they are circumscribed by provisions of state-mandated affirmative action for disadvantaged groups. Article 17, making a direct reference to the ritual and social discrimination of the ‘untouchable’ castes, seeks to abolish the practice of untouchability. By widespread opinion Articles 29 and 30 – introduced together as Cultural and Educational Rights in the chapter on Fundamental Rights – are the crux of special rights for minorities. Titled ‘Protection of interests of minorities’, Article 29 (1) states: ‘Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same’. Article 30 on Right of minorities to establish and administer educational institutions categorically emphasizes: ‘All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice’. Clause 2 of the same reads: ‘The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language’. Although both the Articles protect the special interests of minorities, Article 29 can also be extended to apply to other communities, including the majority community, as well. As Massey (1999) argues, although Article 29 provides ‘protection to the interests of minorities, it does not refer specifically to the minorities whose numerical strength is less’. In referring to ‘any section of the citizens’, who may have a distinct language, script or culture, it may effectively ‘belong even to the majority community’. As an example, Massey critically observes that even ‘members of the Hindu community living in Punjab or Nagaland will receive protection for their linguistic or cultural rights, by virtue of being “so-called minorities” in these States’ (Massey 1999: 83). By common consent, however, both these articles stipulate respect for the religious and cultural autonomy of the minorities. The recognition of the minorities’ cultural autonomy is justified on grounds of equality, as evidenced in Justice Khanna’s observation in The Ahmedabad St. Xavier’s College Society v. State of Gujarat, 1974: The idea of giving some special rights to the minorities is not to have a kind of privileged or pampered section of the population, but to give

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However, Article 44 in the Directive Principles of State Policy stands in tension with the cultural autonomy of religious minorities with regard to personal laws. In conformity to the idea of common citizenship, it relates to the provision of a uniform civil code or secular law for citizens cutting across religious boundaries. A controversial stipulation, it enjoins upon the state to try to ‘secure for the citizens a uniform civil code throughout the territory of India’. In Part XVII (Arts. 343–351) the constitution dwells upon the status of languages and provisions for linguistic minorities. While Article 347 creates a special proviso for official recognition of a language spoken by a section of the population throughout or in any part of a state or province, Article 350A stipulates that the state shall endeavour ‘to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups’.

Multicultural constitutionalism The constitution of independent India is paradoxically both a deviation from, and a derivation of, the colonial model. It rejects explicitly the policy of balance between groups and avoids a full-fledged microcosmic view of representation21 in legislatures and services. However, like the colonial model, it retains some aspects of the principle of microcosmic representation, or group representation in the form of quotas, especially for the Scheduled Castes and Tribes, and by symbolic extension to the AngloIndian community. One of the major thrusts of disparity between the colonial and post-colonial constitutional systems, however, lies in how the latter model treats difference. Equal treatment in the post-colonial constitution required that dissimilar forms of difference be differently treated. In other words, caste and tribal differences, according to the founders, merited special representation rights, whereas religious and linguistic differences

Constitutionalizing rights, negotiating difference 81 acquired cultural and educational autonomy. Cutting across this dichotomy, however, were territorial self-government rights for tribes and linguistic groups and a special status for Kashmir in an asymmetrical federal association. As the foregoing discussion on the constitution-making process in the late 1940s amply demonstrates, it is clear how religious minorities were outvoted on the question of political safeguards, a synonym for special representation rights. From the perspective of religious minorities, cultural and educational autonomy granted to religious groups, of which personal laws was an important facet, was a second-best outcome of the deliberative process, especially for Muslims, who lost a privileged position in the transition to post-independence situation. The final outcome in the constitution regarding provisions for different groups almost exhausts the taxonomical list on cultural rights prepared by Jacob T. Levy (1997) where each category of cultural right-claims constitutes a cluster of entitlements backed by sameness of normative logic and policy response across contexts. Levy’s list includes: exemptions from laws (freedom of religion exempts, for instance, some persons from singing the national anthem);22 assistance or affirmative action (for Scheduled Castes and Scheduled Tribes); self-government rights for minorities (in Kashmir, tribal states and autonomous district councils); external rules restricting non-members’ liberty (respecting land rights of Kashmiris and tribal communities in the North-East); internal rules for members’ conduct enforced by the community (followed non-formally; not constitutionally approved); recognition/enforcement of traditional legal code (personal laws for Muslims, Christians, Parsis and Hindus); representation of minorities (of SCs, STs and Anglo-Indians); symbolic claims to acknowledge the worth or status of various groups (best exemplified by a comprehensive national holidays calendar that includes significant days considered holy by almost all religions). As a compendium of various difference-sensitive rights that coexist with a common citizenship model, India’s constitution anticipates much of what gets discussed today under the broad contours of multiculturalism in contemporary liberalism. It will be interesting to observe that most of the claims made by the minorities in India during constitutional deliberations were made in the absence of a common citizenship model. By contrast, in most liberal democracies today where common citizenship rights already exist, group claims are made in the public sphere, or, in other words, against the broader community. The Indian situation is not unique but informs the constitutional process in many post-colonial multi-ethnic societies. But the deliberative outcome in the Indian case resulted also from the atypical and unusual precondition that trumped the case of minorities

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even before discussions could take place. To say that there was no Rawlsian ‘veil of ignorance’ would be an understatement. But as Yash Ghai (2000) astutely observes, it matters when the constitution is framed and whether or not the time is ‘ripe’ for building a presumption of ‘universality’ into the negotiating process. ‘At the time of the Indian independence’, Ghai recognizes, ‘there was no internationally accepted body of norms or procedures. Nor was there a consensus that constitutions had to include a bill of rights’23 (Ghai 2000: 1135). Although the American Bill of Rights was a tempting exemplar for many founders, the liberal spirit that pervaded the American constitution did not find many takers in the subcontinent.24 In any case, a complete liberal individualist approach was a non-option given both the procedural and pragmatic compulsions to devise an inclusive political community. A quasiliberal spirit, one that precariously balances rights of individuals with those of communities, permeates and informs the Indian constitutional experiment. Indian constitutionalism, it will be safe to concur, is deeply embedded in a ‘thickly’ constituted multicultural society. In so far as norms of democratic justice apply, the collective rights of groups in the Indian case comprise a complex mix of institutional safeguards and normative protections designed as checks against political majoritarianism. But as a sine qua non of counter-majoritarian strategy, the constitutional entrenchment of group-specific rights in the Indian case must be periodically mandated by democratic procedures, chiefly by the political majority, to give it continued democratic legitimacy (e.g. the need to reaffirm group representation rights or reservations every 10 years). Whereas constitutional entrenchment would normally imply political insulation from ordinary legislative options and judicial protection, the constitutional founders did stake out a wide area for future legislative options in many matters of significance for minorities, which, of course, includes the case of personal laws. Paradoxical as it may sound, it was the Parliament, following the Shah Bano controversy of 1985, which restored the status quo ante in regards to personal laws after the Muslim minority felt the Supreme Court had transgressed its legitimate rights. But one needs to address whether or not, and to what degree, rights of minorities require constitutional entrenchment. In spite of recent theoretical support for various forms of multicultural accommodation of group-specific rights wherever applicable, a grey area that confronts political theorists is whether or not to acknowledge group differences in the constitution itself.25 This debate plays itself out mostly in those contexts where a strong individualist strand of rights exists but where group rights also constitute a viable political option. The dilemma is whether or not some group rights should be written into the constitution.

Constitutionalizing rights, negotiating difference 83 Many scholars influenced by postmodern affections rile against differenceblind provisions in a constitution but are equally sceptical of entrenching group-sensitive provisions. Such scepticism is sustained by two kinds of fears: (a) an entrenchment of group-specific rights in the constitutional document will ossify differences and may exacerbate group conflict and (b) that this mode, in not recognizing the constantly mutable and contingent nature of identities, will not be flexible enough to accommodate differences that will emerge in the future. Both fears are interrelated. The first fear in part is related to a genuine concern that by drawing boundaries between groups the likelihood of conflicts between them will rise rather than diminish. The second fear emerges out of a genuine concern that incorporating such group-specific rights effectively denies a level playing field to the changing matrix of group interaction and disadvantage. The first fear must falter in the face of evidence that any attempt to push a political agenda of common citizenship does usually turn out to be counterproductive, as was proved true in the aftermath of the Shah Bano Case or whenever there is a political attempt to erode the multicultural fabric of Indian society. The second objection is complex and applies more in the context of affirmative action or state support for disadvantaged groups, where what constitutes group disadvantage becomes a subject of perennial interpretation. Although this is what the constitution-makers, especially Ambedkar, also desired, recent attempts to broaden the ambit of state support for Other Backward Classes – castes that are not similarly situated with the Scheduled Castes or Scheduled Tribes in terms of accumulated structural inequalities – has not been a particularly positive constitutional interpretation by virtue of having eroded the original intentions of the founders to set aside support for the truly deserving. In a certain sense, it will be appropriate (given the inconclusiveness of creative judicial and political interpretations) to conclude that the constitutional experiment is yet to see a point of closure. However, in a world that has recently woken up to value and recognized diversity, the Indian experiment will stimulate both academics and practitioners alike interested to analyse multiculturalism in a comparative context.

Notes 1 A version of this chapter was published as ‘Constitutionalising Difference: The Indian Experiment’, 2010. In Achin Vanaik and Rajeev Bhargava (eds.), Understanding Contemporary India: Critical Perspectives. New Delhi: Orient Blackswan Ltd. 2 See Hanafin and Williams (2000). 3 See Coupland (1944: 24) citing a dispatch of 1892 from the Government of India.

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4 Separate electorates effectively meant communal representation. In such a scheme, only Muslims could elect Muslims as representatives to political offices set aside for them. The Congress and the mainstream nationalists always faulted the British for creating this institution, arguing that it paved the way for the creation of Pakistan on the basis of the two-nation theory. A joint electorate with reserved seats implies a constituency of undifferentiated electorate reserved for a particular community irrespective of its relative strength in it. 5 ‘The dividing line was so crudely drawn that it meant the splitting of the province into two communal blocs – the one in which the Hindus were in a majority and the other in which the Muslims predominated’. See Menon (1957: 6). 6 The then Viceroy of India, Lord Minto, recommended to the Secretary of State in October 1908 that the Muslims should be granted separate electorates. While making this case he argued: ‘The Indian Muhamaddans are much more than a religious body. They form in fact an absolutely separate community, distinct by marriage, food and custom, and claiming in many cases to belong to a race different from the Hindus’. Quoted in Menon (1957: 10). 7 One of the innovations of the Communal Award related to the idea of weightage, a principle by which the various minority communities granted separate electorates were given representation greater than they would normally have received on the basis of their numerical strength. For instance, although the Muslim community, according to the 1931 census, represented 7.9 percent of the population of Madras, it was granted 13.5 percent of the seats in the Madras Provincial Legislative Assembly. See Retzlaff (1960: 24). 8 ‘The Poona Pact provided 148 seats for untouchables, instead of the 78 separately elected members given by the Communal Award. It also provided a system of primary elections for those reserved seats; a panel of four seats was to be chosen by electors from the Depressed Classes’ (Galanter 1984: 32). 9 In response to Munshi’s questionnaire, Kaur reasoned against political safeguards of minorities. Requiring the minorities to repose trust in the majority community, she argued: ‘Axiomatically there is no reason why the interests of any individual or community should not be safe in the hands of a good person or persons, irrespective of their personal religion’ (Shiva Rao 1967; Vol. 2: 310–311). 10 Sardar Hukam Singh’s deliberation. CAD Vol. VII, 32: 1250. Both the Muslim League and the Sikh Panthic Party were, however, divided, fragmented and demoralized, resulting in a weakening of this demand. See Retzlaff (1963). 11 In rejecting alternative electoral systems, Rubinoff (1990) argues how the Congress rigged the electoral system in the Constituent Assembly to achieve a majoritarian FPTP system that would benefit them in national elections. 12 For an implication that Patel may have used an arm-twisting approach to secure this outcome, see Chaube (1973). In the same vein, however, Austin acknowledges the possibilities of the division in the ranks of Muslims, similar to what Retzlaff (1963) notes in another context, together with the motive of sacrifice in order to attract fair treatment from Hindus, as reasons for an increased moderation in the demands of religious minorities that eventually paved the way for an alteration in the colonial model of representation (1963: 151).

Constitutionalizing rights, negotiating difference 85 13 See the minutes of the Sub-Committee on Fundamental Rights meetings of February–April, 1947, in Shiva Rao (1967; Vol. 2: 65–198). 14 In spite of his attempts to specify particular methods of conversion – force, fraud and those involving children – as illegal, Munshi asserted, ‘So long as religion is religion, conversion by free exercise of the conscience has to be recognized’ (CAD, Vol. 7: 837). 15 Cited in Dieter Conrad (1995: 306). 16 The latter reference was to Marumakkathayam law, a matriarchal law that applied to both Hindus and Muslims, in North Malabar in southern India. 17 In regard to such privately managed community schools, Ambedkar’s position was: ‘The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in-aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a further qualification, that while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the giving of such instruction, it shall not give instruction to, or make it compulsory upon, the children belonging to other communities unless and until they obtain the consent of the parents of those children’ (CAD, Vol. 7: 883). 18 Notably Retzlaff (1963), Chaube (1973), Ansari (1999) and Chiriyankandath (1999). For a recent account, see Bajpai (2000). 19 As Austin observes, ‘Within its limits are held the negotiations over the working of the federal system. The realignment of state boundaries on linguistic lines was done within its definition of Indian nationalism. The question of the Official Language has been debated in Parliament within the framework of a compromise designed to preserve national unity. The constitution has established the accepted norms of “national” behaviour’ (Austin 1966: 309). 20 Of these, the guarantee of the right to property was deleted by the Constitution (Forty-Fourth Amendment) Act in 1978. Removed from the ambit of fundamental rights, the only protection such a right has now is contained in Article 300-A, which provides that ‘no person shall be deprived of his property save by authority of law’. The remaining six Rights, contained in various articles of Part III, are justiciable. 21 Although a microcosmic view of representation closely resembles proportional representation, the sense in which it is used here suggests a rough and functional principle of proportionality attained through majoritarian representative institutions that through quotas in legislative constituencies circumscribes outcomes. 22 See Sorabjee (1990: 106). 23 By the 1990s, however, Ghai goes on to argue, there are both a substantial body of norms and consensus that favours inclusion of a bill of rights in national constitutional systems, a trait that affects the Fijian constitution of 1995 and explains the difference of approach in the Canadian context between the Bill of Rights of 1960 and the 1982 Charter (Ghai 2000: 1135). In a comparative study of a few deeply divided societies – India, Canada, South Africa and Fiji – Ghai more generally concludes that a framework of rights provides a flexible and successful way of ‘mediating competing ethnic and cultural claims’ (Ghai 2000: 1099).

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24 This was at the heyday of the unparalleled significance and uncritical acceptance of the American constitutional model, especially the Bill of Rights. But, as Robert Vipond (1999: 177) notes, ‘The American model travels less well now, even though there has been something of a renaissance in comparative constitutional studies’. The declining significance of the American model, it needs pointing out by way of qualifying Vipond’s observations, is because of a renaissance in comparative constitutionalism, which now finds the American model as one amongst many standards. For helpful comparisons between the Indian and American models, see Sorabjee (1990) and Jacobsohn (1996). 25 See Kymlicka (1995). Compare McDonald (1997).

Bibliography Ansari, Iqbal A. 1999. ‘Minorities and the Politics of Constitution Making in India’, in D. L. Sheth and Gurpreet Mahajan (eds.), Minority Identities and the Nation-State, pp. 113–137. New Delhi: Oxford University Press. Austin, Granville. 1966. The Indian Constitution: Cornerstone of a Nation. Oxford, UK: Clarendon Press. Bajpai, Rochana. 2000. ‘Constituent Assembly Debates and Minority Rights’, Economic and Political Weekly, May 27: 1837–1845. Chaube, Shibanikinkar. 1973. Constituent Assembly of India: Springboard of Revolution. New Delhi: People’s Publishing House. Chiriyankandath, James. 1999. ‘Constitutional Predilections’, Seminar, 484: 50–55. Conrad, Dieter. 1995. ‘The Personal Law Question and Hindu Nationalism’, in Vasudha Dalmia and Heinrich von Stietencron (eds.), Representing Hinduism: The Construction of Religious Traditions and National Identity, pp. 306–337. New Delhi: Sage Publications. Constituent Assembly Debates (CAD). 1967. 1–12 Vols. New Delhi: Lok Sabha Secretariat. Coupland, Reginald. 1944. The Indian Problem: Report on the Constitutional Problem in India. New York: Oxford University Press. Galanter, Marc. 1984 [pb 1991 with new preface]. Competing Equalities: Law and the Backward Classes in India. New Delhi: Oxford University Press. Ghai, Yash. 2000. ‘Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims’, Cardozo Law Review, 21: 1095–1140. Hanafin, Patrick J. and Melissa S. Williams. 2000. ‘Introduction’, in Patrick J. Hanafin and Melissa S. Williams (eds.), Identity, Rights and Constitutional Transformation. Aldershot: Ashgate. Jacobsohn, Gary Jeffrey. 1996. ‘Three Modes of Secular Constitutional Development: India, Israel, and the United States’, Studies in American Political Development, 10(1): 1–68. Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford, UK: Oxford University Press. Levy, Jacob T. 1997. ‘Classifying Cultural Rights’, in Ian Shapiro and Will Kymlicka (eds.), Ethnicity and Group Rights: Nomos XXXIX, pp. 22–66. New York: New York University Press.

Constitutionalizing rights, negotiating difference 87 Massey, James. 1999. Minorities in a Democracy: The Indian Experience. New Delhi: Manohar. McDonald, Leighton. 1997. ‘Regrouping in Defence of Minority Rights: Kymlicka’s Multicultural Citizenship’, Osgoode Hall Law Journal, 34(2): 291–319. Menon, Vapal Pangunni. 1957. The Transfer of Power in India. Princeton, NJ: Princeton University Press. Retzlaff, Ralph H. 1960. The Constituent Assembly of India and the Problem of Indian Unity. Unpublished PhD Dissertation, Cornell University. Retzlaff, Ralph H. 1963. ‘The Problem of Communal Minorities in the Drafting of the Indian Constitution’, in R. N. Spann (ed.), Constitutionalism in Asia, pp. 55–73. New York: Asia Publishing House. Rubinoff, Arthur. 1990. ‘India’s Electoral System as a Determinant of Its Party System’, in Rajendra Vora (ed.), State and Society in India, pp. 95–110. New Delhi: Chanakya Publications. Rudolph, Lloyd I. and Susanne Hoeber Rudolph. 1987. In Pursuit of Lakshmi: The Political Economy of the Indian State. Chicago: University of Chicago Press. Shiva Rao, B. (ed.). 1967. The Framing of India’s Constitution: Select Documents 5 Vols. New Delhi: Indian Institute of Public Administration. Sorabjee, Soli J. 1990. ‘Equality in the United States and India’, in Louis Henkin and Albert J. Rosenthal (eds.), Constitutionalism and Rights: The Influence of the United States Constitution Abroad, pp. 94–124. New York: Columbia University Press. Vipond, Robert. 1999. ‘Constitutionalism as a Form of Conflict Resolution’, in Patrick J. Hanafin and Melissa S. Williams (eds.), Identity, Rights and Constitutional Transformation, pp. 172–185. Aldershot: Ashgate.

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Gender, rights and the justice gap Going beyond the politics of difference Vidhu Verma

The contemporary doctrine of universal and inalienable rights is one of the greatest cultural and political contributions that the modern intellectual and cultural outlook has bequeathed to political theory. Very generally rights are understood as emerging from the enlightenment epoch that gave birth to the idea of autonomous and independent wills of human beings. The popularity of rights is linked to the natural rights tradition but much more in the way they challenge arbitrary government power. They are of universal applicability and are different from duties limited to particular jurisdictions. While positive rights grant people the ability to perform some action, negative rights entitle people to demand that others refrain from some. Despite providing an emancipatory vocabulary and institutional machinery to judge governments and their respect for people, a sustained critique has developed on several grounds. They are Eurocentric and seen as displaying several different kinds of values which mark the cultural boundaries between the East and West. In our incapacity to find the terms that enable us to make their universalist claims intelligible to everyone in the same way lies their ambivalence. It is because of their provenance as a ‘child of modernity’ that rights face such a theoretical crisis today. Like modernity in general, which is no longer identified exclusively with the Enlightenment but also colonialism, rights doctrine overreaches itself given the existing norms in many cultures (Beitz 2009). Feminist theories, in particular, argue that rights are masculinist or do not sufficiently take into account the degradation and violation of women in the family and by the state (O’Neill 2000a). This chapter is a critical reading of some of these critiques with special focus on global feminists, transnational feminists and state feminists on rights with reference to India. In order for the rights discourse to be relevant to feminist theories it must at any given time be linked to the legal system and other peoples’ movements within the nation state that implements and enforces fundamental rights. I consider two major challenges in the Indian context from a governance feminism

Gender, rights and the justice gap 89 and intersectional approach. This essay concludes by proposing that feminist theory should account for how women’s oppression and resistance in their historically situated intersections of caste, class and religion help or hinder broader rights realization and not trying to fit a feminist theory of rights within global frameworks.

Gender equality and non-discrimination Over the past six decades, the Indian government and judiciary have acted against sex discrimination, taken on an international commitment to the gender equality agenda and created many gender equality mechanisms like the National Commission for Women. It possesses a favourable legal framework, the result of mobilizational and organizational autonomy of the feminist movement that took place in the 1970s. Since then the feminist movement has intervened in issues related to rights violations, sexuality, individual freedom, equal wages, security, representation and health. However, rights-related anxieties have been there for ‘upholding existing power relations’ or for being ‘formal and empty of emancipatory content’ (Madhok 2013: 21). For a long time, inquiry into rights for women centred on the issues related to conceptualization and application for advancing gender equality and principles of non-discrimination. When women asked for equal status to men as right holders at the workplace, they had to challenge simplistic notions of equality with sameness. They had to assert that the pursuit of equality so central to formalistic liberalism had to extend to treating people differently. Legal equality, an abstract notion that applies to all persons, assumes a neutral law that precludes discrimination of any sort. For women to assert claims of inequality it had to be proven that they were in similar circumstances to men but were treated unfairly because they were women.1 Gender-neutral policies view male lives as the norm (as defined by uninterrupted work) but disadvantage women, as the structure of the workplace assumes that workers are free of caregiving responsibilities. Subsequently, feminist theorists reject women as naturally different from men and define women as a distinct social group with its own socially defined characteristics. In her study, Iris Young argues that a democratic republic, to counter bias, must work for the effective ‘recognition and representation of the distinct voices and perspectives of those of its constituent groups that are oppressed or disadvantaged’ (Young 1990: 184). A positive sense of difference by oppressed groups and a principle of special rights for them would de-stigmatize such groups. Judith Butler, however, argued that ‘woman’ as a status was inscribed into a patriarchal hetero-normative system, and using it as an identity for mobilization was inherently flawed.

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Since the equality/difference debate, the struggle to develop feminist theories that embody methodological commitments along with a commitment to praxis has been evident. Throughout the twentieth century, feminist arguments for women’s rights depended upon the traditionmodernity discourse contrasting patriarchal cultures of the east with the gender egalitarianism of the West. Katherine Mayo’s book on India raised the issue of child marriage and its abuses. Most of her arguments find the abuses in the backwardness of colonized people (Sinha 2000). While ignoring local women’s responses and liberation campaigns against such abuse, she stereotyped the Third World woman who continues to shape Anglo-Saxon writings. In the 1980s, Mohanty questioned these stereotypes when she argued that Western feminist scholars adopted an ethnocentric perspective while studying ‘third world women’ (Mohanty 1997: 333). She wrote how the ‘Third World Woman’ was created as a ‘singular monolithic subject’ in some Western feminist texts. This perspective led to several epistemic inconsistencies in understanding non-English speaking, indigenous, immigrant, lesbian, disabled and working-class women. Spivak’s article ‘Can the Subaltern Speak?’ raised the crucial question about whether women who were destitute and silent could ever speak through our academic literature and conceptualizations (1994). Drawing upon this Mohanty in a later article advocated feminism without borders, which promoted decolonization of feminism and acknowledgement of differences (2003). Such critiques have contributed to epistemic knowledge frameworks and given us important insights into hegemonic power relations. Since the 1990s, whether the issue is of refugees, migrants, sex workers, slum dwellers, trafficking etc., we know that the nation state is no longer the domain within which contestations on rights take place in an era of globalization. As a response to this theoretical failure to discuss women’s rights in ‘backward cultures’, many attempts to overcome the powerknowledge nexus of feminist cross-cultural scholarship was expressed through a new approach, namely transnational feminism. Does transnational feminism engender liberatory spaces within the present nation state? To what extent does transnational feminism signal a challenge to hegemonic Western discourse? Is it another theory that is endorsing an empty or false universality? What would a decolonial-based transnational feminism look like? Since the recent proliferation of rights and the discourse on human rights raise several complex issues, I explore the significance of rights debated within feminist theories and more specifically within transnational feminism. The chapter develops analyses that move across the theoretical, conceptual and epistemological issues thrown up by these theories. My discussion shall proceed in three parts. First, I shall present the presuppositions of global

Gender, rights and the justice gap 91 feminism and its problem with human rights. I illustrate these with representations of Third World women in the controversies on veiling and gender persecution. The pragmatic-epistemological strategy for dealing with multiple evaluative perspectives on rights generates further questions in these two cases: Is there any sense in which local evaluative positions can claim objectivity? If not, what are the reasons for privileging global perspectives on rights? I move beyond the universal human rights–versus– cultural rights dichotomy to examine the limitations of the two as they move unevenly through the local, national and international arenas (Bunting 1993). In the second section I present feminist critiques of globalization which complicate the celebration of rights in a borderless world of capital flows and unbundling of territorial sovereignty. They are a response to the extreme forms of exclusion that have taken place in the globalization process. However, transnational feminism also inspired by the post-colonial approach looks into the practices and imaginaries articulated in relation to global neo-liberal hegemony. Scholars challenge the normative foundations of some of the work done by globalization theorists in asking how gender biases and distortions have come to be accepted (Naples and Desai 2002; Mohanty 2003; Ferree and Tripp 2006: 15). I then identify distinct facets of transnational feminism that problematize the idea of a global sisterhood and question the remedies located in an institutional approach to rights within the nation state. Despite their scepticism of the nation state, I argue that there is a need for some unifying regulative idea so that we could reimagine feminism in the south and subscribe to it; this means we need to emphasize critical aspects of transnational feminism, re-examine notions of women, gender and sexuality and engage with earlier notions of shared sisterhood (social to political). Finally, we then turn to the Indian constitution and its attempts to advance the idea of citizenship beyond distinctions of caste, religion and gender within a framework of nationalist ideology. Questions related to the relevance of transnational feminism that aims to transcend national frontiers have been raised many times. I conclude with some tensions within the women’s movement in India given the embedded nature of governance feminism; I argue that as women are separated by social class and have different goals and different needs, they can’t always unite politically. I argue that the tension implicit in transnational feminism is useful only if we accept the conceptualization of the neo-liberal state as a new state form which sustains a regime of capital accumulation (Jessop 2002). This aspect becomes more important when current discourses on the meaning of nation and their histories have emerged as objects of struggle between conservative and feminist forces.

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Global feminism, culture and human rights A shift in the nature of international feminism took place in the mid-1980s that facilitated a number of alliances that brought women together in international forums. Out of these efforts, transnational feminist networks engaged in research, advocacy, and a number of activities about women, development and human rights rapidly developed. Though international feminism with its call for ‘global sisterhood’ had been around for a long time, global feminists emphasized normative recommendations that cut across boundaries of culture, nation, religion, race and class.2 They were critical of a ‘global sisterhood’ with assumptions of commonalities of women’s oppression around the world; these assumptions ignored Third World women’s perspective on gender inequality and rights. Unlike international feminism, they aimed for transcending particularities of nation states that divided women from working together. They argued that international feminism neither interrogated, let alone modified, the theoretical underpinnings of the nation state in a Westphalia frame; such as it continued to study prospects for emancipation in a bounded political community; it also assumed a national economy whose proper frame within the democratic state remained central (Ackerly and Attanasi 2009).3 In this section, I argue that even as global feminism was critical of earlier approaches, using a universal human rights paradigm, it constructed for itself the role of saviour of many women’s rights and was unable to discuss issues of difference and inequality. US feminists created a ‘common world of women’ scenario where women were treated as ‘an already constituted coherent group with identical interests and desires, regardless of class, ethnic or racial location or contradictions’ (Mohanty 1997: 334). This global feminist project denied the historical specificity of women as sometimes subordinate or marginal but sometimes powerful or central, depending upon their social location and local power networks. Secondly, global feminism remained trapped within the lens of development and modernization as it portrayed women in non-Western contexts as bound to cultural contexts. Women’s lack of political and social status in these cultures was the cause for their lack of access to rights. A Western model of feminism was propagated, under the universal banner of global feminism, whereby primacy was given to the individual woman and her struggles to realize her potential. Drawing upon modernist ideals of liberal individualism and equal opportunity, women’s advancement was linked to their access to economic resources, vocational training and scientific knowledge. Within this modernist narrative, women from developing countries appeared underprivileged and mired in tradition. It did not highlight how their family, community and alliances with other anti-colonial social

Gender, rights and the justice gap 93 movements, which women regarded as integral to their own struggle for empowerment, were all important. Thirdly, women in non-Western worlds were represented as oppressed victims of a despotic patriarchy in need of support and salvation. Broadly, they justified intervention in the lives of Third World women and disregarded their agency in directing social and economic change (Narayan 1998). Agency was limited to the ‘ability to act freely and according to one’s freely chosen desires’ central to contexts of negative freedom. However, to understand how discursive representations and constructions of cultures are a barbaric source of women’s inequality we have to break out of conventional accounts of agency and study how free actions are ‘untenable within oppressive conditions’ as they interact with and sustain other forms of domination (Madhok 2013: 6). Challenges to a universal view of human rights were soon evident in the controversies about minority women’s rights in multicultural states. The cultural defence arguments used in the scarf affair in France assert minority rights for women but also subvert some of the anti-discrimination clauses of human rights documents and indicate that women are mostly treated as members of families, communities and nations and their interests subordinated to the goals of these entities. In this case we encounter public officials and liberal institutions that supposedly champion women’s emancipation from their religious communities by suppressing the practice of veiling. Yet women resist the state not to affirm their religious and sexual subordination as much as to assert a quasi-personal identity independent of the dominant majoritarian culture. More recent are attacks on ‘burkinis’, essentially full-body swimsuits that comply with Islamic modesty standards but are seen as part of the enslavement of women. Once again, the debate is within the binaries of Islamic custom of covering women and the French government’s concern to separate the sacred from the public sphere; wearing scarves aims at highlighting the peculiarities of the Islamic tradition and especially the barbarities to which the women are subject. Some of these difficulties with universal rights emerge when asylum is sought due to gender persecution. The call for states like the USA, UK, Canada to give asylum to victims of rape, sexual harassment, trafficking for sexual or labour exploitation, forced marriage, gender mutilation and domestic violence are definitely a step ahead for expanding women’s rights. In several cases, in the UK, a more complex agenda appeared when it concerned Muslim asylum seekers fleeing domestic violence.4 In these cases the judges found that the women had established a well-founded fear of persecution based on their preference for Western values.5 Similar to the methodological problem of gender, as a special ground for persecution, the present politics of asylum jurisprudence considers the ‘Third World woman’ to be tradition bound, illiterate and poor, in short, a victim. Thus,

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application of universalist criteria is sometimes applied at the expense of culture ‘when at the same time that culture is used as a means to specify the qualitative nature of violence so that heterogeneity and diversity within communities is downplayed in order to establish evidence of persecution’ (Visweswaran 2004: 509). For example, obliterating regional and countryspecific differences for interpreting Islamic traditions implies that Islam is universally bad for women. Leila Ahmad’s work is useful because of the way in which it canvasses a range of concerns. Colonial measures against veiling in the name of women’s rights were asserted, but these were also to become part of the colonialist effort to delegitimize Islam. She argues, quite like the British discourse in colonial India which focused on retrograde traditions facing women, the Western tradition has focused on veiling as ‘the overarching symbol of the degradation of women and the backwardness of Islam’ (Ahmed 1992: 152). By seeing it as a symbol of female oppression they rule out the possibility for women to choose to wear a particular dress out of personal preference or cultural tradition. After all the indigenous feminist movements which organized to change the unjust conditions in many countries of south Asia also find support from cultures that produce them as individuals (Hirschmann 2003: 117). Human rights discourses would not have changed without the influence of indigenous feminist movements, and yet the successful application of universal rights we mentioned above must assume that those movements either do not exist or are too weak to give protection to women. In a related theme, Ratna Kapur focuses on the international women’s rights movement and the ways in which it reinforced the image of the woman as a victim subject, in particular through its attention to violence against women (Kapur 2002: 19). Keck and Sikkink argue that self-conscious feminist activists began to promote the slogan ‘women’s rights are human rights’ and frame violence against women as a human rights violation (Keck and Sikkink 1998).6 From this point of view, feminist political leadership in the US-based UN women’s networks constructed a new social category: violence against women. They argue that ‘when wife battering or rape in the United States, female genital mutilation in Africa and dowry death in India were all classified as forms of violence against women, women could interpret these as common situations and seek similar root causes’ (ibid.: 197). This new categorization linked female experiences around the globe but also pointed to male dominance within backward cultures as the cause.

Feminist critiques of globalization While global feminism was being discredited, globalization as a concept was explored from several intellectual angles, academic lenses and disciplinary

Gender, rights and the justice gap 95 epistemologies. In the latter part of the 1990s feminist scholars started addressing the impact of neo-liberal economic policies that emphasized free markets, privatization and cheap, feminized labour forces. One of the earliest attempts at feminist anti-globalization activism was the formation of the World Social Forum (WSF), which was based on success of transnational feminist networks around gender and sexuality (Moghadam 2005; Desai 2006). A cursory look at the organization and practice of the WSF shows that the principles that it invoked were inspired by the need to overcome hierarchies and differences of the Global South–North relationships. Whether this led to feminist practices and processes of participation is however contestable (Eschle and Maiguashca 2010). In this section I look at feminist responses to globalization that have caused major changes in the nation state system since the 1990s. While the sites of struggle for the women’s movement have traditionally been related to the household, the workplace and the state, women’s groups now engage much more with supra-national actors including international financial institutions and private-sector corporations. Since capital can flow much more easily than in the past across national boundaries women need to understand how this affects their employment opportunities and structures informalization in the local economies. Also, because globalization has often required the rollback of social protections for formal and informal workers, gender analysts and activists in different regions are finding themselves facing the same issues of additional reproductive burdens, increasing insecurities and disparities between the privileged and the most vulnerable. Yet the process of globalization has given rise to unequal distribution of benefits and burdens amongst women due to the following changes. First, globalization has shifted the focus on ‘women’s issues’ considered fundamental to feminist theorists in understanding gender injustices. Early feminist analyses focused more on domestic violence, workplace discrimination and human rights violations against women that provided valuable insights into the distinctive nature of the specific harms inflicted on women. Now many feminist philosophers view this approach as too narrow, as they contend even apparently gender-neutral global issues often have a gendered dimension. War, for example, intensifies economic inequalities between women as they are forced into unpaid work, into the sex trade for subsistence and care work for the injured and sick in wartime (Chew 2008: 76–77). Instead of seeing these women’s issues as independent phenomena now feminist analyses take into account the systematic and structural gendered injustices associated with neoliberalism (Jaggar 2009). Transnational feminists in particular inquire into capital flows and dominance of capitalist social relations that incorporate the differential impact of globalization in general. Alexander and Mohanty explain that ‘global

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realignments and fluidity of capital have simply led to further consolidation and exacerbation of capitalist relations of domination and exploitation’, what they term also recolonization that recast the social relations of production (Alexander and Mohanty 1997: xvii). Secondly, feminist theorists shift our attention from exclusion of women from formal spaces of globalization to their presence in casual or informal domains, operating in households and communities and networks of alternative politics. These informal spheres are now viewed as key sites where women’s contributions to activities that constitute the public sphere of globalization are made possible. They critique the political economy approach that sees the rise of globalization in terms of structural shifts in the post-war economic system and interventions by international financial institutions. What is ignored is that these events re-inscribe processes in the formal sector in newer ways. For example, a study of these informal spheres, in which women and men are marginalized under global capitalism, reveal the productive processes of sweatshop and homework. These sites subsidize neo-liberal states through informal provision of housing, food, healthcare and education (Baneria and Feldman 1992; Moser 1993). Thus, feminist theorists argue against any simplistic focus on capital flows, their impact on trade, investment and migration, at the cost of ignoring qualitative shifts in the transnational networks of women and indigenous groups (Hirst and Thompson 1996). For these reasons a re-conceptualization of globalization as transnational feminism attempts, paying close attention to the role of place and local knowledge, is strongly advocated (Escobar 2012). There is a need for theorizing globalization in different ways that attract stories from marginalized places because these counter topographies reveal that distinct locales can be understood through experience of particular social practices. This reading of places as embedded and intimately related through globalization process can lay the grounds for building a gendered oppositional politics. For transnational feminism the mobilizations of large numbers of subaltern groups are a response to the extreme form of inequalities that flow from the shift to neoliberalism. Thirdly, apart from a negative critique of globalization, a more positive approach is found in the assertion of an individualistic liberal ontology underpinning much of feminism today. Apart from relying on core liberal political ideals, such as equality, democracy and human rights, to develop critiques of neo-liberal policies, many feminist theorists appeal to liberal democratic norms to argue that southern debt obligations are not morally binding, because their citizens were largely ‘uninformed and/or their options were virtually non-existent’ (Jaggar 2002: 433). A feminist re-articulation of norms is found in some writings that help to identify the

Gender, rights and the justice gap 97 gendered harms in forced domestic labour and women facing economic deprivations (Nussbaum 2000). Many other feminist theorists move past the liberal ontology underpinning much of feminism today and believe that new feminist ideals, such as access to power, collective responsibility and mutual dependence are needed to diagnose gender injustices under globalization (Kittay 1999; Robinson 2006). Iris Young’s social connection model articulates the obligations that people have to workers in the global south for the structural injustices that are inflicted (Young 2011). Feminist approaches to globalization, especially transnational perspectives, necessitate questioning individualistic liberal ontology to bring in intersectional perspectives. Women’s experience of gender oppression is shaped by other kinds of oppression based on race, class, disability and sexual orientation. Thus, gender oppressions interact with other forms of disadvantage such as nationality, caste, religion, race and socio-economic positions within the global economy. Desai argues that intersectional analysis and transversal politics were pioneered by the transnational women’s movement (Desai 2006). In their bid to reflect the diverse interests, experience and concerns of women throughout the world, feminist philosophers critically examine feminist claims with particular attention to methodological practices that decentre their habitual standpoints and foreground perspectives that challenge accepted ways of thinking (Schutte 2002). Finally, the particular nature of feminist movements and activities in the globalization era is closely tied to the networks it created around the state. The main gains of many women’s organizations, namely the cases in which they managed to get the state to acknowledge them in the process of political decision making, include the institutionalization of commissions for women, and the law on equal opportunities in the workplace and employment. Yet feminist theorists argue that the increase in women’s unpaid labour, along with women’s care work, has increased in the Global South. I turn to this focal point in the final section to examine the limits and potentialities of engaging with the state to reclaim rights or to construct alternative forms of developmentalism.

Possibilities and challenges of transnational feminism: going beyond differences Considerable debate and research on transnational feminism has taken place to combat the effects of globalization on marginal groups and the political challenges for them. In what follows I assess the possibilities but also the pitfalls of transnational feminism influenced by the post-colonial approach. An evaluation of the contribution of transnational feminism to social sciences as a whole is fraught with complexities, as feminist discourse is a

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multifaceted branch of competing theories. As someone who is interested in the transformative possibilities it throws up for us, I argue that it is important to investigate and question some of the norms and assumptions of transnational feminist praxis. In their different ways, feminist theorists’ critique of global feminism has been important in deconstructing the notion of universal sisterhood and replacing it with a diversity of local feminisms. Transnational feminism advances the following three arguments against global feminism; (a) women’s oppression and resistance should be historically situated so even as globalizing processes affect every one they affect woman very differently; (b) viewpoints of feminists from various locations around the globe should be recognized. Solidarity is political in nature instead of a form of social solidarity defined on the basis of characteristics shared by all women; (c) feminist organizations, networks, NGOs and movements outside the individual nation state should be built against two enemies: neo-liberal global capitalism and fundamentalist religious movements. With this critique they also attack liberal feminists’ focus on restricting the discourse to access to equal rights and education and the economy for women and the Marxist feminists who seek to transform the socioeconomic structures of capitalist society. Three major contributions of transnational feminism to the rights question are as follows: first they question universalization of gender rights espoused by global feminism. Since the latter was not concerned with the everyday experiences of women as individuals, the work of transnational feminists seek to unveil the crucial yet unaccounted role of women and their denial of rights in conventional spaces like the global economy, war, sex trade and conflict zones. Employing this analysis to scrutinize the entanglements of the state with global and corporate capitalism provides remarkable insights into the history of colonization of some of the countries of the South. Transnational feminists’ major attack is on a form of feminist universalism that overlooks global structural contradictions. As mentioned in the earlier section, any theory of hegemonic oppression under a unified category of gender is misguided. Feminist scholars have established that domestic violence is not a private matter since it cannot be separated from exclusion of women from the public sphere. In a similar vein violence against women cannot be separated from the structural violence of international economy or by international migration and so on (Sadasivam 1997). They also view the ‘epistemic violence’ that is inflicted upon women demonstrated in the Western appropriation and homogenization of ‘Third World’ women’s voices.7 For example in claiming to secure Afghan women from the oppression of the Taliban forces the US reinforced a paternalist discourse which needs to be critically interrogated (Stabile and Kumar 2005). Therefore,

Gender, rights and the justice gap 99 it is claimed that when women’s rights are divorced from community or nation state and relocated in an abstract international realm there is danger of a mode of subjectification. Thirdly, transnational feminists view global interaction as creating more opportunities for social movements to raise issues of local oppressions in international forums (Sassen 1998: 96–97). They have critiqued the language of empowerment frequently found in programmes based on neo-liberal governmentality. Now the stress is on governance in which individuals are encouraged to find solutions to their own economic problems or in favour of ‘rational self-interested’ constructions of agency. Subsequently agency is invoked within the context of ‘strategies of survival’ rather than transformation (Madhok 2013: 14). Such insights into the gendered nature of the state have crucial implications for the way rights discourse is understood in the new scenario. One of the problems is that the focus on the transnational potentially leaves the national/local as an arena that is under-theorized. To overcome this problem, several definitions of transnational feminism have been proposed. Grewal and Kaplan in Scattered Hegemonies called for an analysis of the specific condition which structured women’s lives in different locations rather than an assumption of common condition of oppression (Grewal and Kaplan 1994: 26). They proposed a model for what they call ‘transnational feminist practices’ which is based on differences rather than global sisterhood, which relies on oppositional practices rather than identity politics. Transnational feminists, they argued, ought to enable women in different communities to create coalitions, affiliations or transnational solidarities.8 This lack of theorization was evident when transnational feminists were critical of ‘Third World’ nation states and nationalism as ‘the concept of national identity’ promotes on their view the various patriarchies (Grewal and Kaplan 1994: 15; Alarcon et al. 1999: 6). As argued in an earlier section, most of the transnational feminism theorists now critically examine the integration of the world economy, aided by international financial institutions and multinational corporations that have generated an increased participation of women in low-paying and insecure jobs. Grewal and Kaplan critique the ‘parameters of the local and global’ as indefinable as they ‘thoroughly infiltrate’ each other and have the tendency to overlook multiple locations of women (Grewal and Kaplan 1994: 11). Basu also pointed out that the transnational feminist networks have generated divisions and distrust among ‘Third World feminists’ especially where local and indigenous activism is strong (Basu 1995). In the new scenario, Grewal and Kaplan clarify that the term transnational ‘signals an alternative to the problematic of the global and the international’ and also that their site of engagement is ‘cultural studies’ (2001:

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666, 2002: 67). Moghadam defines transnational feminist networks as ‘mobilizations that advocate for women’s participation and rights while also engaging critically with policy and legal issues and with states, international organizations, and institutions of global governance’ (Moghadam 2005: 5). In a recent volume, transnational feminist movements are understood as the ‘fluid coalescence of organizations, networks, coalitions, campaigns, analysis, advocacy and actions that politicize women’s rights and gender equality issues beyond the nation state’, particularly from the 1990s (Baksh and Harcourt 2015a: 4). Given the limited framework provided by rights, transnational feminists critiques have been more successful in analysing how governance in the last decade is increasingly about managing the ‘interests of global capital’ where ‘women’s rights and security tend to fall off the agenda’ (Taylor 2015: 346). Struggles for women’s rights take place alongside the attack on systems ‘that are themselves flawed and create the conditions for instrumental and exploitative use of women’s labour’ (ibid). As a counter to neoliberalism, Carty and Mohanty sketch a map of transnational feminist engagements and possibilities of ‘an ethical and just solidarity across borders based on attentiveness to power and historical specificities and differences’ (Carty and Mohanty 2015: 92). Similar to problems faced by global feminism, questions are raised about the role of local movements, practices and resistance in their interaction with transnational feminism. Research shows that these new forms of activism are not uniformly beneficial as general discussions often claim (Smith et al. 1997). Many times, this kind of activism originates in the wealthier countries so that issues and norms that frame their grievances in Western terms are mostly acceptable. The bid to form ‘global sisterhood’ has raised concerns once again regarding the relevance of feminism as it is understood in Western feminist theories to local movements elsewhere. Moreover, funding for various NGOs has led to stratification of local groups. It is difficult to accommodate the existence of a variety of global NGOs that are not created through a democratic process or lack representation from local people. Many of them have their own agendas and adopt a very professional approach towards local problems and show preference for groups with certain organizational characteristics guided by gender experts. Although many NGOs have demanded transparency and accountability from public agencies, they have for the most part been fairly vulnerable to similar charges.

The trajectory of women’s rights in India India’s historical record points to a long legacy of economic, political and social struggles against colonial rule, gender-blind approaches to development

Gender, rights and the justice gap 101 and local patriarchal cultures. Women struggled for inclusion in the structures of power and policymaking with a degree of success, even while unequal gender relations have persisted, complicated by locally manifest differentiations of class and social status. The role of women in the national movement and the rise of the women’s movement in the anti-colonial struggle ensured that the constitution would see a positive change in the status of women. The Fundamental Rights enumerated in Part III of the Constitution are the bed rock on which the democratic character of the Indian state is based. The publication of Towards Equality: Report of the Committee on the Status of Women in India in the 1970s revealed a grim picture of the social reality and trends of change that was much in contrast with the goals of equality enumerated in the constitution (2012).9 The rigid hierarchical structures of the political parties did not leave any scope for the women members to attain leadership positions, which left the parties with hardly any understanding of the real causes of women’s problems created by unequal power relations with men. Gail Omvedt points out that socialist and Marxist parties failed to deal with women’s oppression and exploitation even in their women’s wings (Omvedt 1994; Kumar 1993: 97–101). Women who were active and progressively involved with the leftist and radical groups also faced discrimination within the Marxist organizations as they treated women’s question as a cultural one (Datar 1993: 146). After the emergency, a spate of new women’s organizations was born and old ones revitalized. The struggle against dowry and rape gave rise to many autonomous women’s organizations. These groups protested and fought against public and private sexual crimes and injustice but also moved forward to provide shelter, material and legal help to the victims of such atrocities. This aspect of feminist collective autonomous bodies can be viewed in their approach to pave the way to carve a niche for themselves outside the male-dominated party structures. Since then the women’s movement has raised issues of child care, reproductive rights, violence against women and the transfer of technology, giving the notion of development a new meaning in the nation-building discourse. Although the idea of greater representation of women in political institutions in India was taken up by the Committee on the Status of Women in India in 1976, a new phase of decentralized democracy began only with the 73rd and 74th amendments to the constitution, which directed that a 30 percent quota for women be introduced at local levels. Using the law and legal system entails not only working within the judicial system but also with other branches of the government. The arrival of an active court has changed the nature of formal rights for women. Despite constitutional guarantees for gender equality certain areas for women are still problematic in terms of the rights framework. In India

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the issue of abortion has entered through a different trajectory from that followed by the West. Here the right to abortion has never been the centre of much debate since it is seen as a measure to control population growth. Abortion has been legal in India since the Medical Termination of Pregnancy Act of 1971, but the legislation originated from the population-control imperatives of the Indian state.10 The bill was passed with overwhelming majority despite the fact that the majority religions Hinduism, Islam and Christianity had textual traditions that denounced abortion as a sin. Access to abortion was upheld on the grounds that overpopulation was the main reason for mass poverty in India. It was passed also with the intention of reducing illegal abortion and consequent maternal mortality. Abortion became an issue for the feminist discourse in the Indian context for very different reasons related to female infanticide, generally believed to be a localized practice in rural pockets of some States like Bihar, Punjab, MP, Gujarat, Maharashtra, Rajasthan and Tamil Nadu (Dehal et al. 2016; Kishwar 1997; Kulkarni 1986). The practice of female infanticide has been supplemented or rather aggravated in recent times by the practice of female feticide, which has made inroads into areas where traditionally there were no instances of female infanticide. The ban on the government hospitals and clinics at the centre and in the states, making use of prenatal sex determination for the purpose of abortion, led to the commercialization of this technology and expansion of private clinics providing sex-determination tests through amniocentesis.11 The trivialization of abortion, the medicalization of sex determination and female feticide resulted in numbing the sense of wrongness in violation of rights. It is only after the 2001 census showed a significant drop in the female-to-male sex ratio that the government has increased its efforts to publicize the illegality of selective abortion of female foetuses. This debate became convoluted in the way assumptions underlying feminist demands for curbs on sex-determination tests seem to overlap assumptions behind justifying restrictions on abortion itself. There has been a call for a ban of such pre-selection techniques in future. Thus, the problem of female feticide and the drop of the male–female ratio in India cannot be understood within the narrow periphery of rights alone. The ominous turn in recent years relates to the issue of sex-selective abortion in India which has resulted from the subordinate position of women and the son preference in society. Prostitution in India is a thriving industry even though it has been subject to coercive laws through post-independent India. After independence, India became a signatory to the UN International Convention for the

Gender, rights and the justice gap 103 Suppression of Traffic in Persons and of the Exploitation of Women, 1950. This led to the enactment of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) that had a tolerant approach accepting prostitution as a necessary social evil. The act underwent further amendment in 1978 and in 1986 so that now it is titled Immoral Traffic in Persons Prevention Act, 1986 (ITPA). The legislation is faithful to the conception of sex work being synonymous with trafficking and proceeds to stigmatize it. Despite the changes in law, the substantial aspect of the act, the criminalized view of prostitution persists. According to this law sex work in India is neither legal nor illegal; it is tolerated since prostitutes can practice their trade privately but cannot legally solicit their customers in public. Significantly sex workers are not protected like other workers and not entitled to minimum wage benefits, compensation for injury or other benefits. They do not possess the right to rescue and rehabilitation. The view of abolitionists is that prostitution must be recognized not only as part but as a foundation of the larger system of patriarchal subordination of women. They also argue that if prostitution is recognized as a legitimate form of labour that removes it as an issue from the violence against women. The term sex work in fact does not convey the exploitation of trafficking and prostitution. With respect to legislation they seek the decriminalization of prostitution. They criticize repressive policies against prostitutes but promote the persecution of customers and pimps, who are to blame for the exploitation of women. Finally they oppose a regulationist system that controls prostitution through zoning, licensing and in some cases health checks. The issue of women’s rights and family law reform was entangled within the polemics of identity politics and minority rights over the Shah Bano verdict in the 1990s. In the political controversy over the UCC which was locked within the binaries of Hindu majority and Muslim minority, the claims of other religious minorities to a separate personal law, as a marker of their cultural identity, was conveniently undermined.12 In the case under discussion religious and gender identities of Muslim women were counterpoised to each other, giving rise to a tension between the claims of cultural communities versus women’s rights of equal citizenship. Moreover, arguments proposed by the government assumed that Muslims constitute a self-contained and monolithic community whose interests are represented by Muslim MPs and a section of the ulema. It completely avoided the issue of the lived experience and aspirations of Muslim women. In the absence of a reformed divorce law, Muslim women were unequal vis-à-vis men and were rendered unequal vis-à-vis

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women from other communities who have access to the law in respect of maintenance.

The justice gap: challenges of governance feminism and intersectional approach Key to the success of the feminist movement in the 1990s has been the strategy of working simultaneously inside and outside political institutions. Feminists targeted both global governance institutions while contributing to the establishment of national women’s gender machineries, appointment of women at high levels in government and the UN and funding of the gender equality programmes. Thus, they can claim many successes in mainstreaming gender through engaging in direct political struggles with institutions such as legislatures, the media, religious groups and executive. On the other there are difficult and awkward contradictions, collusions and co-optations in working with and within institutions and governments. On women’s rights the most famous case is the Visakha v. Union of India case where the court gave a new dimension to sexual harassment and made it mandatory for educational institutions to have sexual grievances committee to look into issues of harassment.13 In recent years several gendersensitive laws including the Protection of Women from Domestic Violence Act 2005, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, and most recently the Criminal Law (Amendment) Act, 2013, have been accepted. Feminists preference for regulatory reform may have been due to a broad and popular base of supporters in civil society, although in the passage of the 2013 rape law reforms following the Nirbhaya case it was public protests and social media interventions that eventually pushed through reform. Many questions arise: what are the implications for governance feminism and secondly its relation to transnational feminism?14 In recent years there has been a critique of the noticeable installation of feminists and feminist ideas in actual legal-institutional power. As feminist legal activism comes of age, it accedes to a newly mature engagement with power. This is evident in sexual harassment programmes in corporate and educational settings, in the tracking of female prosecutors into ‘sex crimes’ units, in the elaboration of feminist expertise about gender policy ranging from home economics to reproductive policy to educational reform and in the formation of non-governmental organizations (NGOs). Janet Halley has described governance feminism as the ‘incremental, but now quite noticeable installation of feminists and feminist ideas in actual

Gender, rights and the justice gap 105 legal-institutional power’ and the insertion of feminist knowledge, technique and practice into institutional contexts (Halley 2006: 335, 340). The other challenge is from what is characterized by the ‘contract/crime paradigm’ where legal structures that seek to preserve the freedom of the market exist alongside and reinforce the heightened surveillance and policing of citizens (Halley and Thomas 2013: 13, 15). Carceral feminism concentrates on punitive legal responses to sexual violence; it is an approach that sees policing, prosecution and imprisonment as the primary solution to violence against women. A mapping of Indian feminist interventions on the law of rape over the past three decades suggests that Indian feminism displays key characteristics of governance feminism or what some have called carceral feminism. Viewing the 2013 reforms as the culmination of decades of feminist lobbying of the state for rape law reform, Indian governance feminism is deeply committed to a highly gendered understanding of sexual violence. Further, that Indian feminism has increasingly resorted to the use of the criminal law to address sexual violence even as its historical suspicion of post-colonial state power has reduced considerably and is now mostly evident in its opposition to the death penalty for rapists (Baxi 2016). What unites both governance feminism and carceral feminism is an indictment of feminists that use the law in this way as blind to its consequences; the ironic effect of disempowering vulnerable minorities and especially women of these communities. This critique charges feminists who push the state to enact legal reforms with ignoring their own constituency; it accuses them of inflicting harm on groups of people by its insistence that women are always subordinated. Furthermore, feminist involvement in the law and policy against sex trafficking rejects what Janet Halley has called governance feminism – that is feminism that seeks to analyse and critique the problem so that feminist organizations devote extraordinary effort towards shaping the text and the enforcement of international law criminalizing trafficking in persons and sex trafficking in particular. Another site of contestation is from the intersectionality approach that challenges arguments about the homogenization of the category ‘woman’ in development and legal discourse. Many scholars claim that we need to avoid essentialism and consequently incorporate a more diverse set of women’s experiences into our analysis. The stigma of harassment, assault or rape is borne by the victim/survivor for the remainder of her life whatever her class, caste or religious background, and the incident affects women in their social and personal life and all relationships. Yet a sharp contrast exists between the way sexual harassment of middle-class women is constructed in law and the way in which sexual assault of poor women

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is imagined. This strong critique laws that speaks for a specific class of women, along with age, ethnicity and a level of educational attainment has arisen in recent judicial pronouncements. Difficult questions about voices and authenticity that attend the reliance on experience can be countered by contextual analysis; we can gain an understanding not simply of the harms of inequalities but also of the ways in which these harms are reproduced due to structural and ideological aspects (Verma 2015). Many women’s groups are criticized for not using their participation in international conventions to advance the position of low-income women. Class differences separate women in ways that transcend a simple lack of mutual support.

Conclusion Over the years women’s groups have questioned a discourse of rights that follows from the equal treatment paradigm. At the international level, global feminists attempted to expose the fallacy of liberal universalism, but they were keen to reframe rights to include women’s concerns within the human rights discourse. A starting point in this debate was that international women’s rights will not have the support of diverse women worldwide until the cultural assumptions within international human rights norms are interrogated along with the gendered premises of those norms (Renteln 1988). It is not surprising that these approaches have often been accused of fostering cultural relativism. Also principled priority of the language of rights recreates patterns of cultural deviance that fall upon some nations and geographical areas and not upon others. The main challenge is that there is so little agreement from culture to culture about what constitutes discrimination against women. The understanding of discrimination against women evolves with insights, perspective and empirical information on how women are subordinated by different legal, social and religious traditions. The problem is more acute since enforcing women’s rights means that special attention be given to the private sphere. But this implies reinterpreting the notions of dignity, autonomy, bodily integrity and sexuality of women that are embedded in their religious and cultural norms. I then present feminist critiques of globalization and identify the contribution of transnational feminism in raising some fundamental question about the structural and normative foundations of capitalism and its impact on gender. Transnational feminism engages with issues of concern to women across national boundaries with the goal of increasing women’s status worldwide. In particular, they engage in research, advocacy, lobbying, public protests, and humanitarian assistance to advance women’s strategic

Gender, rights and the justice gap 107 gender interests as well as to help meet women’s practical or basic needs. A common feature of transnational feminism is international solidarity as they target discriminatory or oppressive laws, policies and norms. Despite their scepticism of the nation state, I argue that there is a need for some unifying regulative idea so that we could re-imagine feminism in the south and subscribe to it. Whether transnational feminism will come to inform a radical vision for everyday politics of global justice depends on how they meet the challenge within the nation state and are able to sustain political coalitions that are participatory and willing to engage in dialogue. While transnational feminism avoids the trap of universalism and cultural relativism in its articulation of rights for global and local feminisms, it still faces major challenges. We focus on two major challenges in the Indian context for transnational feminism: governance feminism and problem of intersectionality. In both these contexts transnational feminists can only enhance the power of the post-colonial state by expanding its criminal law apparatus and also the legal rights framework, which becomes deeply problematic. It overlooks Indian feminists’ historically critical attitude towards state power. It also raises questions about whether women’s presence in institutions can change legal thought and legal operations. Once women gain a foothold in governance, can they succeed in fostering a critique of the norms that can sustain their control over institutions of the state? Many of the failures to confront feminist solidarities across class and caste are evident in the current political regimes. Many Dalit and tribal communities are excluded from the neo-liberal order of self-help even as it sets up women globally as good subjects. In this context can we rely only on love, care and nonviolence to include the political elite or upper-caste and non-marginalized women? Should we challenge fundamental norms for fostering international sisterhood?

Notes 1 Most of this discussion refers to women’s rights due to pregnancy and childbirth in the workplace. 2 International feminism is an ideological standpoint which relates to the suffrage movement and socialist movements. For this see Val Moghadam. 2017. ‘From International to Transnational Organising a century’s feminist journey’, The Feminist eZine, April 4, www.feministezine.com/feminist/ modern/International-to-Transnational-Feminism.html. 3 In their view, Nussbaum and Okin do not pay sufficient attention to the ways that justice and injustice are mediated by local conditions in their attempts to identify universal moral ideals. 4 Islam vs Secretary for the Home Department; R v Immigration Appeal Tribunal and Another: Es parte Shah (1999) 2 WLR 1015 at 1034–1035.

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Minister for Immigration and Multicultural Affairs vs Khawar (2002) HC 14; Fornah v. Secretary of the State for the Home department, UKHL, 46, 2006. Gender is not an explicit ground for asylum under the Refugee convention, but it is an established principle that it should be interpreted to include gender dimensions of persecution for determining claims to refugee status. For more see www.ohchr.orgn/english/law/eliminationvaw.htm, on ‘Declaration on Elimination of Violence against Women’, General Assembly Resolution, 48(104), December 20, 1993. I rely on Ayotte and Husain’s formulation about epistemic violence (2005). Grewal and Kaplan cite the transnational feminist networks (TFNs) such as Women against Fundamentalism based in England, Women Living under Muslim Laws (WLUML) and Asian Women’s Shelter in San Francisco, as exemplary transnational feminism. Towards Equality. 2012. Report of the Committee on the Status of Women in India (Henceforth CSWI). New Delhi: Centre for Women’s Development Studies. The objectives of the MTP act of 1971 were: (a) humanitarian; to help women who were the victims of forcible sexual acts; (b) health; to be sympathetic to those who become pregnant because of failure of contraceptives use and (c) eugenic: to reduce the risk of crippled children In 1975 the All India Medical Sciences initiated experiments in using amniocentesis for detecting foetal abnormalities. A by-product of the test was knowledge about the sex of the foetus, and most of the couples who learnt the foetus was female went in for abortion. See Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844). Vishaka Guidelines against Sexual Harassment in the Workplace came into force on 13 August, 1997 see www.legalserviceindia.com. For more on Nirbhaya case, see Justice Verma Committee Report, 2014.

Bibliography Ackerly, Brooke and Kay Attanasi. 2009. ‘Global Feminism: Theory and Ethics for Studying Gendered Injustice’, Journal of New Political Science, 31(4): 543–555. Ahmed, Leila. 1992. Women and Gender in Islam: Historical Roots of a Modern Debate. New Haven: Yale University Press. Alarcon, Norma, Caren Kaplan, and Minoo Moallem (eds.). 1999. Between Woman and Nation: Nationalisms, Transnational Feminisms and the State. Durham, NC: Duke University Press. Alexander, Jacqui and Chandra Talpade Mohanty (eds.). 1997. Feminist Genealogies, Colonial Legacies, Democratic Futures. New York: Routledge. Asylum and Immigration Appeals Act 1993. UK. Ayotte, Kevin J. and Mary E. Husain. 2005. ‘Securing Afghan Women: Neocolonialism, Epistemic Violence and the Rhetoric of the Veil’, NWSA Journal, 17(3): 111–133.

Gender, rights and the justice gap 109 Baksh, Rawwida and Wendy Harcourt. 2015a. ‘Introduction’, in Rawwida Baksh and Wendy Harcourt (eds.), The Oxford Handbook of Transnational Feminist Movements, pp. 1–47. Oxford, UK: Oxford University Press. Baksh, Rawwida and Wendy Harcourt (eds.). 2015b. The Oxford Handbook of Transnational Feminist Movements. Oxford, UK: Oxford University Press. Baneria, Lourdes and Shelley Feldman (eds.). 1992. Unequal Burdens: Economic Crisis, Persistent Poverty and Women’s Work. Boulder: Westview Press. Basu, Amrita (ed.). 1995. The Challenge of Local Feminisms: Women’s Movements in Global Perspectives. Boulder: Westview Press. Baxi, Pratiksha. 2016. ‘“Carceral Feminism” as Judicial Bias: The Discontents around State v. Mahmood Farooqui’, Interdisciplinary Law, 3: 1–30. Beitz, Charles. 2009. The Idea of Human Rights. Oxford, UK: Oxford University Press. Bunting, Annie. 1993. ‘Theorizing Women’s Cultural Diversity in Feminist International Human Rights Strategies’, Journal of Law and Society: Feminist Theory and Legal Strategy, 20(1): 6–22. Carty, Linda E. and Chandra T. Mohanty. 2015. ‘Mapping Transnational Feminist Engagements’, in Baksh Rawwida and Wendy Harcourt (eds.), The Oxford Handbook of Transnational Feminist Movements, pp. 82–115. Oxford, UK: Oxford University Press. CEDAW. 1979. Convention on the Elimination of All Forms of Discrimination against Women, www.un.org/womenwatch/daw/cedaw/cedaw.htm (accessed on 23 May 2016). Chew, Huibin Amelia. 2008. ‘What’s Left? After Imperial Feminist Hijackings’, in Robin L. Riley, Chandra Talpade Mohanty, and Minnie Bruce Pratt (eds.), Feminism and War: Confronting US Imperialism: Feminism and War: Confronting US Imperialism, pp. 75–91. London: Zeb Books. Chrisman, Laura and Patrick Williams (eds.). 1998. Colonial Discourse and Post-Colonial Theory: A Reader. New York: Columbia University Press. Datar, Chaaya (ed.). 1993. The Struggle against Violence. Calcutta: Stree. Dehal, Neelam Singh et al. 2016. ‘Tracking a Female Foetus: Preventing Gender Imbalance in India’, Scandinavian Journal of Public Health, 44(8). Desai, Manisha. 2006. Gender and the Politics of Possibilities: Rethinking Globalization. Lanham, MD: Rowman and Littlefield. Eschle, Catherine and Bice Maiguashca. 2010. Making Feminist Sense of the Global Justice Movement. Lanham, MD: Rowman and Littlefield. Escobar, Arturo 2012. Encountering Development: The Making and Unmaking of the Third World. Princeton, NJ: Princeton University Press. Ferree, Myra Marx and Ali Mari Tripp. 2006. Global Feminism: Transnational Women’s Activism, Organising and Human Rights. USA: New York Press. Grewal, Inderpal and Caren Kaplan. 1994. Scattered Hegemonies: Postmodernities and Transnational Feminist Practices. Minneapolis: University of Minnesota. Grewal, Inderpal. and Caren Kaplan. 2001. ‘Global Identities: Theorising Transnational Studies of Sexuality’, GLQ, 7(4): 663–679.

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Grewal, Inderpal. and Caren Kaplan. 2002. ‘Transnational Practices and Interdisciplinary Feminist Scholarship’, in Robyn Weigman (ed.), Women’s Studies on Its Own, pp. 66–81. Durham, NC: Duke University Press. Halley, Janet and Chantal Thomas. 2013. Governance Feminism (A Two Book Publication). Minneapolis: Minnesota University Press, www.lawschool.cornell. edu/cornellIL-IR/upload/IL-IR-Colloquium.pdf. Halley, Janet et al. 2006. ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism’, Harvard Journal of Law and Gender, 29: 335. Held, David. 1995. Democracy and the Global Order. Stanford, USA: Stanford University Press. Hirschmann, Nancy. 2003. The Subject of Liberty: Towards a Feminist Theory of Freedom. Princeton, NJ: Princeton University Press. Hirst, Paul. and Grahame. Thompson. 1996. Global in Question: The International Economy and the Possibilities of Governance. Cambridge: Polity Press. Immigration Act 1971. UK. Jaggar, Alison. 2002. ‘Vulnerable Women and Neoliberal Globalization: Debt Burdens Undermine Women’s Health in Global South’, Theoretical Medicine and Bioethics, 23(6): 425–440. Jaggar, Alison. 2009. ‘The Philosophical Challenges of Global Gender Justice’, Philosophical Topics, 37(2): 1–15. Jessop, Bob. 2002. ‘Liberalism, Neoliberalism and Urban Governance: A StateTheoretical Perspective’, Antipode, 34(3): 452–472. Kapur, Ratna. 2002. ‘The Tragedy of Victimization Rhetoric: Resurrecting the Native Subject in International/Post-Colonial Feminist Legal Politics’, Harvard Human Rights Journal, 15: 1–37. Keck, Margaret and Kathryn Sikkink. 1998. Activists beyond Borders: Advocacy Networks in International Politics. Ithaca, NY: Cornell University Press. Kishwar, Madhu. 1997. ‘Mothers and Disappearing Daughters’, in Alexis Jetter (ed.), The Politics of Motherhood: Activist Voices from Left to Right. England: Dartmouth. Kittay, Eva. 1999. Love’s Labour: Essays on Women, Equality and Dependency. New York: Routledge. Kulkarni, Sanjeev. 1986. Prenatal Sex Determination Tests and Female Foeticide in Bombay City: A Study. Mumbai: Foundation for Research in Community Health. Kumar, Radha. 1993. The History of Doing: An Illustrated Account of Movements for Women’s Rights and Feminism in India (1800–1900). New Delhi: Kali for Women. Madhok, Sumi. 2013. Rethinking Agency: Developmentalism, Gender and Rights. Abingdon, UK and India: Routledge. Moghadam, Valentine. 2005. Globalizing Women: Transnational Feminist Networks. Baltimore and London: Johns Hopkins Press.

Gender, rights and the justice gap 111 Moghadam, Valentine. 2017. ‘From International to Transnational: Organising a Century’s Feminist Journey’, The Feminist Ezine. Downloaded. Mohanty, Chandra Talpade. 1997. ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’, Boundary, 12(3): 333–358. Mohanty, Chandra, Talpade. 2003. Feminism without Borders: Decolonizing Theory, Practicing Solidarity. Durham, NC: Duke University Press. Moser, Caroline. 1993. Gender Planning and Development. London: Routledge. Naples, Nancy and Manisha Desai. 2002. ‘Woman’s Local and Trans-Local Response’, in Nancy Naples and Manisha Desai (eds.), Women’s Community Action and Globalisation, pp. 33–43. New York: Routledge. Narayan, Uma. 1998. ‘Essence of Culture and a Sense of History: A Feminist Critique of Cultural Essentialism’, Hypatia, 13(2): 1527–2001. Nussbaum, Martha C. 2000. Women and Human Development: The Capabilities Approach. Cambridge: Cambridge University Press. Omvedt, Gail. 1994. Dalits and the Democratic Revolution. New Delhi: Sage Publications. O’Neill, Onora. 2000a. ‘Women’s Rights: Whose Obligations?’, in Onora O’Neill (ed.), Bounds of Justice, pp. 97–111. Cambridge: Cambridge University Press. Renteln, Alison. D. 1988. ‘Relativism and the Search for Human Rights’, American Anthropologist, 90(1): 56–72. Robinson, Fiona. 2006. ‘The Ethics of Care and Women’s Work in the Global Economy’, International Feminist Journal of Politics, 8(3): 321–342. Sadasivam, Kamala. 1997. ‘The Impact on Structural Adjustment on Women: A Governance and Human Rights Agenda’, Human Rights Quarterly, 19(3): 630–665. Sassen, Saskia. 1998. Globalisation and Its Discontents. USA: New Press. Schutte, Ofelia. 2002. ‘Feminism and Globalisation Processes in Latin America’, in Mario Saenz (ed.), Latin American Prospects on Globalisation: Ethics, Politics and Alternative Visions, pp. 185–199, New York: Rowman and Littlefield. Sinha, Mrinalini. 2000. ‘Introduction’, in Katherine Mayo, Mother India: Selections from the Controversial 1927 Text, edited by Mrinalini Sinha, pp. 1–62. USA: Michigan Press. Smith, Jackie, Charles Chatfield, and Ron Paggnucoo. 1997. Transnational Social Movements and Global Politics: Solidarity beyond the State. Syracuse: Syracuse University Press. Spivak, Gayatri. 1994. ‘Can the Subaltern Speak?’, in Laura Chrisman and Patrick Williams (eds.), Colonial Discourses and Post-Colonial Theory: A Reader, pp. 66–111. New York: Columbia University Press. Stabile, Carol and Deepa Kumar. 2005. ‘Unveiling Imperialism: Media, Gender and War on Afghanistan’, Media, Culture and Society, 27(5): 765–782. Taylor, Viviene. 2015. ‘Human Rights and Human Security: Feminists Contest the Terrain’, in Baksh Rawwida and Wendy Harcourt (eds.), The Oxford Handbook of Transnational Feminist Movements, pp. 346–366. Oxford, UK: Oxford University Press. Verma, Vidhu. 2015. Unequal Worlds. New Delhi: Oxford University Press.

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Law, rights and politics Dilemmas and responses Anita Tagore

Theorizations of jurisprudence are ingrained in the imaginations of law and rights. The intimate interface between law and rights lies in the varying idea(s) of justice. A definitive normative understanding considers rights as a set of agreed political claims that are legitimately grounded in law. Consequentially, the framework of law emerges as a discursive space for competing claims – making, as well, legitimization and de-legitimization of such claims for the sake of justice. The philosophy of law has centred around two principal questions – what is law and what law ought to be in the context of rights. Generally, law protects rights. In an explanatory essay, ‘Are There Any Natural Rights?’ the great legal philosopher H.L.A. Hart argued ‘the concept of a right belongs to that branch of morality which is specifically concerned to determine when one person’s freedom may be limited by another’s and so to determine what actions may appropriately be made the subject of coercive legal rules’ (Hart 1955). Both law and rights are connected intrinsically to justice in any social order. Sui generis, law is neither apolitical nor autonomous. Fundamentally it has a political nature and concomitantly, it is socially and historically constructed. It reflects and impacts culture and also reinforces inequalities through differential access to and competence with systems of power including legal institutions. Nonetheless, the primary indispensability of law lies in the immediate recognition and legitimization of rights. The resurgence of interest in public institutions has propelled an intense debate about courts as contested sites for discoursing the new contours of law and society. In modern times, law has incorporated elements of gender specificities to address the question of discrimination and inequality. Law has become a discursive space where rights and identities are negotiated and institutionalized. The emancipatory potential of law can only be established when it mitigates and promotes equal citizenship assuring non-discrimination. It is

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often expected that law can become an instrument to strengthen institutional capacity for guaranteeing access to justice by marginalized groups. The Constitution is an edifice of rights for its citizens, and these rights get strengthened by laws. The rights-conferment role of law is important for modern democracies. Social movements in general and human rights groups in particular have reasserted the potential of laws in actualizing democratic rights of the disempowered and the disadvantaged. The parochial and conservative colonial jural postulates incorporated in criminal justice systems have been the cynosure of controverted debates in post-colonial societies. The systematic European imposition of control was through the ‘othering’ process of law. Law was not only the cutting edge of colonialism but also an effective instrument of the power of the alien state. It was a part of the coercion that was used to pacify and govern the colonized people. The logic of European domination was premised on the idea of universal progress that could be achieved by subordination of the ‘kingdom of custom’ to a superior legal order. Paradoxically the tensions and rebellions of the colonial rule were also mediated by the means of law. The continuity of the legacy of archaic colonial laws posits democratic dilemmas in modern constitutional post-colonial states. The democratic dilemma lies in the undemocratic practices of the legal system that cause premature death of rights. On one hand the Constitution commits to the rights of equality and liberty, and on the other hand there is prevalence of archaic moribund laws that are essentially rooted in ‘unfreedom’ and un-democracy. This chapter explores how law which is co-terminally reflective of the constitutional trust has failed in many ways to deconstruct gender stereotypes and liberalize the institutionalized normative understanding of practices that reinforce gender regimes of ‘unfreedom’ in India. State gender regimes operate through both interpretive as well as redistributive structures. How do feminists understand the state’s role in interpreting the categories of gender? It looks into the context of the constitutional catalogue of rights that gets subverted in the process of judicial decision making and adjudication. The main argument is situated in understanding the judicial discourse on rights of women in the context of violence in intimate relationships. The vicissitudes of violence against women in the household need special attention to understand the historical deep-seated argumentation of judicial decision making in India. Such violence against women is often explicitly decriminalized or treated in a more or less ineffectual manner by the criminal justice system. I have taken two prominent issues – domestic violence and marital rape – to substantiate the responsiveness of the state/court through its decisions. It addresses the larger question of limits of procedural justice and substantive moral dilemmas that emerge in statutory

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interpretation by the courts. How does the justice system stratify its subjects? The institutionalization of ‘otherness’ in production of countersubjectivities in law reflects on the inconsistencies between constitutional morality and legal adjudication in the larger discourse of rights in India. The need is to recast the irreducible forms of justice – distributive justice and corrective justice – in such a way that the creative aspects of rights become more relevant to law reform strategies.

Debates on gender in law Feminist theorizing about law has encompassed a corpus of critical scholarship on the emancipatory potential of law and its scope as a tool in challenging the discrete sources of discrimination. The methodological concern is the critique of traditional content of law by proposing to place women and their experiences as the vantage point of their engagement. Such a directional exploration clearly seeks to contextualize the impact and implications of law on women’s situation of disadvantage with the goal of bringing about transformative and affirmative changes. So the ‘gender in law’ standpoint has intensely debated the concealing and invisible gendered assumptions embedded in the so-called gender-neutral legal systems. Feminism presupposes that ‘gender’ has much greater structural and discursive relevance than what is conceded. Law therefore, is not merely an instrument of capitalist patriarchal domination or a reform arrangement. Principally, law offers a body of knowledge that requires continuous and sustained gender audit. Feminist jurisprudence arose in the 1970s in response to the political intellectual development in law and the second-wave women’s movement (Weisberg 1993). The intellectual developments have perceived of law as a sexist ideology in the first phase. In the second innings law is viewed as an interpretation of gender relations and finally as a constitutive discourse. The relationship between feminism and law is best explained by Catherine MacKinnon when she says, In point of fact, I would prefer not to have spent all this energy getting the law to recognize wrongs to women as wrong. But it seems to be necessary to legitimize our injuries as injuries in order to delegitimize our victimization by them, without which it is difficult to move in more positive ways. The legal claim for sexual harassment made the events of sexual harassment illegitimate socially as well as legally for the first time. Let me know if you figure out a better way to do that. (MacKinnon 1987: 104)

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The debate in the feminist movement on law is intertwined with legal rights and gender equality. Within the feminist movement itself the question of legal equality for women has posed theoretical and functional dilemmas. The sameness and difference arguments have presented distinct perspectives on this question. Some Anglo-American legal theorists have however suggested that the rhetoric of rights has become exhausted and may even be detrimental ‘to the cause of women’s equality’ (Smart 1989). The ‘rhetoric of (equal) rights is inadequate’, says Carol Smart, ‘in a situation where women have been demanding for rights for which there has been no masculine equivalent in the past’ (ibid.: 67). Equally significant is the observation of Martha Fineman, whose argument is ‘the unequal and inequitable position of women can only be remedied through pervasive legal accommodation of difference . . . . there has been a move away from inequality as one of the organizing the principles of legal thought’ (Fineman 1992). Indeed, she argues that a theory of difference, rather than the discourse of equality, may be a more gainful strategy for legal feminists to pursue. Other feminist legal theorists such as Catherine Mackinnon argue that both the sameness and the difference approaches are ingrained in the notion that man is the final measure of women. Mackinnon says, ‘Under the sameness rubric, women are measured according to the correspondence with man, their womanhood judged by the distance from his measure’ (MacKinnon 1989). She advocates the paradigmatic shift towards substantive equality that recognizes women’s realities. In short, Mackinnon’s critique of liberal legalism looks at the inadequacies of legal reform logic and argues that the impediments to equality are often legal. Violence has been a critical point of policy intervention for feminists in their dialogue with the state. Feminists have debated the ability of law in responding to violence. The issue is the causatum deterring, tranquilizing or preventing violence, potential or actual or both. How can effective mobilization of legal systems be indubitably capitalized upon for protecting women from violence? Can mobilization efforts advance egalitarian changes? Does law exclusively respond to the complexities of violence?

Fundamental responses to the women’s movement Much has been written about the history of the women’s movement in India. In this section I have focused on the women’s movement’s encounters with law and its response to the issue of violence in the post-independence period. In the last three decades of the post-independence period the women’s movement in India has grappled with the question of violence particularly in the private domain of the family. The tendency is that the family remains largely unperturbed by state legal interventions. Dowry, rape and

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domestic violence dominated the activism discourse in India. It was in the early 1980s that the women’s movement organized and mobilized itself around dowry murders. Initially the protests were sporadic in nature, but they gathered a wider base when women’s groups were joined it by local residents and professionals. Since the campaign against dowry brought visibility to women’s issues and unto the public agenda, it was considered to be a momentous event to have ‘launched’ the women’s movement in India (Kumar 1989). Thereafter, the Dowry Prohibition Act which was enacted in 1961 was amended twice in the 1980s. The acquittal of the police constables accused of raping a minor tribal girl in the Mathura case was so unsettling that four law professors wrote an open letter to the Chief Justice of India calling upon the need for judicial protection of human rights and adherence to constitutionalism.1 This sparked off mobilization about custodial rape and brought about several significant legal reforms in the Criminal Procedure Code, Indian Penal Code and Evidence Act. Yet some legal lacunae remained for future remedial enterprise. Certain procedural aspects of rape trials were undealt with, and the question of marital rape remained untouched. Under the umbrella name of Vishakha, women’s groups filed a petition in 1992 in the Supreme Court against sexual harassment at workplace. For the first time in India sexual harassment at workplace was legally recognized and proceeded to lay down the Guidelines following the historic Vishakha judgement. Contemporaneously, the long and protracted demand for a new legislation criminalizing the use of reproductive technologies for sex-selective abortions gained popular support and finally took the shape of the PCPNDT Act, 1994. The inadequacy of Section 498A and Section 304 B of the Indian Penal Code in mitigating violence in the form of cruelty by a husband and his relatives was evident by the increasing number of death of married women. There was a growing concern among women’s groups about the need to include a comprehensive legal framework to address domestic violence. Criminalization of domestic violence combined with civil punitive measures was the demand of the women’s movement. Consequently, the Protection of Women from Domestic Violence Act saw the light of day in 2005.

Understanding domestic violence and discrimination The watershed for feminist-led law reform has been the Protection of Women from Domestic Violence Act (PWDVA) in 2005. The efforts of feminist legal activists, spearheaded by the Lawyers Collective, culminated in the consensus on a legislative mandate to outlaw domestic violence under the umbrella of a unitary law. The prelude in the form of statement of objects and reasons incontrovertibly assures that the Act will provide a

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more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. Articles 14, 15 and 21 of the Constitution are invoked to establish equal guarantee of rights within a human rights perspective. A closer examination shows that for the first time the law invades the non-interventionist zone of the family, covering intimate relationships of a valid marriage and a relationship in the nature of marriage. Hitherto, section 498A of the Indian Penal Code was the state’s response to address the offence of cruelty on a married woman alone by her husband or her relatives. The incapacity of the law to deal with violence against women in an extensive way within the so called safe space of the family was a serious concern for the Indian women’s movement. A civil law in the form of PWDVA with its adjunct subset of right to civil remedies like right to reside in a shared household, protection order, in camera proceedings, monetary reliefs, compensation for the injuries and custody orders giving temporary custody of the children had a newness that promised optimism. However, the unfolding of judicial decisions on PWDVA has unfolded a story of statutory interpretation that has oscillated between procedural fairness and substantive fundamental justice with a veiled preference to the former. The judgements on PWDVA in the first ten years after its enactment has been constitutive of a body of knowledge that has vacillated the constitutional mandate of equality and justice at different junctures. The most prominent judicial decision that subverted the constitutional commitment and capsized the radicalization of this law to provide an effective remedy to combat domestic violence was S. R. Batra v Taruna Batra.2 The Supreme Court deliberated on the definition of the shared household delegitimizing the wife’s claim to residence or injunction from dispossession of property where the mother-in-law owned the house. The Court could have set a powerful precedent in expansive interpretative jurisprudence in securing women’s right to residence given the context that women hardly own houses/land of their own. Most of the times women lack an exit option in marriage as their access to resources, be it house or land or other, is very limited. At this instance, by using constructive interpretation in congruity with the objectives of the Act the Court could have explored a newer framework for engendering rights and justice in India. In the Aruna Parmod Shah v Union of India, the unconstitutionality of the Act was challenged on the grounds of sex discrimination. The foundational basis of the argument was the repudiation of the equality guarantee provisions in the Constitution.3 This was the first case when the Act was challenged as ultra-vires. It was assailed that rights in the form of protection were guaranteed to women alone and not to men and that this was in contradiction with Article 14 of the Constitution. The reasonableness of

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permissible classification was questioned. The other strenuous objection of the litigant was on the issue of equal entitling of rights to women in marriage and women in a relationship in the nature of marriage under the Act. The contention reproduced the essentialist ideas of womanhood reinforcing the gaze of public morality, that the rights of a legally wedded wife were morally more legitimate than the other women in unmarried marital situations. The rights of women of the two categories – as married women and unmarried women – were juxtaposed to each other in a way as if one’s claim to right to protection was eclipsed by the other’s claim. The Court in its decision took a progressive turn and vindicated that every woman irrespective of the status of her relationship with the perpetrator has an inalienable right to a violence-free home. The Court spelled out that the intent of the Act was not to derogate the sanctity of marriage but to uphold domestic violence as violation of the right to equality. This avant-garde judgement established two important prescripts: first, the perpetrator cannot claim immunity because he is in a valid marriage with the aggrieved and second, law itself recognized the social reality of live-in relationships or relationships akin to marriage despite their de-recognition as an Indian cultural ethic. The third landmark judgement dwelled upon the legalities of granting maintenance to women in nature of marriage. D. Velusamy v D. Patchaiammal engaged with the idea of relationship of marriage and relationship in marriage.4 The court illustrated that women in both types of relationship have rightful entitlement to be beneficiary under S. 125 CrPC. Drawing from the practice of common-law marriage the court laid down the verifiable test for relationship in the nature of marriage to qualify for the threshold assertion of rights. The indeterminate distinctness of live-in relationship from relationship in the nature of marriage was explained by the Court so as to exclude many women in the live-in relationship from the ambit of PWDVA. It held: Relationship in the nature of marriage is akin to common law marriage to the effect that: (a) The couple must hold themselves out to society as being akin to spouses, (b) They must be of legal age to marry, (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. Common Law marriage require although not being formally married must also fulfill the above requirements. In our opinion relationship in the nature of marriage under the 2005 Act must also fulfill the above requirements and in addition the parties must have lived together in a shared household as defined in the Act.

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Anita Tagore Merely spending weekends together or a night stand would not make it a domestic relationship.5

The risk predicted was that bigamous relationship without any civil or criminal liability would augment women’s vulnerabilities. The centrality of women’s agency in marriage or akin relationship was overlooked in law making and subsequent judicial interpretation. Gendered stereotyping of the binary of the good woman/good wife versus evil woman/immoral woman is a misogynist ideology that structures the inequalities in the public spaces of law and at hostile home spaces. The protection of the good woman was essentially more important for the survival of the cultural myth that promotes patriarchy in the family. A similar tone of justice-deliberation echoed in Indra Sarma v V.K.V. Sarma.6 The contention was whether a woman who was in a live-in relationship with a married man (with a living wife) could be considered to be in a relationship in the nature of marriage. Would she be entitled to the right to maintenance? Invoking public morality to defend non-acceptability of a live-in relationship in the Indian society was a continuing theme of dissidence in this discourse. The Court, relying upon the ‘Velusamy’ test for qualifying for the nomenclatural definition of ‘relationship in the nature of marriage’, further circumscribed it. Now the capacitating guidelines factored in aspects like duration of period of relationship, shared household, pooling of resources and financial arrangements, domestic arrangements of sharing responsibilities, sexual relationship, socialization in public, intention and conduct of the parties to indicate direct or material or circumstantial evidence towards the existence of the relationship. In this case the Court dismissed the claim for maintenance, as the respondent was knowingly in a live-in relationship with a married man and her status was defined as a concubine. The question then is whether a concubine is less worthy a human being. Can domestic violence be legitimized for a concubine? Does justice get graded in this process of identity formation? Does the law then sexually objectify a certain group of citizens in the bargain of rights? Is a concubine by law a second-class citizen in terms of conferment of rights? It is also unfair when the Court positioned one against another for the right to monetary compensation or maintenance, creating the moral dilemma of ‘who gets what’ when in either of the situations, the sufferer is a woman in an abusive relationship. Once again normative subjectivities were deconstructed in such a fashion that justice was informed by a universalizing trend towards morality enforcing attributes of rights. The Court however made a turn towards substantive justice processing in the celebrated judgement of Krishna Bhattacharjee v. Sarathi Choudhury.7

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This case was one of its kind as the Court ruled on the right to stridhan of the estranged wife in the period of judicial separation. The court observed: a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under Section 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property. Clearly this was a milestone in establishing how the Court adds expansive meaning to the classic idea of stridhan as an exclusive resource of the woman contrary to the perverted modern practice where stridhan, being part of dowry, is conveniently used by the husband and his relatives. The Court’s oscillation towards formal model of justice is again seen in one of the most recent judgements where the Court forgoes constitutional infirmity to gender justice in its enterprise to establish gender neutrality. Here, a paradigmatic shift is apparent in judicial adjudication. The deviation is from gender specificity to gender neutrality in the Court’s interpretative jurisprudential rigour. In Hiral P Harsora & Ors v Kusum Narottamdas Harsora & Ors, the unconstitutionality of the definition of ‘respondents’ in the Act was challenged. The court decided to omit ‘adult male’ from the section.8 The impugned section had permitted aggrieved persons to complain against adult male relatives with whom the aggrieved person was in a domestic relationship and against the relatives (male and female) of one’s husband. Portending to reduce domestic violence, this judgement turned into a project that reclaimed gender neutrality in law. It preposterously dismissed the fact that violence is not a gender-neutral phenomenon. It held: it is clear that such violence is gender-neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Section 3, therefore

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The rationale of the Court in favour of deletion was that in the context of the Act there was microscopic difference between male and female, adult and non-adult. The myopic predisposition of the Court was evident, as it failed to affirm the goals of special treatment in Article 15 (3) of the Constitution. Consequentially, the deletion was also inconsistent with Section498A IPC. There will always be a subterranean danger of the Act being used against women rather than the real perpetrators of violence. Violence being structured by inequalities cannot be underestimated. The law would now legitimize a subversion that would undervalue the differential and disproportionate impact of violence on women’s everyday lives.

Unrapability and justice: the paradox of equality Rape is frequently constructed as an act of aberrant lust, pathological sexual desire or isolated sexual deviancy (Baxi 2012). The framework is that of rape as sex and not as political violence, embedded in sexual objectification of women. Efforts of feminists have geared towards the goals of changing the legal definition of rape, increasing the penalties for rape and rendering the terms of rape trials less prejudicial to the raped woman. Rape is no longer understood as a crime that only affects the woman who is raped but also one that causes defilement of the descent group. Rape is an offence of honour and is stigmatic or ignominious for the woman, her family, her clan/community/caste or even her nation in a specific political frame of reference. The Indian context is no different. Some forms of violence are considered to be not so typically criminal in real terms of experience and are marginalized in terms of recognition. One such heinous crime against humanity is marital rape. Marital rape is a common internalized sexual perversion existing as a marital norm and an unprotested fact. Sex is considered to be a woman’s matrimonial duty. It aggravates the daily abuse experience by married women whose husbands claim an absolute right of access to their bodies. Susan Brownmiller argued, ‘if women are to be what we believe we are – equal partners – then intercourse must be construed as an act of mutual desire and not as wifely duty enforced by the permissible threat of bodily harm or of economic sanctions’ (Brownmiller 1975: 381). In India, marital rape is not only legally and socially unrecognized but also disturbingly under-reported. Hindu marriages are sacrosanct. Saptapadi (the seven steps around fire in the marriage ceremony) vows equal promises of respect, care and responsibility. As provisioned in the Hindu

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Marriage Act, conjugal rights are the fulcrum on which rests the very structure of marriage in India. So, when bodily integrity is violated within the critical space of marriage, it is set aside as a matter of the private domain. It is typically a contentious subject tolerated and not intervened in by the state and the community. At the level of socialization, very protest or resistance to such violence is silenced in the name of the sacrosanct marital union. It is looked upon with suspicion, construing half-truth pregnant with seeds of popular and stereotypical myths of false testimony of rape for retribution. There is a historically gendered explanation for criminal immunity for marital rape. A brief outline of history of husband marital immunity can be backgrounded in the early rape laws. It defined rape as an assault similar to property crime against the patriarch of the family, be it father or husband, whose daughter or wife has been dishonoured and defiled. By this logic, a wife is legally sanctioned sexual property of the husband. Thereby, marital rape is an oxymoron. In the seventeenth century, ranging from British common law to Far East, rape manifested a forcible violation of a woman’s chastity or even theft of virginity. In this context the violation of a woman’s chastity by the husband was not considered even as a remote possibility in a marital relationship. An embedded argument of impervious and permanent consent to sexual relationship within marriage found its appreciation in British jurist Chief Justice Lord Mathew Hale as early as 1736. He ruled, ‘the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract’ (Hale 1971: 629). The paradigm shift in the discourse is visible in the twentieth century. There is a definite move towards a more inclusive and expansive understanding that is premised on Western conceptualization of individual autonomy and liberty. The cleavage between the private and public spheres is considerably bridged when such women’s abuse within marriage is no longer an agenda of the private domain but a matter of rights violation. International instruments have facilitated such orientation to be adopted by governments of the world. The world view on human Rights saw light in the Declaration on the Elimination of All Forms of Violence against Women. It was adopted by the General Assembly of United Nations on 20 September, 1993. Article 1 defines violence against women as meaning any act of gender-based violence that results in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. Article 2 says violence against women encompasses (a) physical, sexual and psychological violence occurring in the family, including battering,

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sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation. Clearly, this human rights instrument can be the foundation for a fundamental framework to develop an engendered liberal space for enactment of more gender-sensitive laws related to violence against women. However, the gender travel has been slow in the developing world. The colonial experience has influenced the way institutions are structured and function. Most developing countries in South Asia are still anchored in colonial laws for rule-making and rule-adjudication functions of the state. The political culture also internalizes the moribund colonial essence to the extent that radical amendments are an elusive reality. The continuum of colonial legal understanding is evident in the adjudication of rape cases. When it comes to marital rape there are some broad characteristics apparent in the general construction of the issue. First, the Indian law relies heavily on the special legal status of husband and wife as one. This united personhood is attained when a woman is incorporated into the person of the husband after marriage. This creates space for negating marital rape as a legal fiction. Second, consent which is a central feature of the institution of marriage is assumed to be permanent and irrevocable. It reinforces the idea that women consensually enter into sexual relation with their husbands. Also upon marriage women willingly give up their entitlement to resist sexual relation with their husbands. Third, the objective assessment of veracity of the testimony is considered to be inherently problematic in a marital rape situation. Lack of evidence to disprove consent concludes in reasonable defence in favour of the husband. Such constraints urge the need to reconceptualize marital rape as a legal category for determining criminality and recognizing the possibilities of individual autonomy and consent in intimate marriage relation. Does marital rape itself sustain gender inequalities in marriage? And more importantly what constitutes rape, consent and marriage? The construct of a hierarchy that being raped by an outsider is more a crime than by one’s husband poses an inverted moral dilemma. The legal treatment and response to marital rape in the Indian Court has been oscillating between conflicting pulls and pressures to construct a shared framework of ideology that disclaims and repudiates the possibility of intimate sexual violence within marriage. The internal inequalities of the family have been largely overlooked because the patriarchal separation of the private/natural sphere from the public/ civil realm was contemplated to be irrelevant to the question of justice and political life. Justice in the family and justice in democratic citizenship are juxtaposed as discontinuities in the post-colonial project of the Indian constitutional state.

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Globally, one of the first cases that allowed husband to be charged with rape was in R v Clarke in 1949. Again, in Regina v R (1991) in the House of Lords, Lord Keith of Kenkel categorically admonished marital rape exemption as a common law fiction which had never been a true rule of English law. While sentencing the husband charged with rape upon his wife and actual bodily harm, he concluded that the fiction of implied consent had no useful purpose to serve in the law of rape. In R. v R it was further emphasized: The status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable. Similarly, the High Court in Scotland in the case of S v HM Advocate’ O rejected the substantive rationale of the House of Lords in R. v R and observed: ‘A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule. Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances’.10 The European Commission of Human Rights in C.R. v UK ruled that a rapist remains a rapist regardless of his relationship with the victim.11 In 1983, the Criminal Code provisions that endorsed no criminal liability for marital rape were repealed in South Africa. The criminalization of marital rape in South Africa found statutory recognition in Section 5 of the Prevention of Family Violence Act 1993, which states ‘Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife’. Since 1976, various enactments have progressively abolished marital rape immunity in Australia. In R v L (1991) the Australian High Court in no uncertain terms stated the demise of common law that presumed by marriage a wife gave irrevocable consent to sexual intercourse by her husband.12 The reasons cited were its offensiveness towards human dignity and incompatibility with legal status of the spouse.13 In 2012, a

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majority of the High Court held in PGA v The Queen that there was no presumption of consent by a wife to sexual intercourse in marriage, and consequently, PGA could be found guilty of the rape of his wife committed in 1963.14 Some landmark case law references show how the Court have liberally derecognized the relationship between the accused and the complainant/ proscecutrix in evidencing consent within marriage as a relevant fact in judicial decision making. The scope of implied consent in a marital relationship was dealt with in a Canadian Supreme Court decision in R v J.A. in 2011.15 How the relationship between the accused and the complainant is ineffectual to the nature of inquiry that seeks to establish whether the complainant consented to the sexual activity was the subject matter of the case (Ibid). In South Africa, the legislative intent is apparent in section 56(1) of the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act, which provides that validity of defence against crimes of rape or sexual violation will not rest on marital or other relationship between the perpetrator and victim. The Criminal Law (Sentencing) Amendment Act 2007 which offers minimum sentencing guidelines for rape further creates space for punishment for such acts. S.3 (A) states that: When imposing a sentence in respect of the offence of rape the following shall not constitute substantial and compelling circumstances justifying the imposition of a lesser sentence: (i) The complainant’s previous sexual history: (ii) an apparent lack of physical injury to the complainant (iii) an accused person’s cultural or religious beliefs about rape or (iv) any relationship between the accused person and the complainant prior to the offence being committed. The UN Committee on the Elimination of Discrimination against Women in February 2007 had recommended that India should ‘widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by the women and to remove the exception of marital rape from the definition of rape’. The UNDP Chief, Helen Clark, also expressed concern of India’s status as a defaulter of Sustainable Development Goals on its failure to criminalize marital rape. The Constitution of India assures equitable, inclusive and just entitlements to women. Even internationally India is a signatory to various instruments that commit towards gender equality. The failure to meet international mandates is a political matter. The issue of rape first entered the Indian legislative arena in 1982 during the debates in the Lok Sabha following the anti-rape campaign.

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Marriage is permitted, marriage is good, even if it takes place when it is an early marriage you recognize it as valid and the provision prevents the man from becoming a hermit in the sense that you keep your wife in a cupboard and do not have sexual intercourse with her and she should not have sexual intercourse with you. This is absurd. It is surrender to a spirit which is not really secular. An analogous response echoed again in the Parliament in 2016. This time the debates on marital rape centred on the cultural non-recognition of its presence in Indian society. In a reply to a question in the Parliament in 2016 it was emphasized that the concept of marital rape as understood internationally cannot be suitably applied in the Indian context. It is a complicated issue. The referred analogy was that of a bedroom as a firm private space with nonporous boundaries. Marital home is an impenetrable sanctuary for batterers. The Law Commission in its 172nd report on ‘Review of Rape Laws’ in March 2000 did not recommend criminalization of marital rape. In the post-Nirbhaya context, Justice J. S. Verma Committee in its report on ‘Amendments to Criminal Law’ in January 2013 recommended that marital law exemption should be repealed through amendment. The UPA government set up a high-level committee under the chairmanship of Pam Rajput to assess the status of women after 60 years of independence. This was a welcome initiative, as it was long overdue after the First Report on the Status of Women in 1976. The objective was to recommend meaningful and impactful measures indicating immediate, medium- and long-term action for addressing unequal status of women in India.16 This high-level committee too recommended that as a pro-woman measure, marital rape should be considered an offence irrespective of the age of the wife and the relationship between the perpetrator and survivor. The National Family and Health Survey (2005–06) found that in India 35 percent of women aged between 15 and 49 have experienced physical or sexual violence; this proportion is 40 percent for ever-married women. And 87.5 percent of ever-married women who have experienced violence since the age of 15 have experienced it from their current husband. Eighty-seven percent of spousal violence initiated within 5 years of marriage. Such a modest estimate clearly indicated the pervasiveness of marital violence which also includes marital rape. Cultural non-recognition does not mean its non-existence in India. Feminists have debated the extent to which marital rape and battering are distinct phenomenon. The central point of disagreement is whether marital rape can be segregated from other brutal forms of physical violence. One view questions how penetrative non-consensual sex is more heinous than other forms of domestic violence.

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Table 4.1 Percentage of ever married women aged 15–49 who have experienced sexual violence in the 12 months preceding the Survey, committed by their husband, India, 2005–200617 Types of violence

In the past 12 months

Sexual violence

Ever

Often

Sometimes

Often or sometimes

Any form of sexual violence Physically forced her to have sexual intercourse with him even when she did not want to Forced her to perform any sexual acts she did not want to

10.0 9.5

1.7 1.5

5.5 5.3

7.2 6.9

4.6

0.9

2.4

3.4

Should marital rape be categorized separate from other forms of domestic violence? The second view is that treating spousal rape as a subgroup of domestic violence excludes too many women who experience coercive sex in marriage without accompanying non-sexual abuse. Violence is political in such intimate spaces of relationships particularly because rights are negotiated, renegotiated and forgone at an everyday level. It develops into a materiality in which power is appropriated and legitimized through constant fear and revulsion. This validation of marital rape by family, community and state indicates the systemic squeezing of democratic rights of persons and citizens. In many judicial decisions on rape, the Court has been a discursive space for contesting ideas of morality, sexuality, chastity and honour. Often, where there is a visible vacuum in law like the case of marital rape, the Court does not mobilize law for creative interpretation of rights. Instead on many occasions it has partnered a hegemonic pact with unequal power and systemic domination. Such a fundamental decay in judicial institutions demonstrates the inability of the judges to confront challenges to long-standing social arrangements. The courts have gone a step ahead to privilege the reason of public morality over constitutional morality. In such conditions of democratic impasse, the method of constitutional comparison showcasing a willingness to engage with foreign constitutional practices in the process of constitutional interpretation can be an effective tool in rectifying archaic laws or paving the way for reformist laws. Evolving a democratic design based on dynamic-reflexive forms of comparison could be a way to creatively engage with such grey areas of law. There is brimming tension between individualism and family relationship whenever any right-based approach is invoked. Two fundamental contesting positions emerge. One, family is a unitary entity entitled to protection

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from state intervention. Two, rights of individuals should be protected from state interference in intimate choices and behaviour (Minnow 1988). The question of sex discrimination in the context of unequal relationship of marriage is one such instance of collision in jurisprudence. Gender inscribes pervasive cultural patterns of interpretation and evaluation. The denial of sex in marriage is cruelty in the eyes of law and a valid ground of divorce.18 When in a situation of no sex in marriage the matrimonial relief in the form of divorce is available then why in the case of forcible sex in marriage is there no criminal relief available to the complainant? The centrality of restitution of conjugal rights to the Hindu Marriage Act ensconces the doctrine of ‘unrapability’ of the wife. The only exception of a nuanced stance advocating personal autonomy in choice in the Court was when it observed in T. Sareetha v T. Venkata Subbaiah: ‘A court decree enforcing restitution . . . constitutes the starkest form of governmental invasion of personal identity’.19 Despite the equal guarantee of right to conjugal restitution on to both men and women the court was sensitive about the fact that ‘bare equality of treatment regardless of the inequality of realities was neither justice nor homage to constitutional principles’. The Court also confirmed the possibility of the concurring danger of judicial complicity in marital rape while ‘coercing the unwilling party through judicial process to have sex against the person’s consent’. This interpretation did not stand the test of time. Barely within a year the Delhi High Court asserted that the introduction of the ‘cold principles of Constitutional law’ into the home is like ‘introducing a bull in a china shop’ and ‘will have the effect of weakening the marriage bond’.20 The inappropriateness of judicial invasion in the intimate relationship of marriage was insisted upon. In a different case the court acknowledged the gender neutrality of Section 9 of Hindu Marriage Act as either husband or wife could petition for decree of restitution.21 The impact of the provision on men and women, even in terms of enforcement, was unequal. As a result, this remedy works in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife. By treating the wife and the husband who are inherently “unequals” as equals, Section 9 of the Act offends the rule of equal protection of laws. For that reason, it should be struck down as violative of Article 14 of the Constitution. A formalistic understanding of equality coupled with an equal protection guarantee could possibly be the vanguard for substantive reconceptualization of rights. In State v Vikash the Court interrogated the legalities of sexual intercourse after solemnization of marriage and dismissed the culpability of the

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possibility of forcible intercourse against the will of the prosecutrix. It held: ‘the prosecutrix and the accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused’. The legal status of being a married couple along with corresponding false consciousness of implicit consent circumscribed the right of a woman to dignity and privacy. It is a situation where the right to bodily integrity and thereby personal autonomy becomes a non-negotiable object. The social regulation of sexuality with the assistance of law is an age-old arrangement to perpetuate patriarchal power domination. The refusal to acknowledge the non-compoundable effect of violence on the wife’s psyche reflects the reprehensible patriarchal norms and attitudes of the Indian society. The legitimization of use of force and intimidation for smooth functioning of the familial arrangement only accentuates the power of patriarchal domination. Why is such settlement not opposed? Paradoxically, the court too escapes from using any innovative stance of interpretation to step out of these patriarchal confines. While there is no judicial mistrust on the settlement principle in a marital rape situation, the courts have differentially adjudicated in rapes outside marriage. While dealing with imposition of sentence for rape in State of M. P. v Madanlal, the Court invalidated any conception of compromise.22 The analogy of the body of a woman with the temple was the context of the honour narrative. ‘There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner’. The determination to stay away from the subterfuge to adopt a soft/liberal approach towards mediation was regarded as thoroughly and completely sans legal permissibility. A resonating decision on compromise arrangement for rape victim was found in Shambhu and Another v State of Haryana.23 A three judge bench questioned ‘genuine consent’ when the prosecutrix opted for compromise and settlement with the accused. Often in such cases consent can be constructed, manipulated and concocted under compelling circumstances and life experiences misconstruing the matrix of justice. There is a lack of a holistic framework for understanding discrimination in conjugal relationships. One dynamic method of analysis could be the strategy of dissociation. The disaggregated application of the law is a manifestation of the strategy of jurisprudential dissociation (Kannabiran 2012: 346). This strategy consists of interlocking of constitutional interpretation and practices and performances of governance (Baxi 2004: 55n1). In order to break the cycle of interpretative disaggregation and disassociation

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it would require a radical redefining of sex and its contexts. A radical constitutional interpretative tradition along with intersectional jurisprudence can signal gender equality in the discourses on discrimination.

Conclusion Domestic violence and marital rape are graphic representations of gross violation of human rights. A close review of court judgements is an exposition of the sexual and gendered distribution of legal entitlements despite the tall claims of the constitutional mandate towards equality. There is a systematic circulation of vilifying cultural attitudes in legislative and judicial decision-making processes in India. There are gendered presuppositions about criminality and justice. Theoretically, it is apparent that at one hand non-normative sexualities are marginalized and debased (e.g. rights of homosexuals); on the other hand within normative hetero-sexualities women are hierarchized as lower in position and entitlements to men. The Court has repeatedly reiterated the pulse of public morality that has buttressed multiple axes of intersecting discrimination. The popular jurisprudential ideologies of constitutional morality and the legislative intent of ‘justness’ often trail behind when a matter of the private domain (like marital rape or domestic violence) is the subject of litigation. Such discontinuities present the moment(s) of crisis of democracy in a progressive constitutional state. Any critical engagement with law is more than just symbolism. Sometimes law may not be a useful tool for achieving significant social reform on the behalf of disadvantaged groups owing to limited enforcement powers of the courts and the limited resource capacities of the disadvantaged groups. Yet the power of law operates insidiously at the microlevels of communities. Also its operation is not restricted only to juridical regimes. In the era of expanding rights consciousness, the courtroom is as much the centre of citizen attention as the voting booth.24 The justice system itself gives meaning to the categories of gender. Thus, the fortification of rule of law in the process of constitutional interpretation is necessary to move towards democratization of law. A strategic judicial decision-making model rooted in rationality that allows the court to give a statute an expansive meaning using a dynamic interpretative method can be more inclusive and equal. Gender responsiveness in the judicial regime can enhance its capability to address the normative experience of multiple axes of discrimination. Anti-discrimination experiences can catalyze the development of new strategies to evolve a conception of justice as broad and capacious. Inclusive re-imagination of democratic citizenship

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and state must assimilate non-discrimination and right to liberty in the everyday experience of law. A paradigmatic turn should be towards a positive ethics willing to engage with contemporary transformations with creativity and courage. The possibilities of counter-systemic agency and change can influence the judicial mood to reinvent constitutional democratic traditions of India.

Notes 1 An Open Letter to the Chief Justice of India, (1979) 4 SCC (Jour) 17.ss. 2 S. R. Batra v Taruna Batra, AIR 2005 Delhi 270, 116 (2005) DLT 646, I (2005) DMC 282, 2005 (79) DRJ 717. 3 Aruna Pramod Shah v Union of India, WP(Crl.) 425/2008. 4 D. Velusamy v D. Patchaiammal Criminal Appeal Nos. 2028–2029 of 2010 @ SLP (Crl) 2273–2274/2010. 5 Ibid. 6 Indra Sarma v V.K.V. Sarma, Criminal Appeal No. 2009 of 2013 @ SLP (CRL) NO.4895 OF 2012. 7 Krishna Bhattacharjee v. Sarathi Choudhury, Criminal Appeal No. 1545 of 2015 @ SLP (CRL) No. 10223 of 2014. 8 Hiral P Harsora & Ors vs Kusum Narottamdas Harsora & Ors. 9 Ibid. 10 1989 SLT 469 at p. 473, a passage cited by the House of Lords: [1991] 3 WLR 767, 771–2. 11 C.R. v UK ECHR 22 Nov. 1995. 12 R v L [1991] HCA 48; (1991) 174 CLR 379 at p. 390 per Mason CJ, Deane and Toohey JJ. 13 R v L [1991] HCA 48; (1991) 174 CLR 379 at p. 402. 14 (2012) 245 CLR 355. 15 [2011] 2 SCR 40, para 47. 16 Report of High-level Committee on the Status of Women in India at http://wcd.nic.in/sites/default/files/Vol%20I.compressed.pdf (accessed on 10 May 2017). 17 National Family Health Survey (NFHS-3), 2005-06, India, Volume 1. 2007. Mumbai: International Institute for Population Sciences, www.Rchiips. org/nfhs/NFHS-3%20Data/Vol1/Chapter%2015%20Domestic%20 violence%20(468k).pdf (accessed on 10 May 2017). 18 In many cases like Neelam Sanjay Chaurasia v. Sanjay Hanuman Prasad Chaurasia, Bombay High Court and Shashi Bala v Rajeev Arora1 DMC 721. Delhi High Court have conceded sex to be the foundation of marriage. The contention of many judgments of the Court has been that the denial of sexual intercourse without reasonable amounts to cruelty. 19 T. Sareetha v. T. Venkata Subbaiah AIR 1983 AP356. 20 Harvinder Kaurv Harmander Singh Choudhry AIR 1984 Delhi. 21 Saroj Rani v. Sudarshan Kumar. AIR 71. 1984.1562 SC. 22 State of M.P. v Madanlal, Criminal Appeal no. 231 of 2015. 23 Shambhu and Another v State of Haryana.2014. 13 SCC 318. 24 For details see Schudson, Michael. 1999. The Good Citizen: A History of American Civic Life. Cambridge, Mass: Harvard University Press.

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Bibliography Bandyopadhyay, Sibaji. 2007. ‘Approaching the Present: The Fire Controversy’, in Brinda Bose and Subhabrata Bhattacharyya (eds.), The Phobic and the Erotic: The Politics of Sexualities in Contemporary India. London, New York, and Calcutta: Seagull Books. Baxi, Pratiksha. 2000. ‘Rape, Retribution, State: On Whose Bodies?’, Economic and Political Weekly, 35(14): 1196–1200. Baxi, Pratiksha. 2012. ‘Rape Cultures in India’, Outlook, December 23. Baxi, Upendra. 2004. ‘The (Im)possibility of Constitutional Justice: Seismographic Notes on Indian Constitutionalism’, in Zoya Hasan, E. Sridharan, and R. Sudarshan (eds.), India’s Living Constitution: Ideas, Practices, Controversies. New Delhi: Permanent Black. Brownmiller, Susan. 1975. Against Our Will: Men, Women and Rape. US: Ballantine Books and Random House. CEDAW. 2007. Concluding Comments of the Committee on the Elimination of Discrimination against Women: India, 37th session, January 15–February 2, www.un.org/womenwatch/daw/cedaw/cedaw37/concluding commentsAU/ India_Advance%20unedited.pdf (accessed on 10 May 2017). Douzinas, Costas, Ronnie Warrington, and Shaun McVeigh. 1991. Postmodern Jurisprudence: The Law of Text and the Texts of Law. London and New York: Routledge. Fineman, Martha. 1992. ‘Feminist Theory in Law: The Difference It Makes’, Columbia Journal of Gender and Law, 2(1): 1–23. Hale, Sir Matthew. 1971. Historia Placitorum Coronae. London: London Professional Books, Vol. 1629. HLA Hart. 1955. ‘Are There Any Natural Rights?’, Philosophical Review, 64(2): 175–191. Reprinted in Waldron, J. 1984. Theories of Rights. Oxford, UK: Oxford University Press. Jethmalani, Ram. 1983. LS Debates. 14–15. Kannabiran, Kalpana. 2012. Tools of Justice: Non-Discrimination and the Indian Constitution. New Delhi: Routledge. Kannabiran, Kalpana. and Vasanth Kannabiran. 2002. De-Eroticising Assault: Essays on Modesty, Honor and Power. Calcutta: Stree. Kumar, Radha. 1989. ‘Contemporary Indian Feminism’, Feminist Review, 33(Autumn): 20–29. MacKinnon, Catherine. 1987. Feminism Unmodified. Discourses on Life and Law. Cambridge: Harvard University Press. MacKinnon, Catherine. 1989. Towards a Feminist Theory of the State. Cambridge: Harvard University Press. Menkel-Meadow, Catherine. 1988. ‘Feminist Legal Theory, Critical Legal Studies and Legal Education or “the Fem-Crits Go to Law School”’, Journal of Legal Education, 38: 49–66. Menon, Nivedita. 2007. Sexualities. New Delhi: Zed. Minnow, Martha. 1988. ‘We, the Family: Constitutional Rights and American Families’, in David Thelen (ed.), The Constitution and American Life. Ithaca, NY: Cornell University Press.

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Samaddar, Ranabir. 2004. ‘Colonial Constitutionalism’, Bayan: Constitutional Evolution, 2(July): 13–28. Schudson, Michael. 1999. The Good Citizen: A History of American Civic Life. New York: The Free Press. Smart, C. 1989. Feminism and the Power of Law. London: Routledge. Weisberg, D. Kelly. 1993. Feminist Legal Theory: Foundation. Philadelphia, PA: Temple University Press.

5

Human rights, climate change and climate justice Brooke Ackerly

Global warming and extreme weather conditions may have calamitous consequences for the human rights of millions of people . . . ultimately, climate change may affect the very right to life. – Kyung-wha Kang, UN Deputy High Commissioner for Human Rights (Human Rights and Equal Opportunity Commission 2008: 1)

Climate change will have varied impacts on human rights among and within countries. To be clear, climate change will cause a range of climate change effects – including heatwaves, drought, loss of biodiversity, extreme rains, flood, coastal erosion, soil erosion, sea-level rise and cyclone destruction. These climate change effects will have impacts on human rights through direct exposure, indirect exposure, and social, economic and political disruptions. In some places, climate change effects may improve people’s lives. In others their impacts on human rights will be catastrophic. This chapter is anthropocentric, focusing on the catastrophic impacts of climate change effects on the human rights of humans and what this means for how we should think and talk about human rights in India, particularly as these relate to the human rights and responsibilities of Indians. Due to its size, varied geography and variations in population density, infrastructure, agriculture and urbanization, many parts of India are already experiencing some of the severe effects associated with climate change and many more will experience these in the future, though Indians with relative social, economic and political privilege may be able to avoid the human rights impacts of these effects. The country is anticipating the climate change effects affecting safe drinking water and water for irrigation, food, shelter, health, livelihoods and the loss of or deterioration in the quality of life, family and community. All of these are human rights. Moreover,

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the human rights impacts of anticipated climate change effects in India interact with background conditions. The social inequalities of caste and gender constrain Indians’ capabilities to access and utilize resources (Roy and Venema 2002: 78). Poverty, livelihood options and age affect exposure to the human rights impacts of climate change effects. Globalization of commodities markets exposes agricultural labourers and small farmers to economic forces beyond their control (IPCC et al. 2007: 69, 71) and even constrains their ability to anticipate the effects of climate change on their income (Ackerly 2018: chapter 1). In sum, the human rights impacts of climate change effects are not merely in their deprivation or decline but also in the social, economic and political constraints on the ability of people to respond to or participate in the planning for the effects of climate change. While it is tempting for those of relative privilege – governments, corporations and philanthropists – to address the challenges of climate change as matters of future distributions of entitlements, such an approach underutilizes the normative theory of human rights explicit in the political agreements of the Universal Declaration of Human Rights and subsequent agreements. These emphasize the social, economic and political underpinnings of rights enjoyment (Ackerly 2011, 2017, 2018) Being explicit that respecting human rights entitlements means securing their enjoyment, I argue that the implications of India’s human rights concerns related to climate change require an enjoyment approach to human rights and responsibilities for climate change. This chapter sets out the political implications of this insight.1

Varied impacts of climate change in India In order to understand the effects of climate change on human rights impacts we need three pieces of information:2 1 2

3

the effects of climate change on the environment, the anticipated effects of climate change on human rights through direct exposure, indirect exposure and social, economic and political disruptions and the impact of these on human rights enjoyment.

In its comprehensive review of the literature on climate change effects on people, the Intergovernmental Panel on Climate Change (IPCC) (2007) outlines the anticipated effects of climate change on the environment of India: heatwaves, drought, loss of biodiversity, extreme rains, flood, coastal erosion, soil erosion, sea-level rise, and cyclone destruction. These have impacts on human rights to water, food, shelter, health, livelihoods, lives

Human rights, climate change and climate justice 137 and communities through direct exposure, indirect exposure, and social, economic and political disruptions, though in many areas it is difficult to disaggregate these. Finally, these human rights impacts may be sudden or slow due to a combination of background conditions and the nature of the change and its impact on Indians’ capabilities to access resources making it difficult to discern whether background conditions or changing background conditions have contributed to the human rights impact of climate change effects. In this section, I review the climate change effects on those human rights impacts anticipated in the IPCC report, providing the data that sets up the need for a human rights enjoyment approach to human rights and responsibility. I emphasize the ways in which the human rights impacts are so intertwined with upstream background social, economic and political conditions and disruption of social, economic and political conditions.

Anticipated climate change effects The IPCC anticipates that with climate change India will experience extreme weather events including hot days, cyclones and heavy and unseasonable monsoon storms in addition to prolonged conditions together contributing to heatwaves, drought, loss of biodiversity, extreme rains, flood, coastal erosion, soil erosion, sea-level rise, and cyclone destruction. India is expected to experience heatwaves and an increased number of hot days and drought (IPCC et al. 2007: 396, 476). Due to long dry periods and decreased rainfall in North-East India (IPCC et al. 2007: 234, 472, 475, 476) drying up of wetlands has contributed and will continue to contribute to deterioration of ecosystems including decreased wetland biodiversity (IPCC et al. 2007: 477), which affects sources of protein and nutrition. It will also increase in extreme rains in the North West during monsoon (IPCC et al. 2007: 475), inland flooding, and increased coastal flooding (IPCC et al. 2007: 414) due to a combination of coastal erosion and sealevel rise. All of these contribute to soil erosion. India is expected to experience sea-level rise and higher water levels during extreme conditions such as seasonal flooding, seasonal high tides and storms (IPCC et al. 2007: 326). Sea-level rise pushes saline estuaries further inland and is projected to increase the number of Indians affected by coastal flooding and inundation (IPCC et al. 2007: 319) as well as increasing the number of Indians vulnerable to storm surges in the case of severe weather (IPCC et al. 2007: 484). Finally, there has been an increase generally in damage from cyclones (IPCC et al. 2007: 473), which is expected to continue with climate change.

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The import of these climate change effects for human life depends on the background physical environment as well as social, economic and political conditions that expose Indians to these effects. Within India, there is significant variation in climate change effects by context.

Anticipated consequences for human rights In this and the next subsection, I lay out the anticipated human rights consequences of these climate change effects. Climate change effects will impact human rights through direct exposure, indirect exposure and social, economic and political disruptions. While for certain climate effects, it is difficult to disaggregate these effects, it is important to be aware of all of these potential mechanisms of climate change impact less we underestimate the extent of the consequences of climate change for Indians and their human rights. In particular Indians will likely experience increases in human rights impacts related to water, food, shelter, health, livelihoods, lives and way of life due to pressures to migrate or to accommodation of new immigrants. These can be interconnected. Moreover, some of the anticipated catastrophic effects of climate change are already having an impact on many Indians. Though their numbers will grow, for those affected now, the catastrophe is now. As a result of heatwaves, drought and extreme rains, India anticipates a decline in water availability for drinking and irrigation. The reduction in access to fresh drinking water (IPCC et al. 2007: 59) on top of existing problems in water quality due to arsenic, fluoride and salinity in the ground water (IPCC et al. 2007: 179, 483) creates immediate health stress and pressure for migration. Loss of water for irrigation systems due to runoff during intense rains (IPCC et al. 2007: 484) and shortage in water supply for irrigation due to changes in glacial melt and reduced annual water ‘storage’ in the Himalayas due to declines in precipitation there (IPCC et al. 2007: 187, 484, 493) creates pressure on agriculture. Irrigation demands are expected to rise (IPCC et al. 2007: 192), but gross per-capita water availability is expected to decline, and India is expected to reach a state of water stress by 2025 (IPCC et al. 2007: 481, 484). Due to shortages of water for irrigation, rice, wheat and maize yields are anticipated to decline, particularly of non-irrigated crops (IPCC et al. 2007: 297, 480). Damage to perennial industrial agriculture like coconuts from cyclones will be greater than that to annual agriculture (IPCC et al. 2007: 288). Shelter is expected to be damaged by destructive cyclones and floods. Moreover, the need for air conditioned shelter is expected to increase due to heatwaves and the increase in the number of days of life-threatening heat.

Human rights, climate change and climate justice 139 Heatwaves will also affect health. Additionally, floods will contribute to flood-related increases in diarrhoeal disease (IPCC et al. 2007: 399). Drought affects diet in the form of overall consumption as well as nutrient deficiencies; dietary deficiencies decrease physiological resilience in the face of disease and illness (IPCC et al. 2007: 399). Due to climate change, malaria is expected to move to higher latitudes and altitudes and to have a longer transmission window (IPCC et al. 2007: 395, 408). (Of course, there will also be some locations that may experience a reduction of malaria for similar climate reasons; IPCC et al. 2007: 487.) The incidence of dengue fever and the size of the population exposed is expected to increase (IPCC et al. 2007: 487). When the effects of climate change are extreme and their capacities to respond insufficient, in addition to loss of life, some Indians will also experience a loss of a way of life, of family and of community when those in their family and community die, are displaced or migrate due to climate change effects. Water and food shortages, destruction of shelter and sources of livelihood, reduction in quality of life and capacities to respond to distress due to ill health are all exacerbated by background social, economic and political conditions. They also contribute to social, economic and political disruptions that cause or exacerbate human rights impacts of climate change. In the next subsection, I illustrate these dynamics.

Social, economic and political contributing factors The IPCC identifies a combination of biophysical, technological and socioeconomic conditions that affect people’s capacity in the face of climate change (IPCC et al. 2007: 729). The IPCC utilizes these categories to develop measures in order to study variation in people’s capacity to adapt to climate change (IPCC et al. 2007: Figure 17.12). While the individual capacity to adapt is certainly important, here I expand beyond the IPCC list and emphasize the role these contributing factors have on the human rights consequences of climate change for many Indians. Contributing biophysical factors include soil quality and depth and availability of water for drinking and irrigation. Contributing technological factors include the availability and quality of irrigation, roads and other infrastructure of commerce, communication and transportation. Contributing social, economic and political factors include literacy; gender, caste and other social hierarchies; the availability and consistency of labour opportunities for day labourers, men and women; the extent to which a community has experienced in- or out-migration; changes in land use, whether these have been gradual or sudden and whether these are in response to global or local

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market forces; the extent to which the predominant sources of livelihood are in areas affected by external market forces; and the extent to which the community has inclusive politics of decision making. In this subsection, I focus on the social, economic and political contributing factors. I illustrate the import of some of these related to background conditions and to projected changes in social and economic groups, urbanization, land use, globalization and infrastructure. Climate change effects have different impacts on different socio-economic groups, and members of those groups have different capacities to survive them in ways that do more than merely return their lives to a relative state of deprivation. For example, deaths due to heatwaves are ‘mainly among the poor, elderly and labourers such as rural daily wage earners, agricultural workers and rickshaw pullers’ (IPCC et al. 2007: 478). These are groups of Indians whose capabilities generally, and capacities to respond to distress specifically, are constrained by social, economic and political circumstances of deprivation and inequality that are exacerbated by climate change. For rural Indians, particularly women, survival is dependent on being able to obtain essential resources for life and livelihoods from their environment. Marlene Roy and Henry David Venema argue that the gendered asymmetries in access to healthcare, livelihood options, land and property ownership and responsibilities for housework render women less ‘able to cope with the additional stress and deprivation brought about by climate change’ than men (Roy and Venema 2002: 78). Similar asymmetries affect the ability of Indians in poverty to access air-conditioned spaces to survive the hottest parts of the hottest days and the ability of those who work outside as day labourers to choose the times of day that they work or to choose to leave day labour altogether. Urbanization is a socio-economic process that has a dynamic relationship with climate change effects and a negative impact on the health of those in cities. There is evidence that rural water shortages contribute to rapid urbanization (IPCC et al. 2007: 477); water shortages have also been attributed to urbanization, industrialization and mismanagement (IPCC et al. 2007: 477). With climate change events such as cyclones, crop failure, and water crises and global market events like food crises, urbanization is expected to continue to be punctuated by spikes (IPCC et al. 2007: 491, 729). The dynamics of background social conditions and disruptions in those conditions caused by climate change–related urbanization have effects on health in addition to deteriorations in health due to the background condition of unplanned urbanization which has contributed to the spread of malaria and poor air quality (IPCC et al. 2007: 413, 487). Consider similarly, the background conditions of unplanned urbanization and overcrowding contributes to mental health problems (IPCC et al. 2007: 413).

Human rights, climate change and climate justice 141 Mental health conditions are themselves a problem that curtail capabilities generally and the capability to respond to stress specifically. Moreover, they curtail many Indians’ capabilities to confront the human rights impacts of climate change effects whether these are direct exposures for example to the trauma of cyclones, indirect such as the stress of increased cost of food or social and economic disruption such as changes in livelihood options or migration. Even without mental health distress, these human rights impacts can also cause mental health problems. In addition, mental health problems make service delivery in the face of climate change effects even more difficult. Change in land use due in part to growing preferences for meat sources of protein (and in part due to decline in fisheries) have created new vulnerabilities to climate change effects. Changes in consumption of protein from animal products (like milk and eggs) to animals (meat and poultry) provide the background conditions for the impact of climate change on the climate for grassland, which is expected to shift northward and yet be constrained. Similarly, milk production is expected to be constrained due to reduced rainfall and increase in certain animal diseases (IPCC et al. 2007: 482). Thus, interacting with the background conditions of changing land use, the human rights impact of certain environmental events can include both livelihood insecurity and reduced nutrition. Globalization is another process that constrains some Indians’ adaptive capacities, particularly in the agricultural sector due to the combined effects of trade liberalization and climate change (IPCC et al. 2007: 69, 71). Import competition and fluctuations in commodities prices make the livelihoods of farmers and agricultural labourers vulnerable to market forces and make it more difficult for Indians to adapt to climate change effects on agricultural production. Likewise globalized fisheries are vulnerable to overfishing (IPCC et al. 2007: 719, 729). These economic pressures create a negative feedback loop of declining income sources, conversion of mangroves to shrimp and other aquaculture, leading to decreased biodiversity, which further contributes to declining income sources (IPCC et al. 2007: 335). Another effect of globalization has been the substitution of low-cost imported oils for domestic oil produced from seeds that do not require irrigation (IPCC et al. 2007: 730). Such substitution makes all consumers more vulnerable to global costs and farmers more vulnerable to changes in irrigation availability. Finally, rapid economic growth puts pressure on raw materials (IPCC et al. 2007: 495) at a time when climate change effects are expected to increase the costs of maintaining infrastructure (IPCC et al. 2007: 371). In sum, much of India’s population is expected to experience one or more of the human rights impacts of climate change effects. Whether the

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world understands these as ‘catastrophic’ climate change, for the people of India who are currently affected, these are catastrophic effects. As the effects of greenhouse gas emissions in and accumulating in the atmosphere perpetuate and exacerbate climate change, more and more of the Indian population will experience one or more human rights impacts, and for them and a country that cares about them, the effects will be catastrophic.

Can a theory of human rights accommodate such variety? While it is easy to think of climate change effects as having a negative impact on human rights, it is harder to see why these impacts are human rights violations rather than merely unfortunate deprivations. In some places there will be more drought, in others cyclones. For some industries like construction, climate change will increase demand; for workers in others it will decrease. For many Indians climate change effects introduce uncertainty, but rural Indian women and Indians of other socio-economic and political disadvantage in society will experience relatively more uncertainty. In light of these differences, particularly those that manifest in ways that track socio-economic and political hierarchies, to take on the human rights consequences of climate change effects requires taking on not merely the direct and indirect human rights consequences of climate change effects but also the background conditions, what I have called in Just Responsibility following John Stuart Mill ‘injustice itself’ (Ackerly 2018). With the phrase ‘injustice itself’ I mean to refer to the full range of exploitable power inequalities that create differences in people’s ability to enjoy their rights. This point needs clarification, not only because of the complexity of the impacts of climate change we saw earlier but also because it is possible in English to use the word ‘rights’ to refer to two different though complementary concepts. The first is rights as entitlements, analogous to property. Rights in this sense can be codified in law and secured by access to justice (which can be denied through formal institutions like voting laws or through informal practices like violence or purdah). The second sense is rights as enjoyment. Analogous to capabilities, rights in this second sense are supported and cultivated through their being exercised throughout all aspects of society. The first focuses on formal and informal institutions, the second on the social, economic and political fabric of society. A human rights–respecting society creates conditions not only for securing rights entitlements but also for using those entitlements to build political community increasingly able to undermine the past and future background conditions of exploitable social, economic, political and epistemological inequalities. In this second view we use our human rights to live in political

Human rights, climate change and climate justice 143 community in ways that challenge exploitable inequalities that may prevent us or others from enjoying their human rights.3 This view of human rights may seem more expansive than that with which we are familiar in the human rights conventions and associated practices, but upon examination – an examination that would take me too far afield in this chapter – we see that in fact this understanding is part of our political agreements and institutions of human rights. Fortunately for taking on climate change effects and their human rights impacts, this view entails a political notion of responsibility, one that is not predicated on disaggregating and comprehending all of the aspects of climate change or its impacts on human rights nor on agreeing on the moral basis of our taking individual responsibility for climate change. Instead, this explicitly political account of human rights calls us to take responsibility for injustice itself by transforming our political communities. For taking on the human rights impacts of climate change effects, this means that we do not need first to agree on its human rights impacts, on the role of background social, economic and political conditions in those impacts or on the likelihood that climate change events will cause social, economic and political disruptions. Rather, emphasizing the importance of rights enjoyment in the fabric of society and in our lived experience together means approaching the human rights implications of climate change effects as a matter of lived political theory. How do we want to live together, in our societies and among our societies now and in the future which we expect will be devastated by climate change unless we take up responsibility not only for mitigating the trend towards catastrophic climate change but also for building political community able to face such change without the apocalyptic predictions of war? To restate the question in light of the subject of this volume: how do Indians want to live together in India and in political community now and into the future understanding that some Indians are currently facing the human rights impacts that are anticipated to exacerbate with climate change effects, anticipating that such catastrophic impacts on human rights will affect even more Indians in the future and knowing that those in poverty and other conditions of socio-economic inequality will be most likely to bear the brunt of these impacts? In this sense, the rights enjoyment understanding of human rights is at once an account of human rights and responsibilities. As Gandhi articulated in his letter to the drafters of the Universal Declaration of Human Rights, I learnt from my illiterate but wise mother that all rights to be deserved and preserved came from duty well done. Thus the very right to live accrues to us only when we do the duty of citizenship of the world. (1947)

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What does it mean today for Indians to manifest responsible citizenship today for the future? Of course, in one sense, we can understand health, education and security as entitlements; yet it is Indians’ ability to be secure in those rights that gives them their value. That is, when Indians enjoy health and not merely have access to healthcare under every day conditions but are secure in their health regardless of exposure to disaster or changes in the environment that render them more liable to be sick, then they enjoy the right to health. Arguably, for health to be an meaningful right, it must be enjoyed regardless of the dynamics of context, but certainly under the dynamic conditions of climate change health is a meaningless entitlement without the conditions for its enjoyment. As with health, so with every other right threatened by climate change, to enjoy human rights and to be secure in their enjoyment requires understanding each right as in its essence depending on the context supporting the enjoyment of the right into the future. A context of exploitable social, economic and political inequalities does not enable rights enjoyment. Because the problems of climate change violate the ability to enjoy rights into the future not just to have entitlements today, the present and the future are dependent on what we do today. Without hyperbole, the summary of climate change effects on the human rights of many Indians will be catastrophic if the world including India continues with business as usual.

What should we do? In Just Responsibility, I set out a political theory for taking responsibility for human rights enjoyment (Ackerly 2018). This political theory is a normative theory of how to take responsibility, not a theory of assigning responsibility. There are five principles to how we take responsibility for injustice itself in a way that enhances rights enjoyment (not merely redresses rights violations). These five principles guide our taking responsibility in a way that promotes human rights enjoyment by transforming the background social, economic and political conditions and being attentive to the disruptions in those conditions caused by climate change effects. Because the background conditions can be mitigating or exacerbating factors in the human rights consequences of climate change effects, as we take responsibility for climate change, we also are taking responsibility for the kind of political community that is part of just background conditions, for the mechanisms of accountability that supports just background conditions and for the modes of leadership that cultivate just background conditions and ongoing commitment to them.

Human rights, climate change and climate justice 145 The first of the five principles for taking responsibility in a just way is utilizing intersectional analysis. While an entitlement approach to providing healthcare in the face of climate change effects requires service delivery, an enjoyment approach means attending to the social, economic and political background conditions that reduce some people’s capacity to benefit from those services. Consider, for example, the differential impact of heatwaves on certain groups based on access to air conditioning, age and occupation. As we saw earlier, people in poverty, older people, and labourers with physically strenuous outdoor jobs are relatively more vulnerable to heatwave impacts. Moreover, they have little capacity to address these impacts, as their vulnerability is itself a function of the background conditions and their limited capacity to change their circumstances. Attending to intersectionality in the face of heatwaves is one of the more difficult challenges as it means transforming the political economy such that more people can afford air conditioning and doing physical work during a heatwave is not necessary for basic livelihood. While India is not a major contributor to historical greenhouse gas emissions nor even with increases in energy use will it soon become one of the highest per-capita emitters, there is no service delivery mechanism that will save the lives of people in poverty, older persons, and outdoor physical labourers in the context of the prolonged high-temperature heatwaves. India’s most effective politically and financially viable strategy given these background conditions is to work diligently on international climate negotiations and domestic policies that decrease or maintain emissions while enhancing availability of low-emitting energy sources for fans and lighting physical labour and education during the cooler hours of the day. The second principle is making cross-issue connections. As we saw, climate change effects have multiple human rights effects. Heatwaves affect health and livelihoods. Together heatwaves, drought and floods affect water availability – which affect health and livelihoods. Of course, improving gender inequality would enhance women’s capabilities to respond to these effects and to access service delivery themselves (Roy and Venema 2002). However, as we saw, given the scale of the impact of climate change effects on people’s human rights, strengthening people’s ability to ‘adapt’ to climate change individually when the effects on their physical environment are expected to be so massive and affecting so many aspects of their life is naïve. Again, the first emphasis has to be on international and national policies that reduce the likelihood that climate change effects and have the most catastrophic human rights impacts on the most Indians. The third principle of just responsibility is building capacity for self-and group advocacy. This principle includes the value commitment to fostering individual capabilities that we see emphasized in the IPCC study of

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vulnerability and in much UN-supported focus on human rights enjoyment. In addition, it recognizes that one of the most dear capacities is the capacity to participate in political decision making effectively. To do so Indians4 need the skills and confidence of self-advocacy and thus the opportunities to develop these, as they are political qualities, not innate capacities with which humans are born. Moreover, capacity building is not a service that can be delivered; it has to be cultivated through opportunity and experience. However, we can take a capacity-building approach to service delivery. When engaged in service delivery of water, health and food, for example, capacity building entails doing so in ways that create opportunities to develop skills of self-advocacy and advocating on behalf of others. Given the international and national policies necessary to address the prospects and consequences of catastrophic climate change, Indians affected need the tools not only to advocate for service delivery to themselves but to support Indian policies that will mitigate the scale of catastrophic climate change effects on human rights of Indians. By building capacity for self- and group advocacy we develop political communities with the mechanisms to hold each other and political leaders accountable for avoiding large-scale catastrophic impacts of climate change. Further, capacity building for advocacy cultivates the leadership capacities necessary to fill the void of leaders unwilling or unable to take on the prospects of the catastrophic human rights consequences of climate change on Indians. The fourth principle is building community through connected activism. Connected activism is a way of engaging in those actions whom we can. We each have different abilities and knowledge related to ways of taking responsibility for the human rights impacts of climate change effects. These stem from our particular position of privilege or lack thereof, from our position of relative experience in one area or another, and from our epistemology of the extent ways in which climate change effects will likely be exacerbated by certain social, economic, or political background conditions or will likely be disruptive of certain social, economic or political conditions. With connected action, we act from what we know in ways that connect our knowledge and action to the knowledge and action of others, thus contributing to a web of action that has political import beyond our individual capacities. The fifth principle is ongoing learning and commitment to political responsibility. This is a practice of social criticism that we direct at our own actions and epistemologies as well as the background conditions of our political communities, mechanisms of accountability and modes of leadership. Ongoing learning and commitment to political responsibility means looking beyond our daily or near-term experience and its intersections, issues, capacities and actions to anticipate how these may be contributing

Human rights, climate change and climate justice 147 to whether the social, economic and political background conditions of our political communities, mechanisms of accountability and modes of leadership are on a path towards mitigating the prospects of catastrophic climate change effects or merely of mitigating their impacts on some people. Given the scale of the catastrophe that many in India are currently experiencing and the prospect of the growing scale and scope of that catastrophe for others living today and for those born today, our commitment to ongoing learning and commitment to political responsibility may be our most profound individual moral commitment of our time. Given the Indian government’s ambivalent relationship to climate change – sincere concern combined with a commitment to continuing growth on a business-as-usual path – ongoing learning and commitment to political responsibility is certainly the most pressing political challenge of our time.

Conclusion: political community, accountability and leadership for human rights and climate justice Of course, from the perspective of how much India has contributed historically to the greenhouse gas emissions currently in the atmosphere, India as a nation is not a major contributor to climate change. Moreover, given the role of colonialism in curtailing economic development in India until Independence, in one view, India is not even responsible for its background conditions, at least not some of its social, economic and political background conditions. And yet, to make such an argument, even within India would be to erase from visibility all that Indians and India is and has done as an independent nation. Such decolonial criticisms of the colonial legacy should tread lightly on recognizing the role of India’s political leadership (and leadership changes) over the decades since independence that have set the course of India’s present. From the perspective of per-capita emissions of greenhouse gases, starting from such low emissions per capita, India may be ‘entitled’ to increase its per capita emissions as it develops. Such an argument would do well to emphasize that such increases in percapita emissions reflect increases in energy use that benefit the most poor – those currently responsible for the least of India’s emissions, rather than the energy use of those already most affluent and consuming more than India’s average per-capita emissions. Indians, particularly those politically and economically privileged in India, are not those most vulnerable to the catastrophic effects of climate change nor their human rights impacts. As a citizen of the United States, which has contributed disproportionately to greenhouse gas emissions through historical emissions and through per-capita emission, I recognize that suggesting what India and Indians should do to take responsibility for the impeding effects of climate change

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and their human rights impacts in India may seem itself un unreflective and politically problematic enterprise. I write this essay (and not an essay on human rights, climate change, and climate justice in the US) for this volume on human rights and human rights discourse in India for two reasons. First, the human rights impacts of climate change effects pose a critical and catastrophic threat to many people living in India today and to many more into the future as the scope and scale of climate change effects grows without reduction in greenhouse gas emissions and stocks. Second, the dynamics of background and disruptive social, economic and political conditions illustrate the import of distinguishing between the narrow considerations of human rights as entitlements and the more encompassing understanding of human rights as enjoyment. The broader political implications of the latter are essential normative considerations and render distinguishing between the two an important part of human rights discourse. The scope and scale of human rights impacts of climate change effects will affect the US as well. Moreover, the US faces an additional set of normative and political considerations for taking responsibility for climate change that have to do with the impact of its political economy on global greenhouse emissions. Due to the US energy grid, transport sector, and the background structure of our political economy, the historical and future actions of each person in the US have and will contribute disproportionately to global climate change relative to most of the other people in the world.5 We should apply the five principles to our own individual and social, economic and political actions, and we should do so with awareness of the human rights impacts of climate change effects not only on the present and future population of the US but also in light of our present and future consumption on the world. This requires an exposition well outside the scope of this chapter. Within the scope of this chapter, it is appropriate to conclude by emphasizing that the insights for human rights impacts of climate change effects and of India’s and Indians’ ways of taking responsibility for these provide insights that apply beyond India. Whether we intend to or not, when we take responsibility, our actions have impacts on the shape of our political community, the mechanisms of accountability and the kinds of leadership that will take on future challenges. The five principles guide our taking responsibility for the human rights impacts of climate change effects in ways that strengthen political community so that it is a web of political networks able to take on the local, national and international dimensions of human rights impacts. Likewise, they cultivate mechanisms of accountability that are attentive to the ways in which background social, economic and political conditions may contribute to human rights impacts of climate change effects where leaders and political communities are not accountable

Human rights, climate change and climate justice 149 for taking on exploitable inequalities. Finally, the five principles cultivate a broad spectrum of leaders who are not exclusively from elite backgrounds and who may be advocates better attentive to the lived experience of catastrophic human rights impacts of climate change effects.

Notes 1 This chapter extends the grounded normative theory of human rights and responsibilities developed in Just Responsibility to taking responsibility for climate change effects on Indians by grounding this study in the climate change effects and impacts anticipated in India. 2 I develop this argument inspired by the IPCC’s account of the effects of climate change on health (IPCC et al. 2007: 396). The IPCC emphasizes the health aspect of the impact of climate change, so many of my examples relate to health. I choose to rely extensively on the IPCC because of the added layer of review of sources by the scientific and political communities. Much of what I present and discuss here is not in that IPCC model; however, its inspiration is clear. 3 For development of this view see (Ackerly 2008, 2011, 2017, 2017 forthcoming). 4 Of course, all people need these, but for rhetorical emphasis, because ‘people’ can be interpreted as ‘other people’, I refer to ‘Indians’ to emphasize that the decisions Indians make today affect Indians today and into the future. 5 As Shoibal Chakravarty with others has argued, those with relatively more income contribute relatively more to greenhouse gas emissions (Chakravarty et al. 2009). However, in the US and other countries with infrastructure that is committed to certain high-emitting modes of electricity generation and transportation, even those at the lower end of the economic spectrum may contribute significantly to greenhouse emissions relative to those in other countries.

Bibliography Ackerly, Brooke A. 2008. Universal Human Rights in a World of Difference. Cambridge: Cambridge University Press. Ackerly, Brooke A. 2011. ‘Human Rights Enjoyment in Theory and Activism’, Human Rights Review, 12(2): 221–239. Ackerly, Brooke A. 2017. ‘Interpreting the Theory in the Practice of Human Rights’, Law and Philosophy, 36(2): 135–153. Ackerly, Brooke A. 2018. Just Responsibility: A Human Rights Theory of Global Justice. Oxford, UK: Oxford University Press. Chakravarty, Shoibal et al. 2009. ‘Sharing Global CO2 Emission Reductions among One Billion High Emitters’, in Proceedings of the National Academy of Sciences of the United States of America, Princeton University. pp. 1–5. Early Edition. Gandhi, Mahatma Mohandas Karamchand. 1947. ‘A Letter Addressed to the Director-General of UNESCO’, in Jacques Maritain (ed.), Human Rights Comments and Interpretations. UNESCO.

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HREOC (Human Rights and Equal Opportunity Commission). 2008. Human Rights and Climate Change. Australia: HREOC. IPCC (Intergovernmental Panel on Climate Change) et al. (eds.). 2007. Climate Change 2007: Impacts, Adaptation and Vulnerability. New York: Cambridge University Press, www.ipcc.ch (accessed on 15 June 2017). Roy, Marlene and Henry David Venema. 2002. ‘Reducing Risk and Vulnerability to Climate Change in India: The Capabilities Approach‘, Gender and Development, 10(2): 78–83.

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What can human rights add to the fight against corruption? Some lessons from India Mitu Sengupta

Despite growing awareness that corruption benefits the few at the expense of the many and that the poorest and most vulnerable in society are the hardest hit by the problem, policy responses aimed at eliminating corruption often end up unleashing further distress upon the poor. Anticorruption reform typically flows from the ideal of a lean, night watchman state and centres on law enforcement, technical efficiency and minimizing government spending. Cutbacks on social welfare programmes are common, and although their harmful impact on poor people’s lives is often acknowledged, they are seen as the necessary cost of winning the war against corruption. In this chapter, I argue that most anti-corruption initiatives undertaken by the Indian government, including its recent experiment with ‘demonetization’, are examples of how misguided anticorruption reform can serve to deepen existing patterns of exclusionary growth, hurting the poorest and most vulnerable in society. Following a critical review of anti-corruption initiatives proposed or adopted in India, I argue for the merits of adopting a human rights–based approach developing policy responses to corruption. Doing so, I suggest, will bring ethical questions to the forefront of consideration while establishing policy priorities and ensure that the well-being of the least privileged in society is taken as the starting point of all policy. A human rights-based approach to anti-corruption reform requires more circumspection and is thus slower than typical approaches, but it is more likely to lead to fair and sustainable solutions in the long run. Heavy-handed ‘remedies’ that cause unjustifiable hardship for the poor are also more likely to be avoided. While it is acknowledged that serious debate surrounds the theorizing of human rights, it is argued that the concept has enormous political salience and provides a strong basis for building ethical frameworks for policy programming. The practical importance of human rights is thereby highlighted through the study of anti-corruption action in India.

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Corruption and the poor The standard academic definition of corruption is ‘the misuse of public office for private gain’ (see Bardhan 1997: 1321). While this definition focuses, rather rigidly, only on corruption in the public sector, and that too, on bribery alone (see Johnston 2005: 11 for a critique), it is the one that shall be used in this chapter. In India, corruption has always been a lively topic of conversation and debate. Since about 2010, however, corruption has become a salient political issue. In 2011, tens of thousands gathered in Delhi, India’s national capital, to support social activist Anna Hazare’s hunger strike against corruption. In 2014, a major election study found that anti-corruption sentiment was the primary issue in that year’s national election and the main reason why the Bharatiya Janata Party (BJP) won an outright majority in parliament after being out of power for more than nine years (CSDS 2014). In early 2015, a new party, the Aam Admi Party (AAP), won an overwhelming majority of seats (67 out of 70) in the Delhi State Legislative Assembly election on an almost exclusively anti-corruption platform. The rise of corruption as India’s frontrunner political issue has followed at the heels of a series of high-profile corruption scandals involving billions of dollars. These include the bribery-driven allocation of telecommunications licenses in the ‘2G spectrum scam’ of 2011, the graft-infused purchase of a fleet of helicopters in the ‘choppergate scam’ of 2013 and, perhaps most notoriously, the many cases of misuse of power and fraud connected with the 2010 Commonwealth Games. According to Sukhtankar and Vaishnav (2015: 3), the mean scam value in the last 15 years was Rs. 36,000 crores (approximately USD 54 billion), and the median was Rs. 12,000 crores (about USD 18 billion), numbers that the authors justifiably consider ‘eye-popping’. The authors are quick to point out, however, that while the media’s spotlight tends to fall on large ‘scams’ involving billions of rupees, their own calculations suggest that ‘the cost of day-to-day corruption are at least the same order of magnitude, if not higher’ (Ibid.: 2). A particularly tragic effect of routine corruption, Sukhtankar and Vaishnav’s study shows, is reduced effectiveness of public spending on the social sector. They report, for example, that 70 to 80 percent of the National Rural Employment Guarantee Scheme’s (NREGS) labour budget ‘is embezzled before it gets to beneficiaries’ (Ibid.: 20). Their findings are corroborated by various other studies, such as that by Muralidharan et al. (2014), which estimates the annual costs of teacher absence in India to be in the range of Rs. 8,100 to 9,300 crore, and by Niehaus et al. (2013), which suggests that some 75 percent of households

Human rights and the fight against corruption 153 pay bribes to obtain Below Poverty Line (BPL) cards. The larger point captured by these India-specific studies, i.e., that corruption negatively affects social spending on the poor, and by extension, poor people’s lives, is reinforced by the global literature on corruption. A pioneering study on the impact of corruption on social welfare and the distribution of wealth (Gupta et al. 2002) found that one standard deviation point increase in corruption results in an income reduction for the poor of 7.8 percentage points a year. The study suggested that high and rising corruption increases income inequality and poverty through a number of mechanisms, such as lowered economic growth, unjustifiable tax exemptions for the rich and well-connected and reduced levels and effectiveness of social spending. Other studies, such as that by Glaeser et al. (2003), confirmed these findings and indicated that corruption also leads to diversion of scarce public resources from sectors that are important for public welfare, such as health and education, to areas where there are greater opportunities for extorting bribes, such as defence (see Mauro 1998). Almost two decades since these landmark studies, evidence of corruption’s toxic effect on the poor – and the mutually reinforcing relationship between corruption and inequality (You 2015) – continues to mount. In a study surveying the relationship between inequality and corruption across 30 Commonwealth countries, for example, Batabyal and Chowdhury arrive at the following conclusion: ‘It is the poor in society that are often the hardest hit by the effects of corruption, being the most reliant on public services and the least capable of paying the high price associated with fraud, bribery and other forms of corrupt activity to attain these services’ (2015: 51). The poor are more vulnerable to extortion than the rich, the authors find, and have great difficulty holding the rich and powerful to account. Their observations are lent strength by a host of empirical studies, including one by Chaudhury et al. (2006) on absentee rates among teachers and health workers in Bangladesh, Ecuador, India, Indonesia, Peru and Uganda. This study found that, on average, about 19 percent of teachers and 35 percent of health workers were absent and that absence rates were generally higher in poorer areas. Furthermore, many small schools and clinics in rural areas were entirely closed due to provider absence. ‘[E]ven these figures may present too favourable a picture’, the authors argue, because their survey covered providers who were simply present in their facilities, not those who were actually working. In India, for example, ‘one-quarter of government primary school teachers were absent from school, but only about one-half of the teachers [present] were actually teaching when enumerators arrived at the schools’ (Chaudhury et al. 2006: 91).

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Ideological underpinnings of the global anti-corruption agenda In the face of damning reports such as those cited, one would expect that every analysis of corruption would begin by seeking insight into how poor people experience the problem and which remedies they would ideally like to see. This is not, however, the starting point of the bulk of policy work on corruption. Rather, the international anti-corruption agenda is borne out of a very different set of priorities. As Johnston indicates (2005: 5), corruption surfaced as a leading issue in the international policy agenda (in the 1990s) primarily because of intensified pressures upon international aid and growing global competition among firms. Thus, the interested parties behind the new agenda were mainly international bureaucrats and employees of transnational corporations. Ideology also shaped the contours of the new agenda. The 1990s were, after all, a time when neoclassical economic thought – with all its antipathy towards the public sector – was still the dominant intellectual force in the international financial institutions and in donor circles more generally. Neoclassical ideas also filtered into developing-country national policy arenas as a result of the IMF and World Bank’s ‘structural adjustment’ lending programmes, through which debt-ridden developing countries were given the opportunity to obtain loans in exchange for assurances that they would implement market-oriented (or ‘neo-liberal’) economic policy reform, such as deregulation and privatization. The international financial institutions also acknowledged the importance of ‘good governance’, however – i.e., healthy institutions that conduct public affairs efficiently and manage public resources well – and fighting corruption was seen as a key element of promoting ‘good governance’. In light of its connection with the rise of neoliberalism, it is not surprising that, since the 1980s, corruption has ‘frequently been seen as an effect and cause of incomplete liberalization [with] public institutions and politics treated mostly as obstructions to that process’ (Johnston 2005: 2–3). Some of the classical literature on corruption, such as Tanzi (1998), certainly reflects this narrative. India went through its own neo-liberal turn in 1991, when the Indian government launched a new economic policy that was largely based upon the principles of neoclassical economics.1 While this new policy of economic liberalization was not externally imposed, it followed, in design and intent, standard prescriptions for structural adjustment lending endorsed by the IMF and World Bank (Sengupta 2008). Also, while many proposed reforms were never fully implemented, government upon government has persevered with the general thrust of the policies adopted in 1991. Unsurprisingly, onwards from the onset of liberalization, corruption has

Human rights and the fight against corruption 155 been habitually conceptualized as a problem of incomplete liberalization. Sukhtankar and Vaishnav’s otherwise excellent study is a case in point. They argue that ‘many vestiges of the License Raj persist and help facilitate rent-seeking activity’ and that corruption ‘is most intense in those sectors where the regulatory footprint of the state is the greatest’ (Sukhtankar and Vaishnav 2015: 7). Their overarching solution is to reduce the ‘overbearing role of the state in the economy’ and ‘give way to market forces’ (Ibid.: 9). This is, without doubt, a familiar point of view. A typical manoeuvre, for proponents, is to recall former Prime Minister Rajiv Gandhi’s memorable verdict, that less than 15 percent of the allocations meant for the poor actually reaches them, and then go on to argue that little has changed since Gandhi uttered those famous words back in 1985 (see, for instance, Bhalla 2014). Government programmes beset by corruption should be axed, not reformed, it is repeatedly said.

Anti-corruption reform in India: are ‘cures’ worse than the disease? One proposal that puts such (neo-liberal) ideas into practice is to replace subsidized food grains, supplied through the public distribution system (PDS), with direct cash transfers into bank accounts of targeted households. Aggressively promoted, particularly by the current government, this proposal has been justified on a number of grounds, such that it will reduce waste, eliminate corrupt brokers, allow people to buy higher-quality food of their choice on the open market and prevent diversion of subsidized food into the black market. While these are clear positives, Mander (2015) flags some important concerns. First, cash transfers may also be subject to corruption. Second, people may very well not choose to spend their cash on nutritious food. Third, India’s banking system does not, as of yet, stretch into the remotest rural regions, whereas ration shops exist ‘in three of every four villages, and are therefore generally accessible’. Fourth, the PDS provides rations at a constant price, whereas the value of cash transfers will be affected by market fluctuations and inflation. Finally, Mander argues, ‘it is a mistake to view PDS only as a means to transfer subsidies to poor households. [Its] costs need to be measured against its other goals as well’. The PDS, he points out, requires the government to procure food from farmers at guaranteed minimum prices, and is thus ‘the most important instrument for the protection of farmers’ income in India’. Abolishing the PDS may have adverse effects on an ‘already precarious agriculture and farmer protection’, Mander suggests. While recognizing the PDS’s ‘admitted flaws’, he laments that the proposal ‘to dismantle what for generations

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has constituted a central instrument of household food security’ has proceeded ‘without due publicity and transparency’. Mander’s reservations about cash transfers are echoed by Drèze (2015), who worries, among other things, that the ‘high-tech infrastructure’ required to implement cash transfers does not yet exist and that the process of installing a new infrastructure could be ‘extremely disruptive’, translating into massive hardships for the underprivileged. Another type of anti-corruption remedies that has steadily gained popularity hinges on strengthening laws that criminalize corruption and bolstering law enforcement institutions. For example, a bill proposing amendments to India’s main anti-corruption law – the Prevention of Corruption Act, 1988 (PCA) – seeks to criminalize bribe giving (according to the current law, only receiving bribes is an offence). The bill also seeks to delete a provision that protects bribe givers from prosecution for statements made during corruption trials. While the PCA is by no means an ideal law, the draconian bill to amend it, which is pending in Parliament at the time of writing, is not necessarily an improvement. Analysis conducted by PRS Legislative Research (2017) suggests that withdrawing protection from bribe givers for statements made in court ‘may deter bribe givers from appearing as witnesses’. Moreover, it is decriminalizing rather than criminalizing bribe paying that is more likely to lead to a reduction in corruption, as doing so will put the interests of the bribe giver and bribe taker at odds (economist Kaushik Basu, as cited in Sircar 2011). Perhaps the best-known example of proposed reform emphasizing law enforcement is the call for an ombudsman office that would be a wholly autonomous body, free of government interference. This demand, around which Anna Hazare famously organized a massive hunger strike in 2011, stems from long-standing criticism of the two principal bodies responsible for enforcing anti-corruption law in India, namely, the Central Vigilance Commission (CVC) and Central Bureau of Investigation (CBI). The CVC has been roundly criticized for lacking investigative powers and for its dependence on other agencies, most notably the CBI. The CBI, for its part, has gained the reputation of being an ineffective and politicized body that launches many investigations but yields few prosecutions or convictions. ‘The principal reason for the CBI’s weak record’, Ganguly argues, ‘is its crippling closeness to executive authority and concomitant lack of real institutional authority’ (2012: 142). However, even though criticism of the CVC and CBI is more than warranted, setting up an independent ombudsman (Lokpal) along the lines suggested by Hazare is not necessarily the answer. Hazare’s proposal was widely condemned for its authoritarian underpinnings, including by civil society organiser Aruna Roy (2011), who expressed concern about its reliance on ‘the arbitrary use of power’,

Human rights and the fight against corruption 157 and academic Neera Chandhoke (2011: 19), who criticized Hazare’s ‘topdown decision-making process [and] expectations of uncritical obedience’. In light of such misgivings, it is perhaps fortunate that Hazare’s vision was never realized. The social movement Hazare ignited, India Against Corruption, eventually fell apart, and the bill he proposed was ultimately withdrawn.2 Even so, the idea that a strong, Leviathanesque ombudsman is what we need to win the fight against corruption retains value in the public imagination. It is not that the ‘typical’ solutions to corruption delineated are without any merit. India’s law enforcement and criminal justice systems are certainly in need of reform given that India has only 16.5 judges per one million residents (while the United States has 101 judges for a comparable population) and 122.5 police officers per 100,000 people (Sukhtankar and Vaishnav 2015: 9). The advantages of cash transfer schemes are widely recognized, and the government appears to be making strides in establishing the necessary ‘high-tech’ infrastructure. Take, for instance, the central government’s ambitious programme to assign a 12-digit biometrically authenticated unique identification number (termed Aadhar) to every resident of India. Authorities argue that Aadhar will revolutionize the delivery of government services by promoting efficiency and eliminating corrupt middlemen. The programme’s official website (https://uidai.gov.in/new/) indicates that, as of February 15, 2017, more than 1,115,589,096 (1.1 billion) Indians have enrolled in Aadhar, which amounts to approximately 92 percent of the country’s population. These are, without doubt, strong foundations to build upon. Even with these firm grounds for optimism, however, typical responses to corruption that centre on liberalization, law enforcement and technology leave much to be desired. Indeed, they suffer from two interrelated flaws. First, they have a near-exclusive focus on correcting individual behaviour (i.e. of the person engaging in corruption) without registering equal regard for wider societal implications. Second, they have a top-down, technocratic and reactive orientation, in which bottom-up participation is not sufficiently valued, and systemic causes, such as inequality and lack of voice, are not adequately addressed. The Indian government’s approach to corruption is in keeping with how development policymaking is done more generally – in Delhi, by people who are designated as ‘experts’, and without any genuine public consultation. A driving assumption behind this model is that ordinary citizens, especially poor people, are unable to develop coherent positions on policy, and are also unable to appreciate the long-term (beneficial) implications of policies that may seem problematic in the short term. For example, when the Rajasthan state government shifted pension payments from local post offices to banks as part of its switchover to

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Aadhar, thousands of pensioners who had not enrolled in Aadhar or opened bank accounts were simply struck off the government’s lists. Errors also abounded, and beneficiaries who are alive were pronounced dead in official records. Although this was a period of tremendous distress for poor people in the state and also the ageing, it was described as merely a ‘period of disruption’ by authorities (see Yadav 2016). There are many other examples of proposed or in-progress anti-corruption reform that demonstrate insensitivity to systemic issues and to adverse implications for the poor. Concerns about the wider implications of replacing the PDS with cash transfers, especially in the absence of required infrastructure, have already been cited, as have various reservations about creating an independent ombudsman’s office. The government’s recent ‘demonetization’ policy is another, ‘realtime’ example and is analysed more closely in what follows.

Demonetization – the costs of ‘purifying’ India At 8:00 p.m. on 8 November 2016, Indian Prime Minister Narendra Modi announced, on live television, that all 500 and 1,000 rupee notes would cease to be legal tender onwards from midnight of that day. ‘The 500 and 1,000 rupee notes hoarded by anti-national and anti-social elements will become just worthless pieces of paper’, Modi said, as would ‘crores worth of currency notes stashed under the beds of government officers’ (Wall Street Journal 2016). Arguing that ‘secrecy was essential for this action’, Modi justified his government’s sudden decision as a ‘fight against corruption, black money, fake notes and terrorism’ and a ‘movement for purifying our country’. He explained that the ‘magnitude of cash in circulation is directly linked to the level of corruption’ and to ‘black money and illegal trade in weapons’ and that it also increases inflation, which reduces ‘the purchasing power of the poor and the middle class’. Pulling money generated by corruption out of the economy, Modi said, would benefit ‘law abiding citizens’. He expressed confidence that ordinary people would willingly bear ‘temporary hardships’ produced by the initiative and ‘make sacrifices and face difficulties for the benefit of the nation’ (Ibid.). Modi also announced various provisions for depositing old notes in banks, and it was later clarified, by the Revenue Secretary, that the source of these old notes would not be questioned ‘if the entire income is declared and 50 percent taxes paid on it’ (ET Bureau 2016). The merits of ‘demonetization’, as Modi’s currency-swap policy has come to be known, have been vigorously debated. It was defended as an effective ‘one-time tax on black money’ that would potentially generate Rs. 2 trillion in revenue for the government (Bhagwati et al. 2016). It was also championed as a strategy of ‘creative destruction’ through which

Human rights and the fight against corruption 159 ‘the formalization and digitalization of India’s economy [would be] jumpstarted’ (Dehejia 2016). Proponents of demonetization have repeatedly said that the short-term costs of the policy should be weighed against the prospect of significant long-term gains. Critics have argued, on the other hand, that while the (largely negative) short-term costs of demonetization are certain, the long-term gains are not. Economist Prabhat Patnaik (2016) offered a stinging critique of demonetization the day after it was announced, describing it as ‘based on an utter lack of understanding of the nature of “black money”, a conception of it that is staggering in its simple-mindedness’. Patnaik pointed out that ‘black money’ is typically not stashed away ‘in pillowcases or in containers buried in the earth’ but is channelled into foreign accounts or simply thrown back into circulation, as ‘profits are earned not by hoarding money’. Rather than ‘attacking money holdings’, he argued, authorities would have done better to focus on how ‘black money’ is generated (for more in-depth criticism along these lines, see Kumar 2017). A statement against demonetization issued in early December by Patnaik and other academics and civil society leaders (Patnaik et al. 2016) pointed out that only about 30 percent of India’s population has access to the banking system and that the distribution of banks is ‘highly skewed with a third of all bank branches in only 60 Tier 1 and Tier 2 cities/towns’. As a result, the statement said, ‘people in rural India who often also suffer from inadequate information have become the worst victims of demonetization’. Patnaik et al. urged the government to ensure that ‘common people have immediate access to enough money to pay for their daily needs and health emergencies’. However, as the weeks rolled on, concern only mounted that the costs of demonetization – even if accepted as merely short term – were being borne heavily by society’s weakest populations. Aruna Roy (cited in Nagarajan 2016) pointed out, for example, that many people in the informal sector, which constitutes 93 percent of India’s workforce, ‘live from hand to mouth, and cannot handle a situation where their access to cash is squeezed and cut off. Workers in this sector depend on daily work payments and cash transactions’. Roy argued that demonetization would have a devastating impact on the small and medium industries that support the informal sector and on small businesses run by rural women entrepreneurs on the basis of cash. Economist Pronab Sen (2016) conveyed similar concerns about the informal sector and indicated, furthermore, that the ‘officially projected best-case scenario [for the effects of demonetization to settle down] is three weeks, which is a lifetime for the poor and indigent’. He pointed out that some of the cash being targeted by the government ‘is held by hundreds of millions of the poor as savings and for meeting contingencies, and they have little else to fall back upon’ (Sen 2016).

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It is difficult to assess the long-term effects of demonetization at this time. The IMF has cut India’s growth forecast to 6.6 percent from 7.6 percent (George 2017), but it is entirely possible that growth will soon bounce back. It is also possible that formalization and digitalization of the economy will be ‘jump-started’ by demonetization. What seems highly unlikely, however, is that the policy will achieve the ends stated in Modi’s November 8 speech, namely, a decline in corruption, black money, tax evasion, counterfeit money and terrorism. Even supporters of demonetization have conceded this point. Dehejia (2016) argues, for example, that ‘without allied reforms, for instance, of electoral finance and regulatory and tax reform more broadly, the tax on unaccounted wealth and income [i.e. demonetization] is a one-shot affair’. It is abundantly clear that demonetization does not take aim at structural causes of corruption but only at its effects and that, too, in a ‘one-shot’ manner. The policy’s main intention is to deliver immediate punishment to people who are thought to have indulged in corruption and other illicit activities. Demonetization conceptualizes corruption not as a deeply rooted systemic problem but one that is created by aberrant, immoral individuals who must be routed out in order to cleanse the system – the zeal to punish wayward individuals (‘anti-national and anti-social elements’) is evident in the moralizing tone of Modi’s speech and is possibly what weakened concern about the policy’s broader social implications. My criticism of demonetization, as an instance of anti-corruption reform, is by no means partisan. On the whole, the Modi government’s approach to corruption – with its emphasis on symptoms over cause and punishing or deterring individuals over fixing structural problems – is not dissimilar to the approach followed by other governments, though it is perhaps a more extreme form. It was under the Congress-led UPA government, after all, that appeals to dismantle the PDS system in favour of direct cash transfers were first seriously entertained, as were calls to tighten law enforcement measures and anti-corruption laws. While mitigating the immediate effects of corruption and punishing dishonest individuals are not without their uses, they should not be the only focus of anti-corruption reform. Policies spurred by such intentions alone are not only unlikely to be sustainable, they are also unlikely to be fair. We must ask how we may do better, especially so that the poor – who suffer the most from corruption – are not expected to suffer the most from corruption’s suggested ‘cures’. It is customary for policymakers to ground their decisions in cost-benefit analyses. Too often, however, utilitarian considerations win the day. If the long-term benefits of a proposed policy are expected to outweigh its shortterm costs, the policy will most likely be defended, even if its short-term costs are suffered by poor and marginalized groups in society who lack

Human rights and the fight against corruption 161 power and voice. The ethics of decisions that hinge on the principle of ‘the greatest amount of good for the greatest number’ are rarely put under the spotlight. If a proposed policy does not feel morally right, it is often assumed that there is no better alternative. For example, various proponents of demonetization, including Prime Minister Modi, have acknowledged that the policy will impose plenty of hardship upon ordinary people. They have implied that this is not fair. However, it must be tolerated, it is said, because the ‘creative destruction’ it has set in motion (Dehejia 2016) is good for the country. But why must we accept utilitarian justifications for policy? Why must we accept that some groups of people will always, or nearly always, pay a heavier price for so-called ‘necessary change’? Challenging these long-standing assumptions is certainly not easy, but it cannot be done unless (a) ethical considerations behind policy proposals are made explicit and (b) clear reasoning is developed for why some choices that appear to be intuitively wrong are actually wrong and why other choices are better because, above all else, they are fairer. The concept of human rights, I suggest in what follows, provides a firm anchor for raising ethical concerns about policy and for creating clear, comprehensive and practicable guidelines for fighting corruption fairly and sustainably.

Towards an ethics of anti-corruption reform – what can human rights contribute? According to James Nickel (2014), human rights are ‘norms that help protect all people everywhere from severe political, legal and social abuses’. They are conceptualized as ‘rights’, which means that they impose duties or responsibilities on their addresses or duty bearers. Nickel points out that while historical sources for human rights include the Magna Carta, the French Declaration of the Rights of Man, and the US Constitution’s Bill of Rights, the key sources of the contemporary idea of human rights are the Universal Declaration of Human Rights (UDHR) – adopted by the United Nations (UN) in 1948 – and other human rights documents and treaties that have emerged out of the UN and other international organizations. The main premise of human rights is that they are ‘rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status’. All human rights are taken to be ‘interrelated, interdependent and indivisible’, and we are said to be entitled to our human rights without discrimination (OHCHR 2017). Human rights are by no means an uncontroversial concept. Debate rages on among philosophers as to what, precisely, constitutes a ‘right’ – for example, is there a right to health or to healthcare? – and whether universal

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human rights exist. Much has been said, moreover, about the misuse of human rights, and how they were ‘constructed by Western states and elites to spread Western economic and political power’ (Donnelly 2014: 475). The fact remains, however, that the international community of states has given recognition to a wide spectrum of rights through the signing of dozens of human rights–based treaties and agreements. Almost every country in the world has signed the six principal human rights treaties – Donnelly (Ibid.: 464) points to an impressive 88 percent average ratification rate – which suggests that there is a large measure of international consensus on what human rights are and why they should be valued. Human rights recognized by the community of states, including India, include ‘civil and political rights’, such as equality before the law, protection against arbitrary arrest and detention, freedoms of speech, assembly and political participation, and ‘economic, cultural and social rights’, such as the right to education and the right to adequate food. Indeed, it is because core human rights principles are accepted so widely across the world that they provide a stronger basis for building ethical frames to guide policy than do other, comparable normative concepts such as ‘human needs’ and ‘capabilities’. Even though mechanisms for implementing human rights have been disappointingly weak at both national and international levels, human rights enjoy considerable moral force. But what does a rights-based approach to policymaking involve, and how can it be applied to the struggle against corruption? Let us begin with the example of how a human rights-based approach to development cooperation is conceptualized by the UN. Building such an approach, according to the UN Practitioners’ Portal on Human Rights-Based Approaches to Programming, would involve ensuring that (a) all programmes of development cooperation further the realization of human rights, (b) human rights standards guide ‘all programming in all sectors and in all phases of the programming process’, and (c) development cooperation contributes to the development of the capacities of ‘duty bearers’ to meet their obligations and of ‘rights-holders’ to claim their rights (HRBA Portal 2017). By taking on a rights-based approach, in other words, the objectives of development cooperation are redefined, from typical goals, such as raising national economic growth rates to realizing the human rights of individuals. The process for achieving development goals is also rethought. The requirement that human rights standards – such as inclusion, non-discrimination, participation, accountability and empowerment – are met along every step of the policy process implies that governments cannot disproportionately burden any group of people with the costs of development, and that too through top-down decrees. Meeting human rights standards means that ordinary people have to be asked, through inclusive, participatory processes, to

Human rights and the fight against corruption 163 identify what they want out of development and which costs they are willing to bear. In fact, human rights prompt us to reconsider the concept of ‘acceptable costs’. If a policy is likely to produce human rights violations, it should be rethought, even in the face of expected long-term gains. As Mary Robinson argues, the ‘ability of human rights to force attention towards those who lose out is a specific contribution they can make to development planning’ (Robinson 2005: 36). Evaluating decisions against human rights criteria, she suggests, will help decision makers ‘identify where their policies are likely to produce, or have produced, discriminatory outcomes or outcomes that are otherwise undesirable’ (Ibid.: 35). What will change if human rights norms are followed during the formulation of anti-corruption reform? First, the primary objective of anticorruption reform will shift, from a focus on sensationalized ‘scams’ and punishing of ‘bad’ individuals to the realization of human rights, especially those rights whose fulfilment is deterred by corruption. Taking human rights into consideration reminds us that many rights are affected by corruption. A person’s right to education is impeded by teacher absenteeism in public schools. A person’s protections from arbitrary arrest and detention are impeded if the police misuse their power of arrest to extort money. The switch to thinking about corruption as a violation of human rights and anti-corruption reform as a means to address such violations is not merely a matter of semantics. It requires that we reorder priorities and search for systemic solutions. We will be deterred, for example, from using scarce public resources to set up an ombudsman’s office and, that too, on top of existing institutions that arguably serve more or less the same function (such as the CVC and CBI). The human rights benefits of establishing an additional law enforcement body, or destroying stockpiles of cash, for that matter, are unclear at best. The estimated cost of the initial phase of demonetization, according to the Centre for Monitoring Indian Economy (CMIE), is a massive Rs. 1.28 lakh crore (FE Online 2016). Is this a justifiable expense, we should ask, given that the human rights gains of demonetization are difficult to assess? (One might argue that demonetization will lead to improved tax collection in the long term, which will allow the government to undertake more rightsfulfilling welfare programmes – however, there are many ‘ifs’ and ‘buts’ in this equation, especially since the government has not cited human rights as a justification for demonetization.) From a human rights perspective, we would do better to channel scarce public resources towards policy reform that has clearer and more immediate gains, such as tackling teacher absenteeism. While this would certainly involve monitoring teachers and disciplining those who are habitually absent, it would also involve thinking, more broadly, about why so many teachers in government schools find it

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attractive to ‘shadow teach’ privately in the first place. This is because our core goal is not to punish errant teachers but to realize the right to education. We might ask, therefore, whether government teachers are not being paid enough. Or whether teachers are in grievously short supply, especially in rural areas, which means that the problem of absenteeism will continue until more teachers are trained and deployed into these areas. Analysing corruption through the framework of human rights will mean starting with different questions than what is usually done and developing clear reasoning as to why some priorities should be valued over others. Of course, it will also involve paying attention to the process through which corruption is fought. The requirement that human rights standards are to be observed through every step of the policy process will mean rethinking or rejecting proposals that are likely to lead to human rights violations, even if long-term gains are expected. Draconian law enforcement measures that threaten to precipitate due process violations are an example of the type of ‘reform’ that would be rejected when examined through a human rights lens. Another example is demonetization, which could easily have been rejected (or seriously rethought) on human rights grounds while it was still at the proposal stage. Demonetization inhibited the realization of a host of human rights because it impeded the ability of many poor people to pay for food, essential medicines, rent, school fees and so on. Given that well-off people were still able to pay for essentials with cheques and credit cards, demonetization imposed disproportionate costs upon the poor, indicating that the principle of non-discrimination was violated. The clandestine and sudden nature of demonetization meant, moreover, that the principles of inclusion, participation and empowerment were disregarded. Of course, demonetization could also have been rethought, through an inclusive and participatory process, in which ordinary people were asked to articulate their objectives and concerns. If this route were not palatable to the government for ‘secrecy’ reasons, it could have spent more time preparing the groundwork for a smoother transition, for example, by ensuring that every Indian had reliable access to a bank and was enabled to make cashless transactions. Taking on a human rights approach to corruption may seem cumbersome, time-consuming and even rejectionist at first, but it is more likely than typical top-down approaches to lead to fair, sustainable solutions. It is also likely to lead to a stronger argument for fighting corruption. When corruption is framed as a problem that causes human rights violations, such as of the right to education and the right to a fair trial, eradicating corruption becomes all the more urgent. We are reminded that the Indian government is obligated to do so as a result of its international human rights commitments, its constitutional commitment to upholding the fundamental rights

Human rights and the fight against corruption 165 of citizens and its broader commitment to upholding the law of the land, which now includes the Right to Education Act passed in 2010. Linking corruption with human rights violations provides a good counter, furthermore, to the (neo-liberal) argument that corruption is not a problem unless it has an adverse impact on economic growth and that it may even be beneficial in the face of poor governance because it helps cut through government ‘red tape’, thereby ‘greasing the wheels’ of the economy. Linking corruption with human rights also helps undercut the argument, proposed mainly by Marxist and post-colonial scholars, that corruption has a potentially redistributive effect in highly unequal societies and should therefore be tolerated, at least until the problem of inequality is sufficiently mitigated (see Chatterjee 2004 for a classic rendition of this argument). In India, many people on the left are hesitant to endorse corruption as a highpriority public policy issue because (a) it is regarded as a primarily ‘middle class’ concern and (b) it is associated with aggressive calls to dismantle welfare programmes and other measures of public spending on the poor. This ambivalence towards anti-corruption reform was apparent, for example, in criticisms of Anna Hazare’s India Against Corruption movement by Arundhati Roy (2011), Chandhoke (2011), Appadurai (2011) and many other left-leaning scholars and activists. When corruption is approached through the lens of human rights, however, the spotlight falls squarely on how poor people experience the problem – on how badly they are hurt by it and the sense of powerlessness and indignity that it creates. It is more difficult, in this light, to sustain arguments about the benefits of corruption from either the political right or left. A human rights–based approach to anti-corruption reform also demands that anti-corruption initiatives contribute to the development of the capacities of ‘duty bearers’ (primarily states) to meet their obligations and ‘rights holders’ (people) to claim their rights. Interestingly, from a human rights perspective, an initiative such as demonetization could be viewed in a positive light. This is because it has the potential to contribute to the digitalization and formalization of the economy and thereby the tax-collection capacity of the state. Of course, its advantages in this regard would have to be weighed against its likelihood of contributing to human rights violations, and given demonetization’s rather large potential in this regard, it would probably still need to be vetoed or rethought. Another red flag to consider is that larger tax revenues for the state do not necessarily translate into money well spent on realizing human rights. Most governments need to be pushed into doing so, which is perhaps why enhancing the capacity of rights holders (people) to claim their rights is the most crucial target of human rights–based policymaking. How can this be done? What, specifically, can anti-corruption reform contribute to the capacity of ordinary

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people to claim their human rights? Which types of initiatives will put voice and power into the hands of ordinary people? Several remedies come to mind, including some that would involve using new technologies creatively. For example, schools could be required to monitor teacher attendance through the use of digital cameras. In one experiment, conducted by academics, teachers in Udaipur were given tamper-proof cameras and were required to have students photograph them with other students at the beginning and end of each school day. Attendance for teachers who were given cameras improved by 50 percent compared to a control group that did not receive cameras, the study found (Sukhtankar and Vaishnav 2015: 28). An initiative such as this, which puts power directly into the hands of citizens, is one that the government would do well to invest in. Another innovation worthy of emulation on a wider scale is www.ipaidabribe.com, a website that allows people to report the bribes they were forced to pay. At the time of writing, the site claimed millions of visits and over 65,000 reports from more than 1000 cities across India. Yet another is Samuel Paul’s ground-breaking concept of ‘citizen report cards’, which collects citizen feedback on the performance of public agencies. However, the most obvious example of an anti-corruption measure that will also enhance the capacity of citizens to claim their rights is the enactment and implementation of right-to-information laws. India has done well on one count (enactment) though not so well on the other (implementation). On June 15, 2005, the Parliament of India passed a historic Right to Information Act (RTIA) that applies to every state and union territory in the country with the exception of Jammu and Kashmir. The RTIA entitles any citizen to request information from a public authority and requires the authority to respond to the request within 30 days. India’s RTIA is a powerful legal text that has drawn worldwide acclaim. In 2012, the Centre for Law and Democracy, a global human rights watchdog, ranked the RTIA as the second-best right-to-information law in the entire world based on its overall score in the categories of right of access, scope, requesting procedures, exceptions and refusals, appeals, sanctions and protections and promotional measures (Sukhtankar and Vaishnav 2015: 23). The RTIA has had a significant impact on the functioning of government in India. Among other things, it has been credited with helping equip the public with credible information about the notoriously opaque selection processes of the University Grants Commission and the abuse of allowances by members of Parliament and cabinet ministers (Yadav 2015; Worthy and McLean 2015). Civil liberties advocates and anti-corruption activists have, nonetheless, expressed much concern about the RTIA’s poor implementation record (Shreyaskar 2014; Venkat 2015).

Human rights and the fight against corruption 167 Perhaps the most remarkable aspect of this historic law, however, is that, unlike most other acts of Parliament, the RTIA was initiated by sustained civil society action from below. This action was led by the National Campaign for People’s Right to Information (NCPRI), along with grassroots groups such as the Mazdoor Kisan Shakti Sanghatan (MKSS) and other larger interest groups, such as the Press Council of India (PCI). Theirs was a difficult journey that began in 1996, when the NCPRI and PCI sent a draft RTI bill to the government, which appointed a committee to study the proposal (Singh 2010: 51). The committee submitted its report in 1997, but the government took no action. Two years later, however, came a major breakthrough. Ram Jethmalani, a prominent lawyer and then Union Minister for Urban Development, unexpectedly issued an administrative order permitting citizens to inspect and receive photocopies of files in his ministry. The Prime Minister reversed Jethmalani’s order, and activists seized upon this decision to file a petition with the Supreme Court in protest. The Supreme Court found for the petitioners and issued an ultimatum to the government, which precipitated the passage of the Freedom of Information Act (FIA) in 2002. However, the FIA was not given presidential assent and thus did not officially come into effect, giving the government ‘the last laugh’, according to Singh (2010: 59). The national elections of 2004 provided a fresh opportunity for the RTI movement to mobilize its extensive networks within elite political circles. The freshly elected UPA government pledged commitment to transparency and accountability and set-up a high-level body, the National Advisory Committee (NAC), that included several NCPRI members, including Aruna Roy. The NAC formulated amendments to strengthen the FIA of 2002, and the amended bill was passed by the new government as the RTIA in June 2005. The law received presidential assent and came into effect in October 2005. The NCPRI remains active today, with an emphasis on raising awareness about the RTIA, monitoring its implementation and safeguarding the law from being watered down through amendments of its provisions. The NCPRI has also pushed for electoral reforms, judicial accountability and, most crucially, the protection of whistle-blowers. It was arguably because of the NCPRI’s aggressive campaigning alongside families of murdered RTI activists that a law to protect whistle-blowers was finally – i.e., after being passed by the Lok Sabha in 2011 – given presidential assent and brought into effect in 2014. The RTIA’s fraught journey and deficient record of implementation indicate that the government cannot easily be counted upon to support laws that expand citizen entitlements, especially in the realm of transparency.3 The NCPRI might not have succeeded in its efforts had its networks not stretched into the highest levels of the

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UPA government. Indeed, some of the toughest and most crucial work in anti-corruption reform, from a rights-enhancing perspective, is being done by lawyers, activists and civil society groups, who are engaged not only in organizing rallies and protests – or resistance from ‘below’ – but also in the pragmatic work of building networks within government. The achievements in this regard of one grassroots group, the MKSS, are worth recounting here in some detail. Founded in Rajasthan in 1990, the MKSS is renowned not only for its pioneering work in organizing village-level social audits but also for its key role in the RTI movement. The MKSS’s interest in access to information emerged out of its concern with local livelihood issues, such as the Rajasthan state government’s failure to enforce minimum wage regulations and to ensure the availability of subsidized food through the PDS. The MKSS came to understand corruption as the root cause of such problems and strong access to information laws as the primary solution. In the years leading up to its formation, activists working on local livelihood issues came to learn that authorities were diverting food from PDS ration shops to the open market. They were also billing the central government for wages that were not being paid out to workers enrolled in various employmentgeneration programmes. The underpayment of wages was a particularly serious concern in the famine-relief work sites set up by the government to provide a basic income for poor people in drought-prone areas of Rajasthan. Since men from these areas tended to migrate to towns and cities in search of jobs, large numbers of women worked at the sites, which included projects to build roads and dig wells (Jenkins 2004; MKSS 2017). When workers took the initiative to confront local officials over failure to pay wages, however, they were told that there was no proof of their having worked. It was then that the MKSS campaigned on their behalf and demanded access to the government’s employment registers. A key document sought was an employment register (muster roll) listing the names of people employed at each site, the days they worked and the amount paid to each worker (Jenkins 2004: 223). The MKSS organized public hearings (jan sunwais) where the muster roll was read aloud to assembled villagers and systematically cross-checked by MKSS volunteers for evidence of fraud. Although jan sunwais were organized independently of official, statutorily recognized village assemblies, local officials and elected representatives were invited to attend, including the village sarpanch (the elected head of the village government). Each event was presided over by a panel of respected individuals, such as lawyers, academics and journalists, from both within and outside the area. Even in its early days, the MKSS met with many successes (see Baviskar 2007) and inspired other civil society groups rallying against corruption,

Human rights and the fight against corruption 169 such as the Delhi-based Parivartan, to organize jan sunwais as well (Pande 2007). On many occasions, however, the MKSS’s efforts were successfully resisted by local officials. In one case (Jenkins and Goetz 1999: 606), an elected village chairperson who had admitted to committing fraud during a jan sunwai was persuaded by her counterparts in neighbouring villages to recant her statement of guilt. No further action was taken against her. Extracting information from government officials proved to be very difficult, and subsequent action on misdeeds brought to light through jan sunwais was rare. The Official Secrets Act of 1923, which has been held over from the colonial period, was regularly cited to block demands for access to government accounts records, and the MKSS found that its public hearings were almost entirely reliant on the cooperation of sympathetic government officials. In order to break its dependence on the goodwill of individual government officials, the MKSS, in alliance with other civil society groups in the state, sought legislative and regulatory reform that would provide a legal basis for citizens to obtain government documents. After many mass rallies and dharnas, this effort was rewarded with the passage of a state-level Right to Information Act in the year 2000. It was a hard-won victory, however, that took a full decade to achieve (Mander and Joshi 1999; Jenkins and Goetz 1999). The government first issued an order that allowed inspection but not photocopying. Then it issued an order that allowed the photocopying of records related only to development works under the authority of local governments, a rule that did not apply to the PDS, which is jointly controlled by the state and central governments. The government also tried, albeit unsuccessfully, to exclude the MKSS from the process of drafting the new RTI law. It is important to note, however, that there were two sides to the MKSS’s relationship with government officials. On the one hand, there was predictable hostility and foot dragging, particularly by local officials, in the early days of jan sunwais. On the other hand, the MKSS made alliances within government, especially within the upper levels of the Rajasthan state administration. As Jenkins notes, even in the stormy years leading up to the state RTI act, the MKSS and state government officials communicated directly with one another, and while such ‘face to face communication was not lacking in the normal hardball negotiating tactics and duplicitous public-relations diplomacy that one expects of seasoned politicians and bureaucrats’, there was ‘a level of civility’ beneath which proceedings did not sink (Jenkins 2004: 248). The MKSS also enjoyed good relations with other state- and national-level civil society groups working on development and civil liberties with whom it participated intensively in state- and national-level campaigns for employment guarantee schemes, the right to food, and the right to information.

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The MKSS is extraordinary not only because of its contribution to grassroots citizen empowerment – and that, too, against significant odds – but also because its journey gives us a sense of what ordinary people want from anti-corruption reform when they are able to articulate their own preferences. Our analysis of this case suggests that mobilizations against corruption by poor people often begin as livelihood struggles over food, water and payment of minimum wages – indeed, this was also the experience of another grassroots anti-corruption group, the Maharashtra-based Brashtachar Virdoshi Jan Aandolan (BVJA), whose struggle against corruption began with local concern around irrigation and land (see Jenkins 2004 for a useful comparison between the MKSS and BVJA). The MKSS’s experience suggests that while poor people are moved to resist corruption in the delivery of government services, they do not wish to see these services withdrawn. Middle and upper classes, in contrast, are less reliant on government programmes and are thus more likely to view deregulation, privatization and other measures that scale back the state (other than law enforcement, which they still need) as good antidotes to corruption. In fact, the MKSS’s call is for ‘a powerful state, but one that is also open and accountable’ (Aruna Roy quoted in Baviskar 2007: 17). Its example indicates that poor people tend to draw a clear connection between corruption and (the lack of) rights, thus lending the argument for a human rights–based approach to corruption even more strength.

Concluding thoughts This chapter suggests that the Indian government’s approach to fighting corruption, exemplified by its recent experiment with ‘demonetization’, is an example of how anti-corruption reform can end up hurting the poorest and most marginal groups in society, who also happen to be the worst casualties of corruption. While this does not seem fair, it is all too often assumed that there are no better alternatives. I propose that we – governments, donors, academics, activists – strive to do better by analysing corruption through the lens of human rights. First and foremost, this will put the ethics of anti-corruption decision making squarely under the spotlight. The human rights approach will mean asking different questions, reordering priorities, scrutinizing process and paying closer attention to the experience of grassroots groups and social movements in resisting corruption. While a human rights–based approach to anti-corruption reform requires more circumspection and less speed than do typical approaches, it is more likely to lead to fair and sustainable solutions in the long run. Through a focus on India, this chapter highlights some of the main strengths of putting the concept of human rights into practice.

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Notes 1 Economists Vijay Joshi and I.M.D. Little argue that even in June 1991 – that is, one month prior to the initiation of this new economic policy – India was the ‘most autarkic and heavily regulated non-communist country in the world’ (Joshi and Little 2000: 10). 2 The UPA (United Progressive Alliance) government eventually passed a law, the Lokpal and Lokayuktas Act (2013) that contained many provisions in line with Hazare’s demands. 3 Another proposed law, the Right of Citizens for Time Bound Delivery of Goods and Services (also known as ‘Citizens Charter’), was introduced in parliament in 2011, but has since then lapsed (see Kumar 2003 for a rigorous defence of the proposed law). Versions of the proposed act do exist, however, at the state level.

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Human rights and the fight against corruption 173 Mander, Harsh 2015. ‘Replacing Food with Cash’, Live Mint, www.livemint. com/Opinion/hnytasM4zVTEWmQnt1fc1N/Replacing-food-with-cash. html (accessed on 14 February 2017). Mander, Harsh. and Abha. Joshi. 1999. The Movement for Right to Information in India: People’s Power for the Control of Corruption. New Delhi: Commonwealth Human Rights Initiative. Mauro, Paolo. 1998. ‘Corruption and the Composition of Government Expenditure’, Journal of Public Economics, 69(2): 263–279. MKSS. 2017. Mazdoor Kisan Shakti Sanghatan, www.mkssindia.org (accessed on 23 February 2017) Muralidharan, Karthik et al. 2017. ‘The Fiscal Cost of Weak Governance: Evidence from Teacher Absence in India’, Journal of Public Economics, 145: 116–135. Nagarajan, Kedar. 2016. ‘“The Informal Sector Will Be Mostly Finished”: Aruna Roy Discusses Demonetisation and Its Effects on Rural India’, Caravan, December 31, www.caravanmagazine.in/vantage/interview-aruna-roydemonetisation-effects-rural-india (accessed on 1 February 2017). Nickel, James. 2014. ‘Human Rights’, in Edward Zalta (ed.), The Stanford Encyclopedia of Philosophy, Winter. Metaphysics Research Lab, Stanford University. https://plato.stanford.edu/archives/win2014/entries/rights-human/ (accessed on 15 February 2017). Niehaus, Paul, and Sandip Sukhantar. 2013. ‘Corruption Dynamics: The Golden Goose Effect’, American Economic Journal: Economic Policy, 5(4): 230–269. OHCHR. 2017. United Nations Human Rights Office of the High Commissioner, www.ohchr.org/EN/pages/home.aspx (accessed on 27 February 2017). Pande, Suchi. 2007. ‘The Right to Information and Societal Accountability: The Case of the Delhi PDS Campaign’, IDS Bulletin, 38(6): 47–55. Patnaik, Prabhat. 2016. ‘Demonetization: Witless and Anti-People’, The Citizen, November 9, www.thecitizen.in/index.php/NewsDetail/index/1/9151/ Demonetization-Witless-and-Anti-People (accessed on 1 February 2017). Patnaik, Prabhat, Prashant Bhushan, Aruna Roy, Bezwada Wilson, J Ghosh, Harsh Mander, and Dipa Sinha. 2016. ‘Statement on Demonetisation’, Frontier, 49(22), www.frontierweekly.com/articles/vol-49/49-22/49-22-De Monetisation.html (accessed on 15 February, 2017). PRS Legislative Research. 2017. ‘While in Session: Analyzing the Prevention of Corruption (Amendment) Bill’, http://www.prsindia.org/media/articles-byprs-team/while-in-session-analysing-the-prevention-of-corruption-amendmentbill-4887/ (accessed on 5 August 2017). Robinson, Mary 2005. ‘What Rights Can Add to Good Development Practice’, in Mary Robinson and Phillip Alston (eds.), Human Rights and Development: Towards Mutual Reinforcement, pp. 25–41. Oxford, UK: Oxford University Press. Roy, Aruna. 2011. ‘The Lokpal-NCPRI Approach: The Right to Differ’, Kafila, August 19, https://kafila.online/2011/08/19/the-lokpal-ncpri-approachthe-right-to-differ/ (accessed on 15 February 2017).

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Roy, Arundhati. 2011. ‘I’d Rather Not Be Anna’, The Hindu, www.thehindu. com/opinion/lead/id-rather-not-be-anna/article2379704.ece (accessed on 15 February 2017). Sen, Pronab. 2016. ‘Demonetization Is a Hollow Move’, Live Mint, November 14, www.livemint.com/Opinion/uzvIE84KGXy1xvp06pTazM/Demon etization-is-a-hollow-move.html (accessed on 17 February, 2017). Sengupta, Mitu. 2008. ‘How the State Changed Its Mind: Power, Politics and the Origins of India’s Market Reforms’, Economic and Political Weekly, 43(21): 35–42. Shreyaskar, Pankaj. 2014. ‘Known Unknowns of RTO: Legitimate Exemptions or Conscious Secrecy?’ Economic & Political Weekly, 49(24): 32–38. Retrieved August 13, 2014, from http://www.epw.in/perspectives/know nunknowns-rti.html Singh, Shekhar. 2010. ‘The Genesis and the Evolution of the Right to Information Regime in India’, in Shekhar Singh et al. (eds.), Transparent Governance in South Asia, pp. 43–78. New Delhi: Indian Institute of Public Administration (IIPA), www.iipa.org.in/www/iipalibrary/RTI-PDF/Chap-4.pdf (accessed on 15 February 2017). Sircar, Subhadip. 2011. ‘Kaushik Basu Says Make Bribe Giving Legal’, Wall Street Journal, March 30, http://blogs.wsj.com/indiarealtime/2011/03/30/ kaushik-basu-says-make-bribe-giving-legal/ (accessed on 15 February 2017). Sukhtankar, Sandip, and Milan Vaishnav. 2015. Corruption in India: Bridging Research Evidence and Policy Options (SSRN Scholarly Paper No. ID 2685819), pp. 1–79. Rochester, NY: Social Science Research Network, https://papers. ssrn.com/abstract=2685819 (accessed on 15 February 2017). Tanzi, Vito. 1998. Corruption around the World: Causes, Consequences, Scope, and Cures (IMF Working Paper No. 63). Washington, DC: International Monetary Fund. Venkat, Vidya. 2015. ’10 Years after RTI: Transparency under Cloud’, The Hindu. Chennai, May 16, www.thehindu.com/news/cities/Delhi/10-yearsafter-rti-transparency-under-cloud/article7213480.ece (accessed on 15 February, 2017). Wall Street Journal. 2016. ‘Full Text of Indian Prime Minister Narendra Modi’s Speech on Replacing Largest Rupee Notes’, Wall Street Journal, November 8, http://blogs.wsj.com/indiarealtime/2016/11/08/full-text-of-indianprime-minister-narendra-modis-speech-on-replacing-largest-rupee-notes/ (accessed on 15 February 2017). Worthy, Ben and Tom McLean. 2015. ‘Freedom of Information and Corruption’, in P. M. Heywood (ed.), Routledge Handbook of Political Corruption, pp. 347–358. London: Routledge. Yadav, Anumeha. 2016. ‘Rajasthan’s Living Dead: Thousands of Pensioners without Aadhaar or Bank Accounts Struck Off Lists’, Scroll, August 6, https://scroll.in/article/813132/rajasthans-living-dead-thousands-of-pen sioners-without-aadhaar-or-bank-accounts-struck-off-lists (accessed on 16 February 2017).

Human rights and the fight against corruption 175 Yadav, Shyamlal. 2015. ’10 Ways in Which RTI Has Changed the Functioning of Govt. Officials’, The Indian Express, October 28, http://indianexpress. com/article/explained/10-ways-in-which-rti-has-changed-the-functioningof-govt-officials/ (accessed on 16 February 2017). You, Jong-sung. 2015. Democracy, Inequality and Corruption. Cambridge, UK: Cambridge University Press.

Part II

Gender, religion, family, work, caste and community Issues and contestations

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Sex-selective abortion and reproductive rights A syncretic feminist approach Bijayalaxmi Nanda

Civil and political rights which originated with the American and French Revolution did not extend to women, nor did the full range of economic and social rights which emerged thereafter. This exclusion of women from the full exercise of their rights continued till the end of the eighteenth century. The nineteenth century saw a questioning of this exclusion by liberal political thinkers. By the middle of the twentieth century a full-fledged movement to demand substantive women’s rights spread throughout the world. While liberal feminists spoke about equal rights to education and employment, socialist feminists spoke about both relations of production and reproduction and radical feminists focused mainly on reproduction. Feminists since the nineteenth century have elaborated on the idea of reproductive rights by articulating the principle of a woman’s right to ‘control her own body’ (Dixon-Mueller 1993: 4). Gender discrimination and inequality as a rights issue has been traced to the writings of British feminist Mary Wollstonecraft in Vindication of Rights of Woman written in 1792. The famous liberal political thinker John Stuart Mill and his wife Harriet Taylor Mill elaborated further on women’s rights in their Subjection of Women (1869). Both these texts raised demands in terms of civil and political rights for women. They questioned the discriminatory practices that obstructed women’s entry into the public sphere of education and employment. They advocated for the recognition of women’s rights in these fields in order to counter discrimination and bring about gender equality. Engels’s Origin of Private Property, Family and State (1884) strived to establish how women became the first slaves due to the emergence of private property and how in the family the man was the bourgeoisie and the woman the proletariat. They were of the belief that with the abolition of private property women and men would be equals. Socialist feminists like Heidi Hartmann (1981) and Zillah Eisentein (1979) disagreed with this narrow, reductionist idea. They examined the role of reproduction in women’s lives and made causal linkages with the sexual division of labour

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to provide answers to the reasons for gender discrimination and inequality. Radical feminists emphasized only the women’s body as a cause for the inequality and discrimination she faced. Kate Millett’s Sexual Politics (1971) questioned the public–private distinction which relegated women to the private sphere and failed to recognize the politics of power-structured relationships which led to a male dominated society. The feminist slogan ‘the personal is political’ raised by her can be considered the foundational principle of reproductive rights. Catherine Mackinnon, Andrea Dworkin and Shulamith Firestone in their respective writings nuanced the understanding on reproductive rights by examining issues around abortion, rape and reproductive technologies. The female body became the site for competing claims for rights. State policies often engaged with the control of women’s fertility for the purpose of demographic goals, and communitarian, cultural and religious structures have pronatalist agendas, while feminists emphasize on the right to bodily integrity, privacy and choice. Connected in complex and contradictory ways, these competing discourses reveal the collaborative and combative nature of the terrain of gender discrimination. In this chapter an attempt is made first to study the evolution of the idea of reproductive rights, next there is an examination of the conflictual and complex understanding of reproductive rights in the phenomenon of sex-selective abortion in India, then the competing discourses on the issue emerging from the global, state and civil society narratives is discussed. It lays down the story of the struggle to counter sex-selective abortion in India, the roots of the contradictions of some of those discourses when it comes to reproductive rights and the relevance of the same for the status of women in India. In the final analysis the syncretic feminist perspective combining principles from various feminist positions is provided as an approach to resolve some of the debates and dilemmas regarding reproductive rights and countering sex-selective abortion as gender discrimination in India today.

The evolution of reproductive rights The feminist position on reproductive rights has been examined earlier. As a theoretical discourse reproductive rights owe their origin to the writings of socialist feminists and radical feminists. In terms of inalienable and indivisible rights it found its first expression in the 1966 Declaration on Population by World Leaders (United Nations 1975: 9), which recognized family planning as a means of ‘assuring greater opportunity to each person’ and of ‘freeing man to attain his individual dignity and reach his full potential’ (Dixon-Mueller 1993: 12). The Convention on the Elimination of All forms of Discrimination Against Women (1979) also confirms women’s rights to

Abortion and reproductive rights 181 family planning and equal rights with men to decide on the size of the family. It also speaks about right to maternity and child care benefits especially in terms of preventing discrimination at work. The convention emphasizes the obligation of states to reform their cultural and customary practices which are discriminatory to women. It thus addresses three concepts of rights: natural rights deriving from the theory of individual liberties, social rights from the theories of state responsibility and customary rights deriving from traditional beliefs and practices. It recognizes that the achievement of gender equality requires gender-specific policies and programmes. It emphasizes the requirement to eliminate cultural and customary practices and attitudes that are responsible for the gap between the rhetoric of legislation and the reality of its practice. The document serves the purpose of being a directive to action, a commitment to gender equality and a feminist tool to assess gender inequality (Dixon-Mueller 1993: 10). It was in 1994 that the International Conference of Population and Development (ICPD) in Cairo laid down and elucidated the basic principles of reproductive and sexual rights in their Plan of Action. The rights for women include: (a) the right to decide about pregnancy – if, when and how often, (b) the right to have access to safe, effective, affordable and acceptable methods of family planning, (c) the right to a satisfying and healthy sex life, (d) the right to a safe pregnancy, childbirth and a healthy infant and (e) the right to control over one’s body and bodily integrity. Reproductive rights were again emphasized in the Beijing Platform of Action in 1995, popularly known as the Platform for Action for women (United Nations 1995). It is here that Hilary Clinton, who was then chairing the opening session, said the famous words ‘Women’s rights are human rights’, thereby proclaiming rights for women as an inalienable part of the discourse on rights. The comprehensive idea of the right to control one’s body is a feminist principle that stresses women’s right to their sexual and reproductive capacity. It includes their right to informed and empowered consent and choice. This understanding of the right to one’s body is an integral part of liberal and Marxist principles too. In India the National Population Policy (NPP) 2000 (Government of India 2000) takes its basic philosophy from ICPD PoA and from the concerns of women’s organizations in the country, thereby taking into consideration the changing understanding on population, reproductive health, equity and rights. With the shift in international perspective influenced by ICPD, the government reflected its change of approach in the NPP 2000 by eliminating the use of contraceptive targets. The NPP is a historic document which reflects a shift from the earlier demographically driven, targetoriented policies to one that addressed special concerns of reproductive health. The NPP addresses the unmet needs for basic reproductive and

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child health services, supplies and infrastructure (Population Foundation of India 2010). The dilemmas and debates regarding reproductive rights of women are played out most clearly when one examines the issue of abortion. In the West abortion has increasingly become caught in a double bind. This is largely because the feminist understanding of reproductive rights and choice is eclipsed by the conservative response of the right to life of the foetus to be upheld over women’s rights. The persistent attempts by feminists to recover abortion rights for women continue to be their most major battle in the US. In India abortion services are available to women as a limited medical right under the Medical Termination of Pregnancy Act 1974. However, issues of safe and accessible abortion services remain. Intense son preference complicates the subject of abortion in the country. It leads to sexselective abortion, which in turn shapes the dynamics of the relationship between reproductive rights and feminist activism in fundamental ways. The contradictions and contestations embedded in these issues may pose challenges and have over time divided feminists; they nevertheless raise a critical point about women’s lives and their choices regarding matters of reproductive rights.

Sex-selective abortion in India The deficit of women in India and the possible factors responsible for it have engaged the attention of demographers, social scientists and social activists in India (Agnihotri 1995; Bose 2001, 2002; Patel 2007; Shiva 2002). What has been convincingly demonstrated is that the primary factor contributing to the deficit of women in India is the anomalous higher mortality among women compared to men (Visaria 2006). The decennial census reports are the primary source of accurate information on sex ratio. The deficit of females, especially in the age group 0 to 6 (what is called child sex ratio), has increased between 1981 and 2011. This deficit has triggered alarm bells since it has increased in spite of the overall improvements in mortality situation and a greater increase in life expectancy of women compared to that of men. Statistics show that the decline in the child sex ratio between 1981 and 2011 cannot be solely explained by discrimination against girls practiced in this region for several decades, because at no other time in the history of census taking has the sex ratio of children declined so drastically (Visaria 2006). Although there has been a consistent decline in sex ratio, an increase in the deficit of young girls noted in the four decennial censuses of 1981, 1991, 2001 and 2011 is indicative of a strong possibility that the traditional methods of neglect of female children have increasingly been replaced by not allowing female children to be born.

Abortion and reproductive rights 183 The practice of female infanticide has been known to exist in certain regions like Punjab, Haryana, Rajasthan and other states in the North-Western region (Malhotra 2002; Oldenberg 2003). With the advent of new reproductive technologies, this traditional gender-discriminatory practice has been replaced by sex-selective abortion. These reproductive technologies, which include amniocentesis and ultrasound for sex determination followed by sex-selective abortion, have spread to other parts of the country which essentially did not practice female infanticide. It was the third wave of the women’s movement in India, especially the Committee on the Status of Women in India in 1974, that recognized sex ratio as a composite indicator of women’s status. The decline in child sex ratio and the issue of ‘missing girls’ were raised by women’s groups. Due to their persistent lobbying and through seminars, debates and research, the issue gained prominence and was provided an appropriate environment to take firm roots in domains of enquiry – be it research, policy, advocacy or campaigns (Rustagi 2006). This eventually led to a ban of sex-determination tests in government hospitals in 1976. However, it only meant a partial ban, as it led to the proliferation of private clinics/hospitals offering the facility. Since then, different parts of the country have witnessed several campaigns against the misuse of science and technology for continued discrimination against women. In 1982, the Centre for Women’s Development Studies (CWDS) launched the first campaign. It was initiated by Vina Mazumdar and Lotika Sarkar in Delhi as a protest against an advertisement for Bhandari Antenatal Sex Determination Clinic in Amritsar, Punjab. The clinic was openly advertising its services through press, in railway compartments and in other public places. The advertisement referred to daughters as ‘liabilities’ to the family and a threat to the nation and exhorted expectant parents to avail the services of the clinics to rid themselves of this ‘danger’ (Nanda 2007). More campaigns like the Forum Against Sex Determination and Sex PreSelection (FASDSP) in 1985 in Maharashtra and the Campaign Against Sex-selective Abortion (CASSA), Tamil Nadu came up. FASDSP lobbied to regulate the practice of sex determination in Maharashtra by formulating a separate legislation, instead of modifying the Medical Termination of Pregnancy (MTP) Act, 1971, that had the danger of curtailing women’s right to abort. As a result, the Maharashtra Regulation of Use of Prenatal Diagnostic Techniques Act, 1988, came into being. Serious drawbacks in the state legislation and poor implementation caused the awakening of interest in the issue across the entire country. A move for an all-India ban on sex-determination tests gained momentum, and the Pre-Natal Diagnostic Tests (Regulation and Prohibition of Misuse) Act, 1994 (called the PNDT Act), came into existence.

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Though the PNDT Act came into force in January 1996, no visible evidence of decline in the practice of sex selection came forth. Lack of concern and political will to implement the legislation by the Centre and states led to a Public Interest Litigation (PIL) in the Supreme Court. The PIL was filed by three petitioners – Dr. Sabu George, a social activist, Mahila Sarvangeen Utkarsh Mandal (MASUM) and Pune and Centre for the Enquiry of Health and Allied Themes (CEHAT), Mumbai, in February 2000. In May 2001, the Supreme Court directed the Central Government to implement the PNDT Act in all its aspects and called upon all state governments to take necessary steps to implement the Act. However, a further dip in Census 2001 sex ratio suggested that this gender-discriminatory practice continued unabated in spite of the laws against it (Nanda 2007). In the light of new techniques available to determine sex before birth, it was felt necessary to amend the Act. From February 14, 2003, the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 came into force. After incorporating a few important changes, the PNDT Act 1994 was renamed as ‘the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act)’. Given these conditions it is important to understand sex-selective abortion in a wider perspective and along with debates on abortion in India. In 1965 a UN mission evaluating India’s population policy recommended legalizing abortion (Menon 2004). In 1966 the Shantilal Shah Committee submitted its report recommending that access to abortion be liberalized in order to put an end to a large number of illegal and unsafe abortions (Jalnawalla 1974). This Act, known as the Medical Termination of Pregnancy Act (MTP Act), was passed in 1971 quite independently of the women’s movement. It is, thus, believed that it is within imperatives of population control that the Indian state moved towards the legalization of abortion. Clearly then the legal sanction for abortion does not arise from feminist principles at all, but it exists nevertheless (Menon 2004). In fact, there exists a very influential school of thought in India which justifies the selective abortion of female foetuses as a form of population control (Contractor and Duggal 2003). While there is a need to recognize the right to abortion as a right for women to have control over their bodies, given that they have very few bargaining or negotiation powers when it comes to their reproductive choices, it is only a limited medical right that has been sanctioned to them by a population-control lobby. The gender dimensions which are present in the phenomenon of sex-selective abortion and its perpetuation through coercive population policies must be examined further (Rao 2001). Evidence from some parts of India suggests that termination of pregnancies was resorted to not for the reasons stated under the MTP Act but because there is a strong son preference leading to sex-selective abortions.

Abortion and reproductive rights 185 The gender bias was flagrantly aided by a combination of medical technology on the one hand and the liberal abortion laws that helped couples to abort female foetuses on the other (Visaria 2006). Therefore, the issue of sex-selective abortion brings into the fore the discrimination against women in society at multiple levels. First, there is a barrier at the level of birth; and secondly, women’s fertility and reproductive choice are controlled by societal conditioning premised on the ‘worth of girls’. The proliferation of new reproductive technologies and a consumerist market use a pro-choice language to reinforce anti-women practices, i.e., in negating the right to be born as females.

The state in India and policy responses The state in India follows two distinct approaches in terms of policy response to the issue. The first addresses the demand for sex-selective abortion from families, which is in the form of providing financial incentives to enhance the worth of girls. The other is to address the supply of new reproductive technologies for sex determination by legislation, that is, the PCPNDT Act. These two approaches are common to most policy responses regarding gender justice. In discussing discourses of the state in Britain regarding gender equality, Kantola mentions the crime discourse which associates the state with providing law and order and the equal opportunities discourse where the state had a role in providing women and men with the same chances (Kantola 2006: 157). So in this vein of the crime discourse and the equal opportunities discourse the state in India has unfurled a comprehensive national legislation, that is, the PCPNDT Act and a Conditional Cash Transfer (CCT) strategy in many states in order to counter sex-selective abortion and provide for gender justice. The PCPNDT Act (Pre-Conception and Pre-Natal Diagnostic Techniques Act), 1994 (as amended in 2003), is a comprehensive piece of social legislation which emerged due to active involvement of women’s groups and a sustained campaign. As the law stands today, it has two objectives to fulfil. The first is to regulate the prenatal diagnostic procedures, and the second is a total prohibition of ‘sex selection’, a term defined primarily to denote any kind of pre-conception test or method used for sex selection (Jaisingh 2007). The Act is largely unused due to a complex nexus among medical practitioners, families seeking the service and the government machinery. The other issue that impacts the implementation of this legislation is related to the feminist groups, especially a section of the pro-abortion feminists. They are of the opinion that a strict implementation of the PCPNDT Act will lead to essential abortion services going underground. As women and families begin to feel the pressure of these external campaigns, they

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might begin to resort to unlicensed providers and resist medical care, endangering the health of women and their babies (Sarkaria 2009). This section of the pro-abortion feminists thus wants to steer clear of the issue of sex-selective abortion. Since they make their arguments for abortion on the basis of choice, they feel it is untenable for them to make a case for denying women the choice to determine the sex of the foetus. Other sections of the pro-abortion feminist group, however, continue to engage with the complexities of the issue at hand. Sarkaria elaborates upon this in the context of the United States. According to her, pro-abortion feminists in the reproductive justice movement perceive the narrow notion of individual choice as exclusionary and even incompatible with the reality of many women’s lives. The movement seeks to expand the concept of choice. She cites April Cherry, who states that ‘the right to choose means very little when women are powerless’ (Sarkaria 2009: 940). The criminalization of sex-selective abortion is thus important because it takes into account the implausibility of an empowered choice in a context where women may be coerced or conditioned to do sex-selective abortion. It also critiques the basic reason for the choice, which is the prejudice against daughters in society. It highlights the role of the medical practitioners who provide sex determination and conduct sex-selective abortion in rampant violation of the Act. While the pro-choice feminists’ approach to abortion is to protect individual women’s decisions, sex selection and sexselective abortion fall outside this ambit of choices. The government has unfurled a number of schemes, both at the Centre and in the states, to incentivize the birth of girls in India. Most of them are CCTs. They include the Girl-Child Protection Scheme in Tamil Nadu, Balri Rakshak Yojana in Punjab, the Ladli scheme in Delhi and Haryana and many others and the Beti Bachao Beti Padhao (BBBP) campaign in 100 districts of India which have the lowest child sex ratio. The schemes except for the BBBP are mostly in the form of financial incentives of cash deposits which are delivered at the end as a lump sum between Rs. 12,000 in some states and Rs. 1 lakh in others. The scheme, which seems benign and well intentioned, comes with a set of eligibility criteria and conditionalities. The eligibility criteria are tied up with restricting the number of children and the income criteria of parents. Feminists have questioned the population-control mindset of the government. According to studies by feminist research scholars, the linking of financial incentive schemes for girls to an insidious population-control policy has an adverse impact on girls. It can increase sex-selective abortion and also the vulnerability of girls who fall outside the ambit of the schemes. Moreover, it stigmatizes the poor, making them seem like the guilty when it comes to sex-selective abortion, whereas it is clear that the poor are the last in the queue to discriminate

Abortion and reproductive rights 187 against girls. The BBBP campaign combines the strict implementation of the PCPNDT Act to counter sex determination with incentivizing education for girls in order to break the myths and stereotypes about daughters being liabilities. Feminists have thus critiqued these schemes and have asked for a review of the same in order to rid them of their gender-insensitive and contradictory elements. So while pro-abortion feminists critique the PCPNDT Act for overlapping on the right to abortion and ask for its complete withdrawal, others would like to see this law retained while protecting the right to safe and legal abortion. Some outrightly reject the conditional cash transfers for protecting girls, while some believe it can be retained if reviewed in the light of the critique presented by them on its gender-insensitive elements. The emphasis thus is to understand the importance of each feminist position and suggest ways to reconcile them in order to engage with the issue of sex-selective abortion. This reconciled position can be defined as a syncretic feminist perspective. The aim here is to demonstrate that a syncretic feminist position with an in-depth and holistic understanding of reproductive rights is the most appropriate approach to be used in the context of countering sex-selective abortion in this country.

Discourses: debates and dilemmas The discourse on rights is best exemplified in the various debates and dilemmas present in the state and global narratives concerning sex-selective abortion in India. The situation of competing rights – the conflicting claims of the family to choose the sex of the foetus – and the right to life of the foetus are poised against each other. The rights of women to exercise their reproductive choices and not to be either coerced or conditioned to abort it because of it being female is not effectively articulated in this scenario. The discourse therefore is by no means a simple one; however, the significance of reproductive rights in its holistic and syncretic sense cannot be overridden. The predominant frames of the debates are three, which I elucidate here – the Equality versus Demographic Discourse, the Crime versus Justice Discourse and the Rights versus Ethics Discourse. A detailed examination of the same follows here.

(a) The equality discourse versus demographic discourse Feminist voices on sex-selective abortion have raised concerns about declining sex ratio as a significant indicator of women’s status. The approach of the syncretic feminist perspective is to view women as equals who are denied their equal status due to a multitude of factors. Some of these

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factors include: fewer access to opportunities in education, employment, political participation as well as entrenched patriarchal structures and institutions at play. The significance of equality to feminists here is marked by their efforts to persuasively establish a dichotomy between the Medical Termination of Pregnancy (MTP) Act and the Pre-Conception and PreNatal Diagnostic Techniques (PCPNDT) Act, to constructively critique the misuse of reproductive technologies and to emphasize improving the status of women in society. The affirmation of women’s role as central to development represents a major victory for women’s movements and gender equality advocates who have been struggling to make their voices and perspectives heard by policymakers. At the same time, there is a concern about the extent to which these commitments get translated into reality on the ground and the widening gap between policy pronouncements and practice (Menon-Sen 2013: 162). The state has in this sense remained distanced from the substantive equality model. The conditional cash transfers which were available remained steeped in a cultural context of daughters who are devalued and the social constraints that exist for their family due to their birth. In some states there are no separate conditional cash transfers for girls. A few CCTs that may exist focus on reproduction with maternal and child health as their major concern. The central government’s National Rural Health Mission (NRHM) is the overarching framework for both regions in this matter. The Janani Suraksha Yojana (JSY) is invoked as the panacea for all maternal and child health issues.1 The value structures that inform the states in their negotiation of the idea of gender equality are flawed. There is an instrumental construction of women as mothers or in the context of the demographic narrative as numbers which are ‘missing’ and need to be restored in order to bring about balance in population. In Punjab, which had the dubious distinction of being the worst state when it came to its child sex ratio (CSR) in 2001, the state unfurled a range of policies and programmes, donor-driven activism and funded projects when the 2001 census reports came out. The dubious distinction of having the worst child sex ratio in India made sex-selective abortion a priority issue to be tackled by the state. Once the child sex ratio showed marginal improvements, all such programmes were put on the back burner. In some states in the eastern zone like Odisha for example, the 2011 census did reveal a decline, but since the decline is not stark compared to other states, serious engagement on the issue is still not visible. The demographic discourse emerged through the writing of Amartya Sen and others, and feminist perspectives highlighted it in order to alert the state to the dismal status of women. However, the state’s tendency has been to construct the notion of gender equality here in sex-neutral rather than sex-specific ways.

Abortion and reproductive rights 189 An acknowledgement of the personhood of women and the range of structural, cultural and material inequalities they face remain on the fringes of state discourses. The capacity for the state to re-imagine women in terms of equal citizens whose constitutional guarantees are being undermined by sex-selective abortion is a far cry. The obligation upon governments and state agencies to protect and promote the right to equality for women are seldom fulfilled, nor is its enforceability a mandate. The approach of the state is to address and redress the issue as a demographic concern and as a social evil. It is not surprising since the baggage of cultural factors which are seen as immune to state intervention has defined the lack of equality for women in India in the context of sex-selective abortion. Daughter aversion has been seen by the state as emerging from a cultural context where families due to cultural beliefs and superstitions eliminate them. It is worthwhile to note that institutional norms, practices, incentives, disincentives, rules and regulations are equally responsible for obstructing women’s right to equality. The critical examination of conditional cash transfers has revealed how, while they were ostensibly tied to enhance the worth of the girl-child for the family, they were ironically linked to gender-disempowering elements like limiting number of children, sterilization, age limit and such other matters. The state in India is, thus, driven by the demographic narrative. The decline in numbers of women in India figures in world statistics and reports. It leads to a lower rank of India in terms of its position on the Human Development Index (HDI) and other forms of measurement like the Gender Empowerment Measure (GEM) and Gender Development Index (GDI). The state has utilitarian arguments about the need for women as wives and mothers. Many of the initiatives of the state have exemplified this where the state’s instrumental rationality of women’s health is seen in terms of focusing only on childbirth visible in the reproductive and child health programmes as well as in the intent and objectives of the NRHM. Many of the communication materials, especially in Punjab and Haryana where there is a deficit of women, also reveal other elements of this utilitarian stance. By presenting contemporary examples of how men now find it difficult to get brides because of the dwindling numbers of women, they implore families to keep their daughters for this reason. This fails to take into account that in many parts of India the decline in the number of women has led to a double burden on them. The practice of coerced polyandry has resulted in daughters getting eliminated, even as brides are bought and sold. Given this reality, the utilitarian argument about women’s ‘use’ as ‘providers of sex and sons’ is essentially anti-women (Nanda 2013). There is very little attempt to perceive the inequalities within marriage, its predominantly patriarchal structure and the potential for violence within it. The state

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discourse is also about restoring balance in the ratio through various interventions to enhance the value of the girl-child. This discourse, therefore, is premised, as is the case with the global discourse, on an instrumental distinction between rights of the girl-child and of women. The benign and emotive subject of the right of girls to be born is pitted against the image of regressive families which let their cultural backwardness obstruct that right. At the same time any reference to gender equality remains purely incidental. While misuse of new reproductive technologies stands defined under an available legislation, i.e., the PCPNDT Act, the state remains an unwilling partner here in terms of fixing blame.

(b) The justice discourse versus crime discourse While the dominant global discourse does engage with legislation in terms of banning sex determination, it is a complex one. Thirty-six countries across the world have banned sex selection either totally or for social non-medical uses in Europe, Asia and North America. Twenty-five such countries are in Europe and eight in Asia, in addition to Canada in North America and Australia and New Zealand (Darnovsky 2009). The United States is a major exception in the West, which has no such legislation at the national level.2 However, a bill known as Prenatal Non-discrimination Act was introduced by Representative Trent Franks, Republican of Arizona, a state which already has such a legislation, which would punish doctors with up to 5 years in prison for performing sex-selective abortions and race-selective abortions because the parents seek a child of the other sex. The bill was defeated in the house on 31 May 2012 and could not become a law. Apart from the main opposition to the bill in terms of it being restrictive of women’s choice for privacy and being anti-women (Steinhauer 2012), its racial overtones also came for pronounced criticism. The introducer of the bill had cited studies which showed evidence of sex-selective abortion among Chinese-, Indian- and Korean-American families through the US Census 2000 data. However, it was pointed out that the study was not detailed enough to pinpoint the cause of the disparate ratios – whether it was due to pre-pregnancy techniques involving fertility treatments or sex-selective abortions. In addition, they commented that these three ethnic communities constitute a very small proportion of the US population. The introducers of the bill had also relied on interviews with 65 immigrant Indian women, a sample too small to inform a national legislation (Barot 2012). Clearly the opponents of the bill in general and Asian women’s rights groups in particular feared targeting of Chinese, Indian and Korean communities through this legislation.

Abortion and reproductive rights 191 Reproductive justice and Asian women’s rights groups, in fact, cite myriad problems that sex-selective abortion bans could create. At the most practical level, such restrictions are neither enforceable nor effective, as already demonstrated internationally. And various attempts to enforce them, they stress, would only perpetuate further discrimination in their communities through stereotyping and racial profiling of Asian women whose motivations for an abortion would be under suspicion. In a recent op-ed explaining their opposition to PRENDA (Prenatal Non-discrimination Act), the executive directors of NAPAWF (National Asian Pacific American Women’s Forum) and the National Latina Institute for Reproductive Health wrote: ‘Immigrant women already face numerous barriers to accessing health care of any kind, including reproductive health care and abortion, and this ban would make an already difficult situation far worse’. (Barot 2012) By making efforts to ban sex-selective abortion, to curtail abortion rights in general and to target select Asian communities in particular, such discourses create barriers for ethnic populations, especially Indian and Chinese. The justification for this perceived discrimination is derived from the demographic profile of the ethnic population in terms of female deficit and also inferred from attitudinal studies of the community revealing an intense son preference. At the same time, remarkably, the legislation to control the development in reproductive technologies, especially for more specific ‘baby shopping’, does not exist. Baby shopping is being made possible through genetic engineering with the help of eugenics where prospective parents can flip through a catalogue and shop for traits to ‘design’ their children. Genetic engineering is the deliberate modification of an organism through the alteration of its genetic code. By removing sections of an organism’s DNA and replacing them with new segments, geneticists can artificially select for certain traits. These techniques are being perfected through experiments on plants and animals and as scientists continue to uncover the secrets of the human genome. Engineered organisms, such as glow-in-the-dark cats, abnormally muscular cows and insect-resistant corn, have already been successfully developed, and designer babies may be next (Catalano 2012). A designer baby is defined as ‘a baby whose genetic make-up has been selected in order to eradicate a particular defect, or to ensure that a particular gene is present’ by the Oxford English Dictionary.3 The Human Genome Project has already mapped out every gene and chemical base pair of the human genome, and scientists continue to uncover the effects and interactions of each gene. And now the process of in-vitro fertilization provides access to the genetic material within.

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This reproductive technology is being promoted without any considerations of regulations and the implications for sex selection. Michael Sandel is one of the most influential critics of the research to create perfect babies whose eye colour, tastes, intelligence and sex can be genetically mapped and coded and produced. Perhaps the most inevitable nonmedical use of bioengineering is sex selection. For centuries parents have been trying to choose the sex of their children. Today biotech succeeds where folk remedies failed. . . . If sex selection by sperm sorting is objectionable, it must be for reasons that go beyond the debate about the moral status of the embryo. One such reason is that sex selection is an instrument of sex discrimination – typically against girls, as illustrated by the chilling sex ratios in India and China. (Sandel 2004) The idea of regulating such research through legislation has been likened to controlling cures for baldness by proponents of eugenics. The regulation of sex determination for only the ethnic communities like Indian, Chinese and Korean in the United States and Europe has also been critically examined. In UK abortion purely on the grounds of sex is banned by the Abortion Act, 1967. However, it does not ban the doctor from communicating the sex of the foetus to the parents during ultrasound scans. New reproductive technologies like sperm separation for pre-conception sex selection are not covered by any law. In the United States, like in other developed parts of the world, sex determination is allowed. Its use is rationalized on the basis that couples in their countries are essentially gender sensitive, so their desire to have gender variety or balance in family size and composition should be allowed. However, the practice of targeting South Asian immigrants through making these tests illegal or difficult for them to acquire has also been criticized for leading to a stigmatization of the community. Doctors, clinics and ethicists in countries like the United States have delineated this part of the practice as being sexist and therefore unethical while continuing to argue that sex-selective family balancing is ethical. This has served to limit the discussion on the other gender aspects embodied in the use of these technologies. Malik argues convincingly that there is a need to articulate clearly the universality of the gendered context of the use of these technologies for sex selection in all socio-cultural milieus. In other words, there is a need to move away from son preference as the only measuring yardstick to evaluate the sexist use of these technologies. She further highlights the need to oppose the growing trend of the use of reproductive technologies

Abortion and reproductive rights 193 for non-medical, non-compelling reasons. Family balancing is one such ‘cosmetic use’. We need to emphasize that non-medical use of these technologies does not necessarily mean they do not carry reproductive health burdens for women as a result of the use – a fact that is often ignored (Mallik 2003). The International Human Rights Clinic at the University of Chicago Law School, the National Asian Pacific American Women’s Forum and Advancing New Standards in Reproductive Health at the University of California, San Francisco, released a report on sex-selective abortion laws and policies in the United States recently. The findings of the report allude to the stigmatization of Indian and Chinese families due to the presence of such laws. The report says in its findings ‘though Asian Americans are most discussed by lawmakers trying to pass sex-selective abortion laws, two countries, Lichtenstein and Armenia, have male skewed sex ratios at birth as high or higher than India and China’ (Citro 2014). In India the legislation is mainly concerned with the misuse of reproductive technologies, especially in terms of sex determination. The low conviction rate in terms of the magnitude of the crime, as defined under the PCPNDT Act, is a cause for concern. It is also a testimony to the fact that it has not received serious attention from policymakers and implementers. The state discourse here is that since there is a nexus between the families seeking sex determination and the doctors providing it, it is very difficult for the state to intervene in the matter and to be able to catch the culprits. The abject helplessness that the state ostensibly demonstrates in the face of rampant misuse of reproductive technologies also reveals limitations in terms of defining the issue. The state discourse, similar to the global discourse, views it as a crime against the unborn girl-child by their families. It also regards it in terms of cultural backwardness of the community which indulges in such practices. The medical professionals offering the service do not figure in concrete terms within the state discourse. This discourse in India, like the global discourse, is thus underpinned by the cultural norm. The demand for gender justice here tends to be legitimate only from the position of protecting the rights of the unborn girlchild rather than in terms of women’s rights, choice and agency. In fact as stated earlier, the state discourse as well as popular discourse defines it as a crime of mother vs. daughter or mother-in-law versus daughter-in-law. The appeal highlighted by communication materials which are developed to create awareness generation are highly emotive, mostly pleadings of the daughter to the mother.4 In Punjab the monitoring or tracking of pregnancies of women demonstrates this crime discourse clearly. It is not defined in the language of the justice paradigm that is central to the feminist perspectives, which view it as

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a crime against women and as one emerging from a range of causes which are inextricably linked. In a succinct study on laws favouring son preference in India, leading legal feminist Kirti Singh deconstructs legal instruments which directly or indirectly influence son preference in India and thereby lead to sex selection. She critically examines the elements and features in the laws which are favourable to sons and perpetuate gender discrimination. She also points out how justice is also denied by the attitudes and orientations of law-implementing agencies like the judiciary. A close reading of judgements and judicial process which has been examined in the study has brought these facts to the fore (Singh 2013). Mitu Khurana, who is a woman complainant under the PCPNDT Act, believes that she faced the maximum opposition from implementing authorities and the judiciary. Her struggle for justice which is now 6 years in court is symptomatic of most such cases. The lackadaisical approach of the law-implementing authorities within the government and the judiciary reveal the limitations of the efficacy of these laws and their adjudication. In her reflections Mitu has gathered together the statements of different judges who have been sitting on her cases. The various statements include: If you want to save your daughters from harassment, withdraw your cases and do a settlement with your husband. Otherwise I will see to it that you have to bring your daughters to the court on every hearing. Laws are meant only for books and lectures. Do not think you will get anything from the courts. Tell your price. What will you take to withdraw your cases? You are the enemy of your daughters; you are destroying their life only because of your ego [. . .]5 A slew of more punitive laws on sexual harassment and rapes have emerged in India following a much-reported gang rape and murder of a paramedic student in Delhi in December 2012.6 Ratna Kapur, who in her earlier work had taken a position that legal interventions are useful when it comes to gender justice (Kapur 1996, 1999), has complicated her opinion since then. According to Kapur today too much of legislation, especially with stringent punitive implications, may be counterproductive as far as achieving gender justice is concerned (Kapur 1996). The record of patriarchal judicial systems and victimization of the victim in courtroom proceedings also add to the obstacles. Ratna Kapur disagrees with Nussbaum’s idea in Sex and Social Justice (Nussbaum 1999). She does not outrightly reject the liberal ideas posed by Nussbaum but critiques the hegemonic ideals of liberalism in a multi-layered and nuanced manner. Speaking about sexuality, Kapur points out how laws and culture can interact and overlap with each other

Abortion and reproductive rights 195 creating a nexus which is reinforcing conservative and patriarchal positions about women. Through her focus on women’s sexuality in India, Kapur reveals how self-appointed guardians of Indian culture reaffirm dominant gender ideologies. She uses the track of the controversies surrounding the films The Bandit Queen and Fire, anti-sodomy law (Section 377) and the anti-trafficking law (the Immoral Traffic Prevention Act) to do so. In Mitu’s situation, the statements of judges and implementing authorities on her case do show the reflection of their patriarchal consciousness and the intermeshing of women’s sexuality within it. The legitimate role of women to be considered within the institution of marriage and their fertility and sexuality to be defined within the norms of marriage makes it difficult to have a gender-egalitarian position. So a liberal rights discourse as supported by Nussbaum which emphasizes that feminism and social justice have common concerns misses the way in which an enabling legislation can be subverted by the ideological consciousness of its implementers. It also does not recognize the possibility that some of the legislation irrespective of their genesis, i.e., having developed through feminist struggle, may continue to have gender-discriminatory elements or gender-neutral elements where the interpretation by a patriarchal judicial authority may not deliver the goods so to speak. By ‘gender neutrality’ one is referring to those elements in the law that are in a neutral language to mark their objectivity. The PCPNDT Act was enacted with the purpose of not overlapping over the right to abortion of women in India. The intent of the law is quite clear. It is meant to be a gender-enabling legislation. However, in its provisions and its specifications there is reference to gender discrimination only in two places. In one place it mentions ‘female foeticide’ and in another it says ‘the woman will be presumed innocent unless proven otherwise’. The rules and procedures of the law are detailed, cumbersome and written with technical details especially about medical services. Although a lot has gone into the making of this law and it is comprehensive, the so called technical features, which make sense perhaps to the experts in the field and feminists and activists who have been involved in the making of this legislation, make little sense to authorities who implement the law. In comparison, the simple outlaying of laws like Protection of Women from Domestic Violence Act and Protection of Women from Sexual Harassment at Workplace Act makes it difficult to a great extent for implementing authorities, irrespective of patriarchal attitudes, to interpret the law according to their mindsets. The syncretic feminist position will, however, mean combining elements from both Nussbaum and Kapur here. While understanding that liberal rights talk may be hegemonic or counterproductive as Kapur says, it is important to retain a basic minimum from the rights talk as purported by Nussbaum. It is also important to negotiate with that kind of universal

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rights talk and expose its limitations and reveal the problems of the specific cultural and ideological consciousness in the locations and sites where these rights are being talked about. Strategizing the field in order to counter gender discrimination is very significant here. The application of the strategies and theories to the lived reality of sex-selective abortion in India requires an ability to go beyond critique and engage with the emancipatory potential of its elements. Theoretical understandings on justice go beyond ideas of mere procedural legal justice. The most ambitious attempt to answer this question was provided by John Rawls in his 1971 book A Theory of Justice. Rawls argues that ‘A well-ordered society is effectively regulated by a public conception of justice’. This means that all citizens would use their reason to choose the same principles of justice. To put Rawls’s conclusion succinctly, we would insist on being treated equally while permitting those inequalities that benefit everyone, especially the least prosperous among us. The principles for protecting the life chances of the disadvantaged members of the community are chosen because we adopt ‘the veil of ignorance’ to conceal our own natural talents and our social circumstances that might bias our thinking, we would fear that we might be among the least well-heeled (Schumaker 2010). This egalitarian idea of justice has been put to many criticisms. Notable amongst them are Sen and Nussbaum’s capability approach and Okin’s feminist critique. Sen’s sophisticated argument is that by concentrating on the means to freedom rather than on the extent of freedom, Rawls’s theory of a basic structure of society has stopped short of paying adequate attention to freedom as such (Sen 1995: 86). Based on this understanding, Sen developed his capabilities approach. The assessment of individual claims is not in terms of the resources held but the freedom they actually enjoy leading the lives they value (Sen 1995: 81). Nussbaum considers the capabilities approach an alternative to Rawls. In her own words, ‘the alternative then, is the capabilities approach, an approach that has been developed in somewhat different ways by me in philosophy and by Amartya Sen in economics’ (Nussbaum 2006: 70). She goes on to further add, In Women and Human Development and elsewhere, I argue that the best approach to this idea of a basic social minimum is provided by an approach that focuses on human capabilities, that is what people are actually able to do and to be, in a way informed by an intuitive idea of a life that is worthy of the dignity of the human being. (Nussbaum 2006: 70) She identifies a list of central human capabilities, arguing that all of them are implicit in the idea of a life worthy of human dignity. In her work Frontiers

Abortion and reproductive rights 197 of Justice she analyses three social issues which could not be resolved or even partially addressed by traditional theories of justice. These include the problem of achieving justice for persons with physical and mental disability, of extending justice to all citizens of the world and lastly the problem of doing justice in relation to the treatment of non-human animals. Her critique of Rawls is premised on the ground that there is no watertight definition of what justice is in the contemporary context (Nussbaum 2006). The approach, both in Sen’s understanding and Nussbaum’s expansion, is more than just a theoretical engagement with the idea. It explores its application in the real world. In fact, in her most recent work Nussbaum makes a case for love in matters of justice (Nussbaum 2013). According to Nussbaum, a decent political culture cannot survive without cultivation of some emotion. She categorizes three emotions that pose problems for what she terms ‘compassionate citizenship’. These include envy, fear and shame. There is a need for emotion and compassion to motivate and sustain altruistic actions and egalitarian institutions. She talks about political emotions rooted in love, which she explains as: embracing imperfection while striving for justice. Just as personal love and friendship are at their best when they are directed not at ideal images of the person, but, instead, at the whole person with flaws and faults (not, of course, without criticizing or arguing), so too with love of a city or country: it gets under one’s skin, is undeterred by imperfection, and thus enables diverse people, most of them dissatisfied with reality, but in many different and incompatible ways, to embrace one another and enter a common future. (Nussbaum 2013: 393) Okin’s well-known criticism of Rawls’s theory of justice in Justice, Gender and the Family is devoted to exposing the way in which contemporary political philosophers fail to take sexual difference into account, despite their use of gender-neutral language (McKinnon 2011: 275). She argues that any theory of justice which is silent about the inequalities within the family is an incomplete one. Carole Gilligan argues for the feminist ethics of sentimental care to replace the masculinist sense of justice. Wolff and De-Shalit say that the government’s responsibility in the attempt to achieve social justice should be to ‘decluster disadvantage’, which would be, in effect, to arrange society so that there is no clearly worst-off group (McKinnon 2011: 187). The theoretical terrain of justice is rich and variegated. It raises questions of rights, entitlements, equality, capability, sensibility, disadvantage, choice and freedom. But the state in India in general and in the context of sexselective abortion in particular chooses to restrict itself to the crime and the

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equal-opportunity discourses. The crime discourse, which is about restoring law and order, is stated clearly in the state policies and programmes, best exemplified by the PCPNDT Act. However, as stated earlier, the implementation of the law leaves a lot to be desired. The spirit of the law decriminalizes women, but the implementing authorities do tend to see it as an issue which is gender neutral. Secondly, in the equal-opportunities discourse, the CCTs are unimaginatively rolled out with contradictory elements which actually enhance gender discrimination. The justice discourse, for all practical purposes, thus, remains distanced from the ambit of state interventions. While the notion of legal justice is validated through the legislation (PCPNDT Act), it becomes diluted due to states’ overemphasis of sexselective abortion as a social evil. That this is an expression of misogyny and gender discrimination, as underlined by feminist perspectives, has not been recognized by the state. Thus, the substantive idea of gender justice is also undermined. In short, the state remains unresponsive to questions of justice in countering sex-selective abortion.

(c) The rights discourse versus ethics discourse That ‘little girls’ are ‘mercilessly’ aborted by their parents due to an intense son preference and daughter aversion makes a case for an ethics discourse. The ethical claim of the little girls’ right to life here acknowledges the impact of socio-cultural factors, but it is used to further drive a point about the right to life of foetuses. Many pro-life organizations supported by the church and other missionary agencies, in both the global and the local domains, have used the issue to demonstrate the ethical issues regarding abortion. Campaigns have been mounted on the issue sanctifying the right to life. They have tried to challenge the arguments of the pro-choice lobby for abortion by citing the concerns around sex-selective abortion. Eight states in the United States currently have laws prohibiting sexselective abortion. Twenty-one states and the United States Congress have considered bills banning sex-selective abortion. Proponents of laws banning sex-selective abortion in legislatures and civil society groups around the country claim that the laws will prevent gender discrimination. However, upon closer examination it becomes clear that restricting access to abortion is the general motivation for sex-selective abortion bans in the United States. In the United States Congress and state legislatures across the country, politicians who sponsor sex-selective abortion bans are at the forefront of the movement to make abortion illegal (Citro 2014: 22).7 Proponents of sex-selective abortion bans have explicitly stated that the laws are actually part of the effort to restrict access to abortion entirely. In 2008, Steven Mosher, the head of the Population Research Institute

Abortion and reproductive rights 199 (a leading anti-abortion group), stated, ‘I propose that we – the pro-life movement – adopt as our next goal the banning of sex and race-selective abortion’ (Citro 2014: 21). The report of the Human Rights Clinic of the Chicago law school says that the language used in laws banning sex-selective abortion also suggests that lawmakers are concerned primarily with restricting access to abortion generally, rather than combating gender discrimination. For instance, the language used in the bill pending in the United States Congress consistently refers to the ‘unborn child’ and defines abortion based on sex as intentional killing. (Citro 2014: 23) There is an appeal to ethics here which highlights the necessity and significance of protecting the right to life. By using the example of sex-selective abortion, the pro-life lobby globally has strived to build a strong case to strike down the right to abortion for women. The state in India has steered clear of the ethical claims. Since abortion in India is steeped in the population discourse of controlling numbers through curbing women’s fertility, the pro-life arguments are not tenable here. However, in terms of communication materials generated by the state for awareness, overlaps on the right to abortion do exist. Use of religious groups for advocacy also leads to ethical and moral claims around right to life which demonstrate the importance of life per say without engaging with the nuances of gender. In Punjab for example, the Akal Takht gave the first call against sex-selective abortion.8 Religious tropes have been liberally used in the campaigns to talk about the girl-child. Even global bodies like the United Nations Fund for Population (UNFPA) and the United Nations Children’s Fund (UNICEF) have used religious groups to campaign for the cause of the girl-child.9 This overlap of the pro-life discourse is also visible in various initiatives of the state in Punjab, where the burden of punitive measures falls on the mother of two daughters. The monitoring of pregnancies in order to curb sex-selective abortion has identified her as the most likely culprit. The overlap over the right to abortion as well as the right to privacy and bodily integrity of women have been against the very notion of reproductive rights espoused in the state’s National Population Policy, Reproductive and Child Health Programme, Medical Termination of Pregnancy Act, etc. (Government of India 2001). To take up the case of Odisha as a contrasting example, issues of infant and maternal mortality have received more serious attention. Sex-selective abortion has not been couched in terms of the right-to-life issue. In fact,

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the tendency in Odisha was to reject the premise of sex-selective abortion and to term it as abortion arising out of ‘illegitimate pregnancies’. So the ethical concerns were about the lack of morality in ‘young unmarried women’ whose ‘promiscuous behaviour’ gave rise to unwanted pregnancies. The official position is that it is these unwanted pregnancies that led to abortions which have been wrongly identified as sex-selective. More crucially for Odisha, the devaluation of daughters noted in the 2011 census has not been found significant enough for the state to be actively involved in the issue. So the ethical discourse emerging from the state, as evident from the research, revolves around three elements: the pro-life approach, the role of women in terms of reproduction and the understanding around women’s sexuality. The state defines women’s bodies in terms of their reproductive role. Policies and programmes which refer to women are usually in the domain of reproductive and child health, maternal health and so on and so forth. The other engagement of the state in this arena is with the issue of sexual harassment, sexual violence and domestic violence. In this engagement the sexuality of women comes to be defined and circumscribed around honour and marital status. The child’s right to life is a very powerful argument against the woman’s right to choice. The state’s emphasis on monitoring pregnancies emerges from this high moral stance. Since first-trimester abortion is off limits due to a legislation allowing it, and also because of its utility to the state in controlling population, the next best method has been seen to monitor women’s pregnancies. In Odisha this scenario has veered to another form by placing blame on women by defining their sexual boundaries. The emphasis on marriage as a significant indicator of women’s status, the circumscribing of women’s legitimate sexual role, as wives has a bearing on the issue. So instead of a set of inalienable rights emerging on the basis of autonomy, informed and empowered choice and freedom, the state, as evident by the official engagement in both the disparate regions, views the issue as a ‘social evil’ not amenable to state intervention. It also views women as the primary cause of the problem. The criminalization of women not so much in convictions but in official engagements, courtroom discussions and popular understanding is a matter of central concern in this study. Women as litigants, supplicants and activists become a source of irritation to the state, as ‘problems’ to be dealt with (Sunder Rajan 2003: 28). What sort of rights discourse is then most suitable to examining sexselective abortion? Ronald Dworkin’s explanation of rights creates a support for the claims derived from constitutional guarantees. The idea of ‘rights as trumps’ describes the status of those constitutional rights that are used by courts in some jurisdictions to override legislation, even if that legislation has been democratically endorsed and serves the public good

Abortion and reproductive rights 201 (Mckinnon 2011). Then there is the set of negative rights making claims for autonomy based on the notion of freedom from state intervention supported by Locke in the classical liberal ideas to contemporary libertarian Nozick. The debate between negative liberals and positive liberals on rights is basically about freedom from and freedom to. This debate is echoed in the political theorization of liberal egalitarians and libertarians (Dworkin 1977). However, the complexity of the practice of sex-selective abortion makes it difficult for the range of liberal ideas to sufficiently ground it. The question of whose rights becomes of paramount significance. Then emerges the question of freedom from what? And freedom to do what? The rights of women to choose have been extended to arguments about choosing the sex of the foetus. The right to have children, not to have children, the right to a range of contraception including abortion and the right to bodily integrity and autonomy all resound with a liberal rights paradigm. However, determining the sex of the foetus and terminating it if found female is difficult to justify in this context. The feminist perspective is that the basic premise of this choice is derived from a negative notion of women’s worth. Tied up with this idea is the notion of ‘self-esteem’ of women which is derived from a society which tends to devalue females. This notion of self which leads to the conceptualization of autonomy and agency for women has been a central focus of feminist theorizations. There are two possibilities here for feminists. Either they reject the idea of an individual self, unencumbered by socialization and social expectation, or they accept that women do act on their own. The syncretic feminist perspective, while accepting the notion of a ‘self’ dependent on societal norms and expectations, also believes and encourages the possibility of an ‘individual self’ which has agency and autonomy (Agarwal et al. 2006). The idea of reproductive rights popularized by radical and socialist feminists has offered answers in terms of a range of rights (Petchesky and Judd 2001). The link between rights and capabilities is also a significant one. It is hard to theorize a rights discourse on the issue, but it is not impossible. Feminist theorizing offers a range of possibilities with categories established on specificities and commonalities. The notion of sex-selective abortion as gender discrimination is derived from a feminist academia and activist perspective. The dominant global perspective has been to examine it in terms of an ethical claim of the right to life. However, the global discourse from rights-based bodies like the UN and others has been concerned about the rights of women and in this context specifically about reproductive rights. The analysis of these discourses illustrates the overlap and consensus between state and global discourses on the issue of sex-selective abortion. In these discourses, the place of women is in the reproductive role of mother, and the idea of gender equality is restricted to the right to life

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of the girl-child. The political economy of new reproductive technologies, both globally and locally, and its severe impact on this issue remains peripheral to the discourses. The ethical claims are underpinned by the pro-life discourse without any allusion to choice, agency and rights of women in this context. Both at the theoretical level and at the level of actual policies and schemes directed at women, the engagement with gender discrimination here remains full of contradictions, contestations and challenges. The competing discourses which are informed by feminist perspectives, both at the local and global levels, provide an alternative understanding of the issue. The integration of these feminist discourses into state and global structures, institutions and reflections may create a critical space to explore the context here in a manner which will stimulate and revitalize the muchneeded commitment to counter gender discrimination.

The syncretic feminist perspective with an intersectionality approach The UNFPA in India has been working closely with the issue of sex-selective abortion for the last 12 years. They have supported civil society initiatives to counter the issue. They have also steadfastly followed a consultative process of working by listening both to feminists in activism and academia and to grassroots organizations working on the issue. The reproductive rights discourse is common to most global bodies working on human rights and gender. The basic framework of the discourse is drawn from a combination of elements from liberal, socialist and radical feminism. The rights include reproductive health as a component of overall health, throughout the life cycle, for both men and women; reproductive decision making, including voluntary choice in marriage, family formation and determination of the number, timing and spacing of one’s children and the right to have access to the information and means needed to exercise voluntary choice; equality and equity for men and women to enable individuals to make free and informed choices in all spheres of life, free from discrimination based on gender; and sexual and reproductive security, including freedom from sexual violence and coercion, and the right to privacy.10 The engagement here is with women’s rights and not with child rights or a pro-life approach. The other common strategy of rights-based global and local bodies is to follow a life cycle approach addressing issues of gender violence and discrimination through laws and entitlements and capacity building. This approach is also derived from multiple feminist perspectives. Liberal feminist belief is that rights, entitlements and political participation would entail gender justice. Radical feminist perspective relies on the idea of patriarchy and remains doubtful of the patriarchal state. Marxist feminism is a

Abortion and reproductive rights 203 critique of capitalism. Socialist feminist perspective is underpinned by the complex relationship between relations of production and reproduction. Post-modern feminist perspective focuses on diversity and difference. It also keeps in mind an intersectionality approach, i.e., the considerations of the class, caste, gender and age interconnections. A single feminist perspective is limited in terms of its vision to engage with the issue at hand. Formal guarantee of rights is available within the Indian constitution. However, it is in the accessing of these rights that problems emerge. So liberal feminism fails to explain why women have not been able to achieve equality irrespective of rights and entitlements formally guaranteed to women and girls. The ‘patriarchal state’ engages in making women-friendly laws, thereby offering a challenge to the radical feminist understanding of the state. While intersectionality and heterogeneity are important issues to be considered as posed by postmodern feminism, there remains a need to examine the relevance of ‘strategic essentialism’. According to Spivak it refers to ‘a position that accepts that organizing for political purposes necessarily entails uniting under a single banner and thereby some form of exclusion, but that this is a provisional necessity and not a categorical matter’ (Bowden and Mummery 2009: 118). Jill Steans discusses the notion of strategic essentialism as developed by Spivak in the context of feminist strategies to bring about gender equality. According to Steans, while the diversities between women in terms of class, race and other categories need to inform feminism, it is also important to recognize the commonalities which exist between women. The common experience of gender discrimination and violence for women irrespective of their differences needs to be privileged at certain moments in order to be able to provide meaningful context for developing useful measures for change (Steans 2014). Nussbaum’s capabilities approach is also one which straddles different feminist perspectives. The capabilities approach, of which she is the most influential proponent, is a critique of the rights discourse. However, Nussbaum herself does believe in strict binaries. According to her the idea of capabilities is a complex one. It requires the fostering of internal capability through education, healthcare and supportive relationships as well as ascertaining that her efforts are not thwarted by unequal legal, financial or physical obstacles. It requires looking at how laws, movements, groups and social institutions enable women (Nussbaum 2003: 17). So in her own words, ‘A capabilities approach is closely linked to a rightsbased approach and can be understood as one way of further specifying a rights-based approach’ (Nussbaum 2003: 18). Susan Okin arguments are an intermeshing of liberal, radical and socialist feminist principles, although she would be categorized as a liberal feminist (Kymlicka 2002). Nancy Fraser believes that postmodern feminists need to

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go beyond Foucault’s analysis of power, by hanging on to radical feminism’s sense of moral outrage and modifying this with recognition of the diversity of women’s condition of life (Kantola 2006: 16). Ackerly talks about ‘curbcut feminism’. She defines it as ‘a destabilizing epistemological perspective, familiar to feminists, that requires the theorist to be especially attentive to oppression and to the possibility of exclusion, exploitation, powerlessness, value imperialism, marginalization, invisibility, violence, ignorance, silencing, domination and hegemony’ (Ackerly 2008: 35). The feminist discourse in India which is largely a combination of liberal and socialist feminism has also raised similar critiques of the state discourse on sex-selective abortion. The women’s movements in India have played a very significant role in critically laying down the basic parameters of discussion on the issue of sex-selective abortion. By emphasizing the need to make a distinction between the law on abortion (MTP Act 1971) and sex determination (PCPNDT Act 1994), it has circumscribed the issue around gender discrimination and violence. The right to safe, accessible abortion has remained a concern. It has questioned the market, coercive population policies as well as the state. It remains sceptical about the state in terms of its ability to be wholly gender sensitive in its structures and institutions but works ‘at bringing the state back in’ to deliver its promises to women. Global bodies and institutions like UNFPA and UN for Women are alert to the dynamics of local feminist discourses. They engage in consultations, workshops and supporting direct advocacy and research interventions in the field. They also lobby with policymakers to strategize change. The syncretic feminist perspective is evident in the UNFPA’s approach of emphasizing the three As. The three As of tackling daughter aversion as purposed by them include: •

•

•

Assets: Assets with girls/women, earning income, owning and inheriting property and ownership of land are essential for tackling daughter aversion. These are also protective barriers against violence. To promote these aspects it is required to have policies that improve financial standing of women through employment and tax rebates. Autonomy of women and girls: Autonomy of women and girls to be enhanced through emphasizing on ability, power, providing choices, ensuring physical safety and mobility by making laws work for women and to improve safe public spaces, transport, etc. Ageing to be addressed: Access to social protection for women and men which sees to it that children cannot be the only source of support. The idea is that policy response to ensure social care should be a must. (Brahme 2012)

Abortion and reproductive rights 205 The global perspective here is alert to the rights and bodily integrity of women. The critique of the inflexibility, unimaginativeness and anti-women elements of the CCTs were brought out by a UNFPA study (Sekher 2012), and so also were the anti-women, anti-Dalit elements of coercive population policies like the two-child norm. Interestingly, the two-child norm and other coercive population policies have been critiqued by feminist scholars and activists also. The partnership between these global bodies and the feminist researchers and activists is very strong. For example, a recent publication of the UNFPA which has discussed in detail all laws favouring son preference in India is written by a leading legal feminist of India who is a member of the self-funded All Indian Democratic Women’s Association (AIDWA) (Singh 2013). Such synergies are common and reflect the openness of the global discourses to the learning from the field. Alternative discourses which exist in non-funded movements and activism in the field are also based on syncretic feminist perspectives. They are nuanced with their in-depth analysis of class and caste. Saheli in Delhi is a non-funded women’s group.11 Its research and activism on sex-selective abortion is refined and sophisticated in offering the distinction between prolife and pro-choice arguments and the critique of the market which offers sex determination. The Centre for Advocacy and Research (CFAR) is not a feminist organization, nor does it profess to be one. It started as a media advocacy centre. The CFAR is a registered public-interest research and advocacy group committed to interventions on gender and development issues with a focus on HIV/AIDS, education, women’s health, sustainable development, child rights and elimination of violence against women and children. The focus of CFAR has been monitoring media and developing the expertise to use this knowledge for strategic advocacy through and with the media. Women’s active engagement in tribal movements in Odisha to protect their land and the complex issues that they have raised about their lives are also important for the global and state-level discourses to engage with. The women’s movement in India has actively associated itself with the campaign to end sex-selective abortion. In essays on the women’s movements in India the issue of sex-selective abortion is contained within the discussion on the autonomous women’s movement in India and mostly within the understanding of violence against women (Agnihotri and Mazumdar 1995). Within the women’s movements, however, there has been some unease working on the issue. The divide reveals that even within the movements there have been debates. Some feminist groups have refused to work on the issue, citing the persistence of an overlap over abortion leading to the crackdown on abortion services and the unavailability of safe, affordable and legal abortion for women. Others have paid special attention to it and sustained their efforts to maintain a strict distinction between safe,

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legal abortion services and the practice of sex determination leading to sexselective abortion to the detriment of girls and women. The overall Indian scenario did reveal that the women’s movement along with feminist academia are engaged in discussions, debates and seminars on the issue, but in terms of radical commitment of the movements to guarantee widespread change on the issue, a lot must be done. The challenges before the women’s movements on the issue have been manifold. Firstly, there is a divide between groups on the issue as mentioned earlier. Secondly, the proliferation, the accessibility, affordability and availability of new reproductive technologies have made it difficult for the movement to control it. It requires extensive efforts, an open and dynamic engagement with the state as well as the market in order to curb it. Even some efforts which exist may be in need of supplementary support by a more concerted civil society, media and state action. The women’s movement’s discourse has by and large invoked a limited syncretic feminist perspective which has emphasized gender equality focusing on rights, capabilities, empowerment and political activism. The challenges before the movements have made it difficult for this perspective to be broadened and strengthened and to percolate down to all. Thirdly, the syncretic ideas of feminism within the women’s movements also need to be broadened and strengthened. There are exclusions here. Within the alternative discourses on the issue, which include that of the women’s movements, the UN bodies and the civil society initiatives, some have become hegemonic while some have been excluded from being linked with global discourses. The syncretic feminist perspective needs to be derived from all positions here which look at issues of marginalization and oppression specifically for women and girls and beyond them. Issues of tribal communities losing land to corporate giants, of environmental degradation, of working-class men losing employment, of farmers committing suicide because of agrarian crises are to be taken within its fold. What Ackerly succinctly puts forth for the ‘curb-cut feminism’ can be used to highlight the syncretic feminist perspective too. She says, In political theory jargon, feminist curb cutting is a destabilizing epistemological device set out to enact, not just announce contestability. In plain English, it reminds us of our fallibility and encourages our humility; however, it does not allow us to enact contestability through self-reflection alone. It requires that we enact our theory in the real world, proving (in both senses of the word) its emancipatory potential. (Ackerly 2008: 157) Thus, the syncretic feminist perspective brings in the two dimensions of inclusion and reconceptualization here. Inclusion of women and girls within

Abortion and reproductive rights 207 programmes and their access to political, economic and social rights are derived from the principles of liberal feminism. The idea of reconceptualization is derived from radical and post-modern feminism. While the liberal feminist perspective would emphasize formal equality and political participation, the radical feminism’s main concern here would help to question the power structures at play whether within the state agencies or other institutions and structures. Postmodern feminism cautions about treating women as a homogeneous category, and the intersectionality approach would be to delve into the class, caste, community, race and ethnicity and age dimensions. The implications of this theoretical framework in this context are that countering gender-discriminatory programmes in India demands much more than just cash transfers and monitoring women’s pregnancies. They require addressing many challenges like implementing gender-sensitive laws, building women-friendly educational institutions, and providing quality education which counters gender stereotypes and creates a truly egalitarian ethos. It should also include leveraging markets for the poor and marginalized women, along with skill development and vibrant collectives with ideas based on participation and self-sustainability.12

Way forward After critically assessing the significance of the state in addressing gender discrimination, the relevant question to be asked here would be whether the state should at all be invoked. As stated earlier, the syncretic feminist perspective believes in the centrality of the role of the state. Due to its character and location, the state can offer a common ground for all stakeholders on the issue to get involved, engaged, interact and intersect on the issue. The significance of a syncretic feminist perspective in order to engage with gender discrimination therefore can work best with the state as its primary actor. In an examination of social protection schemes rolled out by the state in India, Dreze and Goyal (2003) say that the answer did not lie in abandoning schemes but in improving the quality, ‘to go forwards rather than backwards’. Similarly, Kabeer believes that it is important to realize three things about social protection schemes and other forms of intervention which are rolled out by the state: •

•

Social protection schemes need to accommodate a more pro-active role of the state while understanding that the state may not always be a benevolent representative of public good. The state can also be a site for struggles over the interpretation of needs and the allocation of resources.

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Bijayalaxmi Nanda Building the capacity of the marginalized and excluded groups to participate in these struggles is indispensable to the promotion of more inclusive systems of social protection and to the achievement of gender equality and justice (Kabeer 2010).

Towards a conclusion Does this mean that the strategies emerging from the syncretic feminist perspective will be the magic bullets to counter sex-selective abortion? By withdrawing coercive population control elements from the CCTs, will girls get better life chances? By penalizing doctors for their unethical and illegal medical practice of sex determination, will families be sensitive to the value of daughters? These are questions for further research and probing. The aim here is to point out the political significance of the feminist perspectives to create space for critical discourses regarding women as persons with rights, entitlements and capabilities which are being denied to them due to material, structural and cultural impediments. It is also to look beyond rights offered by the state, at heterogeneous structures and institutions like the market, civil society initiatives, vibrant movements and the relevance of these plural bodies in their extension of a critical space to women and girls. This chapter has also emphasized the need to focus on the state and its contexts, structures and discourses which are amenable to change due to both global and local reflections. When informed by the syncretic feminist perspective with an intersectionality approach, this change can be towards achieving gender justice by providing women and girls an enabling environment to be persons of their own free will and choice. An attempt has been made to complicate our understanding of the state and the shifting discourses, debates and dilemmas in the context of sexselective abortion in India. It has desisted from offering any simplistic, teleological explanation for sex-selective abortion as gender discrimination in India. The syncretic feminist perspective has the potential to expose the limits of state institutions and structures, to make evident the dominant discourses which work against women and girls and to reveal the importance of comparative analysis between state, regions, civil society initiatives and movements. It sensitizes state agencies to the importance of the context. The aim of the perspective is to point out the need of the coexistence of multiple discourses and practices here. However, the focus on the multiplicity of state institutions, structures and bodies is to also challenge at all levels the conceptualization of gender discrimination by them and the interconnections at the level of their policymaking and policy-implementation framework. A systematic combination of syncretic feminist perspectives within state discourses and their

Abortion and reproductive rights 209 actors and institutions will be able to exert an influence across the terrain of policymaking and policy interconnections. It will also be able to influence the market and other players in the field. Feminists themselves will become aware of their own limited stance if isolated from each other. The importance or articulating alternative discourses which challenge the state on the issue and to effectively and strategically partner is also essential here. Challenging the norms and understanding of sex-selective abortion as gender discrimination by the state will require the feminists to look inwards at their active engagement on the issue and beyond the state. The need is to also get interlinked with movements, both global and local, which may not be openly articulating a rights talk but may have effectively challenged discrimination and marginalization in their own context. The state should recognize the significance of such voices by making itself sufficiently fragmented and neutral enough to allow various points of access. The inculcation of a syncretic feminist perspective with an intersectionality approach by the state as well as the feminists, activists, civil society bodies and other influential actors will make it possible to explicitly address gender discrimination and expand reproductive rights and create a notion of equality and justice that would be helpful for studying all aspects of oppression and marginalization.

Notes 1 Janani Suraksha Yojana (JSY) is a safe-motherhood intervention under the National Rural Health Mission (NRHM). It is being implemented with the objective of reducing maternal and neonatal mortality by promoting institutional delivery among poor pregnant women. The scheme is under implementation in all states and Union Territories, with a special focus on states performing low on maternal and neonatal mortality indicators. As a conditional cash-transfer scheme a fixed amount is paid to women for these institutional deliveries. For more details see http://nhm.gov.in/ nrhm-components/rmnch-a/maternal-health/janani-suraksha-yojana/ background.html (accessed on 24 June 2017). 2 Eight states in the United States have introduced laws against sex-selective abortion in 2012 to ban the procedure, and three states – Arizona, Pennsylvania and Oklahoma – have banned sex-selective abortions. A similar law in Illinois was scrapped by state courts. See O’Keefe (2012). 3 As defined by the Oxford English Dictionary https://en.oxforddictionaries. com/definition/designer_baby (accessed on 24 June 2017). 4 Information, Education and Communication (IEC) materials of government and NGOs in the public domain are in general insensitive to such gender concerns. Also see Naqvi (2006). 5 Personal communication with Mitu Khurana and observation of her legal battle in the Tis Hazari court and high court during the research period. 6 On 15 December 2013, a young paramedic student was brutally raped in a moving bus by five men which included the bus driver, conductor and

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helper. She later succumbed to her injuries in hospital. The brutality involved in this rape case led to a massive public outburst in Delhi which later spread to different parts of India. Popularly known as the Nirbhaya Case, it led the Central Government to constitute a committee under the retired Chief Justice of India, Justice J. S. Verma. The Verma Committee Report gave wide-ranging suggestions for improvement of safety of women along with recommendations to strengthen anti-rape laws. The report led to the passage of the Criminal Law (Amendment) Act, 2013. Also see Kalantry (2013), pointing out that the proponents of sex-selective abortion bans in the United States present information about son preference in India in a narrow and misleading lens to push for the bans in the United States. The Akal Takht which is the main religious clergy of the Sikh gurudwara and has a huge influence upon the largely Sikh population in Punjab was called by the government to support them on the issue. The Akal Takht issued a decree (Hukam Nama) called the ‘kudi mar’ (daughter murderer) decree, which exhorted the Sikh families to stop murdering their daughters, as it was immoral, unethical, evil and hence a sin. The decree declared that any Sikh found practicing sex-selective abortion would be excommunicated. The first religious body meeting on the issue was facilitated by the state (the Ministry of Health and Family Welfare) and UNICEF in 2002. The religious leaders who attended the meeting spoke about the duties of motherhood, glorifying the role and the emphasis on the right to life of the foetus in the womb, and the word ‘bhrunhatya’ (foeticide) replaced the word ‘female foeticide’ in their speeches and resulted in an overlap over the right to abortion which is legally available under the MTP (Medical Termination of Pregnancy) Act 1971. Reproductive Rights as defined by UNFPA www.unfpa.org/rights/rights. htm (accessed on 24 June 2017). Saheli was set up in 1981 in New Delhi, India, primarily as a crisis intervention centre. It is an integral part of the autonomous women’s movement in India. Writings in their newsletters on the issue include ‘More Teeth to the PNDT Act – Favourable Changes on the Anvil, The Business of Sex Selection – The Ultrasonography Boom’ (2006), Sex Selection-Trying to Tame The Tiger (2003), Law on Sex-Determination-Amendments and Developments (2002), Law Against Sex-determination – Souvenir (1995), Sex Determination and child Birth-Critique of The New Bill (1995), Campaign Against Sex Determination and Selection-Report Of National Protest Day (1998). In South Korea a strategy of combining legal enforcements with property rights and other forms of social protection for women and girls have led to a remarkable improvement in the sex ratio at birth. For more details see Chung and Das Gupta (2007).

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Bodily rights and agency Looking at the rights discourse of women in prostitution Nupur Ray

Traumatic events violate the autonomy of the person at the level of basic bodily integrity. The body is invaded, injured, defiled. Control over bodily functions is often lost; in the folklore of combat and rape, this loss of control is often recounted as the most humiliating aspect of the trauma. Furthermore, at the moment of trauma, almost by definition, the individual’s point of view counts for nothing. In rape, for example, the purpose of the attack is precisely to demonstrate contempt for the victim’s autonomy and dignity. (Herman 1992)

Violence against women has been an important concern and focus of women’s movements worldwide evident in the form of theoretical analysis, demonstrations, campaigns and struggles for legal reforms. There is ample literature in feminist writings especially within radical and psychoanalytical strands looking at physical, social, cultural, emotional, criminal and grouppsychological dimensions of violation of women’s bodies. Recently, some heinous and brutal cases of physical violence like rape, honour killing, acid attacks and girl-child abuse came under the media glare leading to protests and demonstrations not just by women’s and civil society groups but ordinary citizens as well.1 Violence against women has been on a rise in the past few years despite taking into account the poor reporting rate in India. The distribution pattern of crimes against women has not changed much in the last few years, but between 2001 and 2011 the overall number of incidents of crime against women has risen steadily and was 59 percent higher than in 2001.2 Ironically, along with this increasing trend of graver violation of women’s bodies, we have a parallel phenomenon of objectification of bodies driven by the current sexist-consumerist hypermarket created by an ‘unholy’ alliance of patriarchy and capitalism. As aptly put, the incorporation of what a

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feminist philosopher Sandra Lee Bartky calls the ‘fashion beauty complex’ (1990: 39) in today’s fast-growing consumerist societies has led to the creation of such an imaginary ‘female body’ that is expected to meet unrealistic standards of beauty. The projection of ‘bodies’ as a tool and a market strategy to ‘attract’ customers in advertisements suggest an unwarranted objectification of women’s bodies where market and technology are far more intervening and controlling bodies of women in the name of demand and choice of work for women. Between these two contradictory trends of violation and objectification of ‘female body’, this chapter delves into the debates and dilemmas on the bodily rights of women that includes sexual and reproductive rights. Where do women stand here as owners of their bodies constantly subject to the whims of patriarchy and market? How to make sense of their basic rights to bodily integrity and protection from violence? How to make sense of women’s rights to equality, justice and freedom as citizens of the state? What is the scope of ‘rights’ for women amidst this complex picture of blurred images of ‘body’ that act as sites of oppression, choice and freedom.

Rights discourse: locating the debate Ronald Dworkin gave a profoundly thought-provoking justification of rights as follows: ‘anyone who professes to take rights seriously, one must accept one or both of two important ideas’. The first of these is the ‘vague but powerful idea of human dignity’. Drawing on the Kantian claim that people are ends in themselves and not means to the ends of others, Dworkin claims that the idea of human dignity ‘supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of human community, and holds that such treatment is profoundly unjust’ (Dworkin 1977). The second idea that may underpin rights is the idea of political equality. ‘This supposes that the weaker sections of a political community are entitled to the same concern and respect . . . as the more powerful members’ (198–9). These ideas of basic human dignity and political equality embody the further idea of a fundamental moral entitlement to equal concern and respect due to each and every person ‘not by virtue of birth or characteristic or merit or excellence but simply as human beings’. These are powerful ideas to pursue equality and justice in this world marred with all forms of inequalities in social, economic, political and cultural spheres of life. These words also suggest a great potential for ‘rights’, as treating each individual with ‘equal concern and respect’ and ‘equal moral independence’ has an underlying idea of treating them as natural beneficiaries of ‘rights’. This holds a strong justification of rights in political philosophy and legal theory.

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An attempt has been made to invoke these concerns and questions around women’s rights in this chapter. Dworkin embarked on an ambitious3 philosophical project of creating gender equality by making his theory of ‘rights as trumps’ inclusive of women, unlike other liberal thinkers. However, in spite of having proposed a landmark theory in liberal egalitarianism, his vision for gender equality remains obscured and rather incomplete. This limitation lies at the centre of the problem and analysis in this chapter. Rights empower people or, to sound more convincing, rights have a great potential to empower people. By ‘rights’ I mean legally enforceable rights equally guaranteed to all citizens by the constitution of a country. The ideal values like justice, equality, freedom, democracy, peace and human development that constitute the vision of political philosophers and policymakers have found their best manifestation and implementation through embodiment in ‘rights’. ‘Rights’ are like shields to protect and secure these ideals for an individual or a group or a community. In other words, ‘rights’ could be considered ‘means’ of obtaining the formal recognition and implementation of these ideal principles. The history of women’s rights engages a wide array of rights from the struggle for civil and political liberties to social rights of education and health benefits and from the right to political participation to rights concerning the private domain primarily concerning marriage, divorce and inheritance. This chapter is making an attempt to delve broadly into the sexual and reproductive rights of women, or what we may also call ‘bodily’ rights of women. However, the main purpose of this chapter is to unfold the complexities and dilemmas when rights interact with ‘bodies of women’ and then to grasp the sexual and reproductive concerns in light of this tension. I am hoping that with this chapter, I shall be able to present a critical review of the rights discourse from a gender perspective, especially drawing out my concerns around body politics and rights discourse. The ability to perceive and exercise rights entails two dimensions: First, a right is enforceable and conferred by the state and thus reckons a presumption of a positive role of state in making rights accessible to women in the form of constitutional guarantees and other policy programmes. Martha Nussbaum has argued that governments need to move beyond negative phrasing concerning state action to a more pro-active affirmative role by providing avenues for realizing basic freedoms and capabilities and for all citizens (Nussbaum 2008). The second dimension is internal, and that concerns the ‘selfhood’ of a woman, which makes sense of these capabilities in her life. This ‘self’ in a state of potential action has been called ‘agency’, also identified as autonomy, self-determination and subjectivity in other discourses. ‘Agency’ is also an important aspect of the capabilities approach both in Amartya Sen’s and

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Nussbaum’s work. Sen defines agency as the ability to set and pursue one’s own goals and interests, of which the pursuit of one’s own well-being may be only one (Sen 2001). In other words, how a woman acts or refuses to act based on her beliefs, intentions and goals for choosing one action over another is her agency. What is intrinsically attached to self or rather is part of ‘self’ is the ‘body’ of a woman, and when we begin to unfold the complexities of body politics and gender in the context of sexual and reproductive capacities of women, we have seen the tough questions that have emerged. The control of a woman’s body, especially her sexual and reproductive capacities, as argued by many feminists, constitutes the basis of gender inequality. This form of power control – as Kate Millett calls it, ‘sexual politics’ – lies at the heart of the entire social, political, cultural and ideological construct. Therefore the central issue in addressing women’s social subordination is the reality that the self is actualized through projection of a ‘corporeal schema’ in the form of her ‘body’ onto the world, which ultimately shapes and constructs her own ideas around body, desires and sexuality. The ways in which women’s bodies are constituted in relation to men thereby define their idea of ‘ownership’ and to great extent their ‘selfhood’, which to my understanding is at the centre of how women make sense of rights and exercise their agency. This chapter is a focussed analysis of a highly debated issue in feminist theory – prostitution or sex work. The issue touches upon the sexual and reproductive aspects of a female ‘body’, invokes dilemmas and debates around ‘bodily’ rights of women and attempts to break the boundaries of patriarchal paraphernalia within which a woman’s body is defined and confined. Prostitution carries an unconventional practice of the expression of a woman’s sexuality outside the confines of marriage, where her body and sexuality become objects of financial transaction. Here ‘body’ becomes the source of ‘impurity’. The chapter unfolds the debates and dilemmas in rights discourse for women in prostitution and through this exercise examines the scope and limitations of rights discourse for women in claiming their sexual and reproductive rights. The next section is a broad overview of the history and recognition of sexual and reproductive rights of women in the human rights discourse.

Women and bodily autonomy in the human rights discourse: debates and dilemmas The concept of sexual and reproductive rights and freedoms as evolved and recognized within the human rights discourse can be distinguished as three ideas: (a) the freedom to decide how many children to have and whether

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(when) to have them, (b) the right to have the information and means to regulate one’s fertility and (c) the right to ‘control one’s body’. The first two concepts have been formalized in various UN declarations since the mid1960s, while the third issue has emerged largely from the feminist discourse. I shall elaborate briefly on these three rights as follows: In the most UN documents, the idea of Reproductive freedom refers to the freedom of all persons of ‘full age’ to marry or not, to choose one’s spouse, to have children or not, and to decide when to have them and how many to have. The concept has gone through an evolutionary process becoming more centred on women’s preferences. The right to decide freely . . . the number and spacing of children was vested initially in ‘each individual family’ (General Assembly resolution 1966), and then in ‘parents’, then ‘couples’ and finally in ‘couples and individuals’ (1974/1984 world population conferences) (Van da Kaa 1988: 183). This gender inequality is compounded with other forms of discrimination on the basis of class, ethnicity, religion or region that creates multiple forms of oppression for women and limit their freedom of choice in reproductive matters. The freedom to choose is also contingent upon the state’s fulfilment of social and economic rights that could make real choices possible for women. As famously put by Rosalind Petchesky, ‘The critical issue for feminists is not so much the content of women’s choices or even the right to choose as it is the conditions under which choices are made. The right to choose means little when women are powerless’ (Petchesky 1984: 11). The second key element in sexual and reproductive freedoms is a woman’s right to regulate her own fertility through an informed choice based on adequate family planning information and services by the state. From its tentative origins in the UN documents as a ‘right to adequate education and information’ permitting partners to regulate their fertility, the concept was broadened to include the right to the ‘information, education and means to do so’ (Van de Kaa 1988). This is again highly problematic if we look at the way in which women have control over their fertility in varying degrees across different countries, communities and cultures. The reasons are numerous, varying from lack of information around contraception methods, access to state assisted abortion facilities or counselling centres to religious prohibitions on contraception and abortion and women’s lack of decision-making capacities. The third element of reproductive rights and freedoms, which is more comprehensive, problematic and yet neglected in some specific ways, is the right to control over one’s body. Articulated

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largely within a feminist discourse, a woman’s control over her own body implies much more than controlling one’s fertility; it includes being able to make positive informed decisions about various aspects of her body during various stages of her life including general health concerns, nutritional needs, childbearing, use of contraception, abortion or even deciding to not have a child. As we begin to look at this third element, ‘control over one’s body’, first emerging apart from feminist connotation, it can be found in liberal, neo-Marxist and radical philosophical traditions. Emerging in the seventeenth century, liberal thought in England and the idea of ‘property in one’s own person’ resonated with a ‘natural right’ to property in goods. It included a right not be detained without due cause, not to be alienated from one’s labour in slavery or other forms of economic bondage and not to be bound in marriage against one’s will (Petchesky 1984: 3). Marxist and socialist thought also considered the alienation of labour a violation of individual integrity and workers’ rights. More radical interpretations of the right to control one’s body have celebrated the ideal of expressing one’s sexuality as an integral aspect of personal development and social development (Petchesky 1984: 4). Following is a discussion on how the ‘right to control one’s body’ has been interpreted, framed and debated within the feminist theory. In feminist theory, the meaning of having control over one’s body has historically evolved through various phases having different connotations. Yet to put it more simply, the right to control one’s own body could mean two things. First, it would mean a woman’s right not to be alienated from her sexual and reproductive capacities, e.g. through forced sex or marriage, prostitution, female circumcision, denial of access to birth control, sterilization without informed consent or prohibitions on homosexuality. Second, it is her right to the integrity of her physical person, e.g. freedom from sexual violence, from false imprisonment in the home, from unsafe contraceptive methods, from unwanted pregnancies, or coerced childbearing and from unwanted medical interventions (Dixon-Mueller 1993: 14). Diverse voices within feminism emphasize different aspects like these, while the liberal tradition has argued for standard rights for women like freedom from coercion, sexual violence or abuse, choosing one’s partner. The radical stream has gone for more radical assertions like right to engage in sex work, same-sex preferences and non-compromising abortion rights that directly impinge upon the patriarchal ideology sustaining social and cultural institutions. As argued by feminist scholars and human rights activists alike, all the elements of reproductive rights and freedoms discussed above incorporate the principles of individual liberty and social entitlement within a broader

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human rights framework. The individual liberty aspect consists of the freedom to make alternative sexual and reproductive choices without being coerced by governments, community or family. This should ideally include being free from the indoctrination of patriarchal thought process that begins right from the birth of a child – as Martha Nussbaum (2000) calls it, developing ‘adaptive preferences’ or ‘false consciousness’. However, to suggest a word of caution, it is also argued that individual rights should be guided by a certain sense of social responsibility. The exercise of certain freedoms is also circumscribed by the obligation not to deny or more positively by the obligation to tolerate and support the rights and freedoms of others (Macklin 1989). This is where we enter into the ‘grey areas’ of how much a woman needs to consider and be influenced by her family, community or religious norms in matters pertaining to her reproductive and sexual capacities. Many case studies around the world suggest that these societal/ cultural/family/religious responsibilities cost a woman her basic freedoms related to her body, sexuality and fertility. Amidst the paraphernalia of this social matrix loaded with patriarchal ideology, the question that emerges is what should be the philosophical foundations of rights and the real structure of rights with which to empower a woman to make an informed decision in these matters, or do we need to go beyond the rights discourse? The ‘social entitlements’ elements, on the other hand, consist of the obligation of the state or ‘society’ to ensure that each individual can exercise a full range of social, economic, political or civil rights that could further enrich and support her in making meaningful reproductive choices.

Whose ‘body’ is it anyway?: women’s bodies and the idea of self-ownership While there has been an engaging discussion around the idea of sex-gender politics, masculine control over women’s bodies and female bodies as sites of resistance both in feminist traditions and psychoanalytical traditions, the dilemmas around how body, self and sexual politics interact, intersect and are intricately interwoven in a complex matrix of patriarchal sexual economy that gives a woman a sense of ownership or dis-ownership of her body that in turn determines her agency thereby influencing her decision – making and her exercise of rights especially bodily rights, remains to be an unexplored terrain. Since the 1980s, as the struggle for women’s rights has shifted to sexual and reproductive rights of women looking at issues like sexual freedom, control over fertility, sexual violence, the language of ‘owning’ and ‘controlling’ one’s body by women has gained more prominence in feminist writing (Petchesky 1984).

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‘Over himself, over his own body and mind, the individual is sovereign’; J. S. Mill (1859) broadened the horizons of defining freedom. A question that is obvious is at any point in history, have women been sovereign over their bodies and minds? Or in other words, does a woman own her own body? Does she realize she owns her body and in what ways? These seem like simplistic generic questions but with highly complex answers. I believe that these questions have direct implications on a woman’s exercise of rights that involve her body, sexuality and fertility. Further, it is because of the limitations within the answers that we have not been able to fulfil the vision as envisaged by women’s movements in the area of women’s rights. One of the issues that has been of a particular challenge to feminist thinkers due to its grave implications is a highly essentialized patriarchal understanding of sexuality and desires. This has been famously described as ‘patriarchal sexual politics’ (1970by radical American feminist Kate Millett. Sexual politics is based on basically these assumptions: women and men are naturally attracted to each other (human beings desire ‘the opposite sex’), men naturally possess a stronger sex drive than women (women’ssexuality is more repressed), making coercive sexual activity ‘normal’, sexuality is focussed around penetration and male pleasure (anything else is ‘foreplay’), and ‘real’ sexual stimulation for women is vaginal not clitoral (Millett 1970). These assumptions along with other related ideas have been analysed by feminist thinkers to provide a nuanced gendered comprehension of power, privilege and inequality. This nexus of assumptions around sexual politics that operates within an unhindered market, feeding into the power struggle, can be called a ‘patriarchal sexual economy’. ‘Patriarchal sexual economy’ is based on a fundamental assumption, as argued by Adrienne Rich in her famous essay ‘Compulsory Heterosexuality and Lesbian Existence’ (1984). The title describes a system in which heterosexuality – women being attracted to men and vice versa – is considered a norm or normal and even natural, innate and inevitable to define sexual desire between two adults. Other forms of desire and sexualities are thus deviant and not natural. This is part of the main underlying force that fuels male dominance within patriarchal sexual economy. Rich delves further to argue that if heterosexuality were not considered as ‘normal’ or ‘natural’ form of sexual relations, then the erotic choices and identities of both men and women would have been differently designed. This is particularly important when we look at women in prostitution. Many complex issues and dilemmas have answers in this idea. Thus patriarchal sexual economy privileges heterosexuality. Millet further adds that this is reinforced with another key assumption that there is hierarchical relation between sexes, where men are in a position of privilege and power. This hierarchy has been maintained through various social, cultural and ideological

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forces implicitly and even through sexist laws, institutions and violence in some cases. The persistence in acts of violence against women like rape, sexual harassment and female genital mutilation and a significant rise in the instances and forms of violence lately like date rape, honour killing, acid attack and sex-selective abortion are all ways to keep women subordinated. Further, in matters of sexuality, there is a deep conviction that privileges male activity and pleasure in sex and assumes female pleasure is incidental or will follow. The idea that sexual access and ‘sexual ownership’ (by men of women) are always justifiable one way or the other. Stoltenberg (1990) extends this ownership to not just women’s sexuality but their bodies as well. The second assumption that supports the first is an unhindered market, making and unmaking bodies. Drawing from Foucault’s concept of ‘governance’ of female bodies, it talks about how cultural ideals of body, especially a woman’s body, circulate throughout society in fashion, movies, music, cosmetics and pornography and even prostitution are mediated through an unhindered ‘market’, and with this, these hyper-sexualized artificial body types are affirmed, normalized and internalized by women. As put by Susan Bordo, these female bodies become docile bodies – bodies whose forces and energies are habituated to external regulation, subjection, transformation and ‘improvement’ (Bordo 1997). In light of this, therefore I argue that we need to rebuild/reconstruct philosophical foundations of Dworkin’s theory of rights as trumps, especially when it comes to sexual and reproductive rights of women. The foundations should encompass the idea of self-ownership of body that could support a robust theory of ‘agency’ – an informed, empowered and free agency. It is important to reclaim bodies of women (embodied discursive or interpretive) from the maze of patriarchal sexual economy by giving them a sense of control, responsibility and freedom of choice in their particular life situations.

Prostitution: debates and dilemmas around women’s rights In most of the works that I have come across on prostitution, one of the familiar yet problematic comments has been that prostitution is one of the oldest professions of the world.4 The comment implies two misplaced presumptions: first, is a presumption that prostitution is a single trans-historical, trans-cultural activity that carries the same meaning and has the same genesis, structure and implications for women across time and cultures. The term also suggests its inevitable ‘demand’ in a society like a necessary social evil, indicating the inescapability of containing dominant masculine sexual needs. Second is the presumption that prostitution has been a ‘profession’

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for women, thus putting it in the realm of ‘work’, ignoring the long history of sexual slavery and many exploitative forms like the devdasis tradition in India and/or temple prostitutes in ancient Babylonia. Can we give this practice a status of work when it is intrinsically embedded in sexual dominance and gross exploitation? To put the practice in the current context as prevalent in modern-day societies, prostitution involves the purchase of sexual services from women by men. In other words, it is a financial transaction for sexual services offered by women to men as a commodity.5 This current understanding of the idea in its various forms runs in this work. Further on the terminology, while ‘sex work’/‘sex worker’, terms more often used now, are of recent origin, popularized by the World Bank (Bhave 41), carrying a certain history, ideology and meaning, ‘prostitution’ is an older term for women who have made their sexual labour/services available in the market for economic transaction. I prefer to use the term ‘women in prostitution’ to avoid any suggestive ideology or strand and use an all-encompassing term that accommodates all forms, perspectives and practices within it. Prostitution is a complex issue that signifies an intricate interplay of women’s bodies, men’s desires, commodification of sex and supply-demand forces in the market, leading to sharp dissent within feminist politics. Donna Guy’s comment captures this complexity: Full of apparent contradictions and discrepancies, the history of modern prostitution control offers a dynamic perspective on the private lives of women as well as the public functioning of medicine, patriarchy and the nation state and emphasizes the need to understand how gender and sexuality are interrelated inextricably to race, cultural diversity and economic circumstances. (Guy 1995: 182) This statement presents a compound set of concerns when we begin to unfold the debates/dilemmas around women in prostitution. It invokes and further complicates the age-old issue of the public–private divide in feminism, questions the patriarchal nature of the state, raises questions over the need to delink the sexual and reproductive rights of women and understand their peculiarities separately, delves into the deeper dilemmas of a female body and how it gets implicated when it intersects with gender and sexuality and intervenes in the contemporary trends of sexual economy and further how all these components acquire a different nature and form when we bring them together in prostitution. Perhaps this chapter has a greater challenge, and that is to understand the context of women’s rights amidst

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these intricate concerns in prostitution and further seeking self-ownership and control of bodies by women through a discourse of rights that could act as ‘rights as trumps’ in the hands of women as instruments of freedom and empowerment. Body is central to prostitution: body of a woman as service provider and body of a man as a consumer. ‘Body’ is the primary ‘site’ where the real act takes place, and it is also an ‘instrument’ or a ‘tool’ to perform the act. It is this ‘body’ that becomes a commodity as an object of financial transaction. It has been argued by some feminists that this is not a unique feature, as ‘body’ and its various functionalities/aspects gets commodified in the market in all forms of formal and informal work.6 Martha Nussbaum pushes this point to the extent of comparing women in prostitution to women in the teaching profession, the former putting her physical labour (sexual services) on sale and the latter putting her mental labour (intellectual services) on sale, both being intimate properties of individuals (Nussbaum 2008). This is an interesting observation. I deal with this later in the chapter. My entry point in this discourse is not a moral standpoint of whether prostitution is ethically good or bad or whether ‘sex’ should be sold as a commodity or even whether women should engage in prostitution because it might perturb the moral and social fabric of society. The main objective of this chapter is to do a critical study of a focussed reading of the concept and practice of prostitution in India and to unfold the main debate around prostitution that has its origin in the Indian socialcultural milieu. In this chapter I present a critique of the legal framework within which prostitution in India is defined and operates and therefore the scope and limitations of rights for women in prostitution. Secondly, the chapter also does a critical review of the Indian state’s approach to women in prostitution and what purpose rights serve for them. Do rights act as trumps in the hands of women against sexual violence and oppression? How are women’s bodies, market, agency and rights connected in prostitution discourse in India? Prostitution per se is not illegal in India. The main statute dealing with prostitution is the Immoral Traffic Prevention Act (1986). According to the act, commercial sex and soliciting in a public place are a punishable offences. The act intends to protect women from trafficking, i.e. being forced/coerced into prostitution. It is not socially sanctioned but is tolerated without criminalizing women in it. Thus, the state does not criminalize prostitution or women in prostitution but does criminalize any third party that could facilitate or force flesh trade (Jayashree 2004). The debate on women’s rights and prostitution in India has unravelled various critical aspects of power politics around women’s bodies, their vulnerabilities and their location in the patriarchal sexual economy. The

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arguments in favour of sex workers’ rights and against legalization of prostitution invoke serious questions of sexual violence, reproductive health rights, violation of human rights, trafficking, moral limits of market and dilemmas of choice and agency.

The debate on prostitution in India: feminist responses The debate on prostitution in India has invoked various crucial aspects of women’s lives, their needs and their vulnerabilities in different ways. The arguments in favour of sex workers’ rights and against such recognition involve questions of sexual violence, reproductive health rights, violation of human rights, human trafficking and justification of sex commodification, legal harassment, right to bodily integrity, child abuse and freedom of choice for women, confronting each other. Following is a critical analysis of three broad perspectives that have emanated from the Indian context viewing/defining women’s bodies in prostitution. First, is the conventional whore–virgin divide, where for a long time there was an uncomfortable silence on speaking on women in prostitution. This discomfort emerged from a general negligence of the Indian women’s movement around notions of morality, monogamy and socially coercive heterosexuality. Lesbian rights collectives in India have questioned this silence as a sign of the homophobia of the movement (Menon 2012. Further, this neglect could also be attributed to deliberately avoiding non-marital sexual relations; the Indian women’s movement has been complicit in idealizing relationships between heterosexual, monogamous couples, within a marriage or a long-term relationship. Prostitution was, perhaps, so alien to the experiences of middle-class feminists that it was not addressed in such terms at all. Thus in the 1980s when the women’s movement was emerging as an important political force, the issue of prostitution remained in the background (Gangoli 2008). The second approach that emerged resonates with a radical perspective of seeing prostitution through the lens of oppression, violence and victimhood. Sanlaap, a Kolkata-based NGO following a study of child prostitution in Kolkata has been very prominent in opposing any step to legalize prostitution by questioning its status as ‘work’. They assert, ‘Purchase and sale of girls, through threats, trickery, deceit and false promises are ways through which girls and young women are trafficked and forced into prostitution. Do we call it work?’ (Sanlaap 1998). There are risks around health and physical violence along with the threat of being controlled by other agents in the business, leading to loss of autonomy and freedom. Since most women do not enter prostitution by choice, the bargains made with

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consumers are not real bargains but compulsions. They are arguing that women in prostitution are living in a state of severe vulnerability on all sides, and giving them rights as sex workers would only reinforce and institutionalize these vulnerabilities for them. The feminist perspective of victimizing women in prostitution is echoed in and influences public policy. The existing laws on prostitution in India aim to ‘prevent’ prostitution in the name of protecting the moral fabric of society based in family and community. ‘The exploitation of women and girls for the purposes is an obnoxious feature of crime against them . . . though prostitution has persisted since time immemorial, it has all through been considered an evil that wrecks the foundations of the family and the community, as basic units of human society . . .’ (debates 1998). Feminist analysis that prostitution is violence and that women in prostitution are victims also runs the risk of neglecting ‘family’ as an equally oppressive site of injustice. A third perspective that developed which has been taken up by many NGOs and activists in India is about taking prostitution as choice and identity. The Durbar Mahila Samanvaya Samiti Committee (DMSC) was formed in July 1995, a forum of nearly 40,000 sex workers in the state of West Bengal. It aims to crate solidarity and collective strength among women involved in prostitution from the red-light areas in Calcutta. It emerged out of an STD/HIV intervention in 1992 by the All India Institute of Public Health and Hygiene in collaboration with local NGOs. The study brought in the idea that the basic objective of preventing STDs among sex workers and that there is a need to focus on women in the profession in a broad manner to see them as human beings with a ‘range of emotional and material needs, living within a coercive and specific social, political and ideological context [. . .] .’ (DMSC 1997). Objecting to the idea that stereotyping women as ‘fallen’ and thus being a threat to society or as ‘victims’ in need of rescue and rehabilitation, DMSC emphasized the following points: •

•

•

Sex work and trafficking are not synonymous. Whereas trafficking is coercive and exploitative, sex work can be a conscious choice of women as a means of livelihood. Sex work should be decriminalized so that women in the profession can demand better working conditions like women in other professions. The ambiguity of Indian laws denies sex workers their legal rights, making them vulnerable to exploitation of all kinds and pushing them to the margins of society. In order to improve the lives of women in sex work, women in sex work need to be organized and empowered to claim their basic human

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DMSC believes that women enter prostitution for social and economic reasons . . . it is ultimately a survival strategy, just like male migration and entry into low-income labor industries. However, coercion could happen in all other areas as well, especially to poor people, as there are very few choices available to them, whether they choose marriage, domestic labour, construction or sex work. Therefore what is required is an adequate recognition of their work in terms of providing them social security, access to healthcare and working conditions reforms that could make their life in these work conditions easier.7 The reason is largely to recognize their vulnerability as a group and protect them from sexual violence, reproductive health risks, lack of access to resources, social discrimination and other concerns mentioned earlier. Based on these principles, DMSC has demanded two things: first is to change the legal status of sex work in India and second is to protect the sex workers’ community from ill health, violence and exploitation through effective community mobilization with joint partnership of government organizations and NGOs (DMSC 1997). The social profile of women in prostitution shows that most come from poor families and the reason for entering this involves a complex interplay of acute poverty, gendered division of labour, exploitation, trafficking and history of abuse and sexual violence. A survey done in Kerala reveals that more than 50 sex workers in Kerala had been married, experienced domestic violence and were deserted and sold by their own husbands, on whom they were economically dependent. Due to lack of any alternative resources and sexual harassment wherever they tried to work, they were compelled to enter this (Jayashree 2004). Another study reveals that most sex workers enter the trade as either minors who have no choice or are forced into it in human trafficking and thereby become vulnerable to sexual violence and economic exploitation ((DMSC 1997). The act is intended to protect women from being trafficked, coerced or forced to participate in selling sex. However, the statue is often misinterpreted and the sex workers are targeted, harassed and even molested by the police and local criminals, which always puts them at a very high risk of sexual abuse and violence. A revealing study by Jean D’Cunha suggests that their fundamental right to detention is violated due to misuse of the act by police. In between 1980 and 1987, more than 9,000 sex workers were arrested in Mumbai alone ((D Cunha 1992). It goes without saying the kind of treatment they would have got. Due to lack of awareness and proper medical care, they are most vulnerable to sexually transmitted

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diseases and other serious mental and physical illnesses. More than 50 percent of sex workers are HIV infected according to Sentinel Surveillance data in Mumbai (D Cunha 1992) much higher than the rest of population. Other forms of vulnerability include discrimination and humiliation in areas of healthcare, earning in their services and access to financial credit. With little access to banks and other financial institutions due to lack of education, information, resources and opportunities along with social stigma and humiliation they face, one can assume how difficult it is for them lead a normal life. Keeping in mind these broader trends, the field study was conducted in a prominent red-light area GB Road in Delhi.

The field study As part of my field work, it was imperative that I should meet and interact with some of the women involved in prostitution. This work is primarily concerned with women in brothel-based prostitution since it operates within a structure that includes the nuances, other stakeholders, the processes, the clientele and the ideological-economic fabric that sustains it. Going through many reports and studies on prostitution, one could understand that it was not an easy task to get an honest response from women in prostitution due to lack of trust, a social stigma associated with what they do and the derogatory way they are treated by people in general. In order to overcome this limitation, it was decided to approach an NGO or a civil society group that was already working with them to pursue my case study. In Delhi, GB Road is the place where brothel-based prostitution is mostly found. It is one of the oldest places in old Delhi and quite popular by its name itself. So now the location itself carries a stigma, and therefore, even a person who belongs to GB Road for other reasons avoids taking its name. Kat-Katha is an NGO located in the heart of GB Road that works to provide alternate livelihood options to women in prostitution. As put by them, ‘They enable and empower women working in brothels to fulfil aspirations that give them new avenues of sustenance, personal freedom, self-reliance and acceptance of their work and themselves’.8 This includes holding training programmes in tailoring, handicrafts, basket-making and a few activities more that could provide them with some other alternatives to sustain themselves if they wish to move out of prostitution. Further, the NGO also works with the children of these women, gives them elementary education, reads them stories and takes care of their hygiene and general health with an intention to save them from getting influenced in a negative way. This has helped immensely in building the bonds between the volunteers at the NGO and these women.

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As one goes out to a place for fieldwork that is morally loaded, full of baggage and even misconstrued, it is heartening to see a group of young people working so closely with them with no fear or prejudices. The director of Kat-Katha, Geetanjali Babbar, along with others like Suman, share their stories with me of their friendship, how they feel safe in that famously ‘unsafe’ place as they are protected by their ‘didis’ (sisters) to the extent of even sleeping in their rooms being served food by them, being pampered like children and sharing personal memoirs of pain and longing. While I was keenly listening to their jovial and intimate conversations with their Didi(Geetanjali Babbar), I couldn’t help but admire their courage and at the same time wonder at how humane and sensitive these women are in terms of expressing themselves, whom the society often condemns for being cold and inured to human emotions. It took a few interactions and general conversation to break the ice before the women involved could be open and comfortable, as I was interested to know about their most intimate aspect, i.e. their experiences and feelings related to their bodies. In a few visits, it seemed possible to have a couple of group discussions and personal conversations with women who were getting trained and whose children were taken care of there. The respondents in general were about 50 to 60 women active in prostitution, based in GB Road. Their ages varied from 18 to 40 years. I had a few focussed group discussions (FGDs) and a few personal conversations with women on a one-to-one basis. Suman and Geetanjali, volunteers at the NGO, helped me in breaking the ice and facilitating my conversations with them. The conversations were in Hindi, the translations of which shall be provided in what follows. In most of the studies and reports, generally the questions are centred around how they entered this place, whether forced or voluntarily, and issues around it. However, this is not my main concern, though I shall argue later that how the false distinction between forced and voluntary prostitution and implications drawn from there actually misguide the issue of empowering the women at stake. As mentioned before, body is central to prostitution, as it is the primary commodity in the financial transaction. My concerns are around the notions of self-ownership and control of body for women in prostitution. I have tried to unravel the rhetoric and frame it in questions. For this fieldwork, I had prepared four sets of questions to understand the dynamics between women’s bodies, agency and rights in prostitution. The first set of questions directly engage with body, i.e. the relationship women have with their bodies, how they maintain and guard their bodies and whether they perceive their bodies differently from other women in society. The second set of questions dwells around women’s bargaining powers with clients like conditions of using a condom or the rate and whether they have

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any protection from violence and torture. Further, a third set of questions is around their access to information and resources through which they have a better control over their fertility and prevention of sexually transmitted diseases. This also includes access to safe abortions and other medical services. The last set of questions looks at the level of women’s awareness around laws and rights, their perception about the state and other machinery like the local police or doctors and whether there are any real exit options for them. For most of the respondents, the feeling they associate with their bodies is that of shame and disgust, which has created a sense of alienation, a body–self split. It is as if the body is social, a commodity, but the self is own and sacred. A few of the responses came as follows: It is shameful Didi. I find my own body dirty. Don’t know how many dirty hands have touched it. Sometimes, does not feel like my own. In this business, it is the body that is most important. We earn our meals (survive) by selling our bodies. And in the process of selling it again and again, it has become dirty. Women are also permanently shamed by their experiences and feel ‘disgusted’ with them. They believe that this identity of a ‘prostitute’ will remain with them for the rest of their lives as a stigma from which there is no redemption. This is because they are sure that there is no space for them in the society outside their world. Their silence and shame are based upon sexual exploitation and constant abuse that are compounded by public opinion that characterizes women in prostitution as morally degraded and ‘fallen’, a threat to society, instead of seeing them as succumbing to their social and economic vulnerabilities. Being constantly judged as a moral and a social threat, most of my respondents considered themselves as same. In other words, they viewed their ‘self’ through the societal ‘gaze’ with disgust and shame. Since it is the ‘body’ that is at stake, they disconnect themselves from it, especially while performing sex with a client. As one said, ‘It is much easier these days. I close my eyes and take myself somewhere else. As if I am not there . . . It’s just my body’. As argued by some, this ability to disconnect is an expression of agency of women who use it as a tool to survive. However, if one looks at it closely, it is not a ‘disconnect’ but giving up on the ownership and control of one’s own ‘body’, and this could have dangerous implications. From considering violence as natural and routinized and thus acceptable to having no sense of a claim to better access to health services and better working conditions, women live in this false consciousness.

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Apart from seeing a disempowered/alienated self, a contradictory aspect of their understanding of self comes from seeing their bodies also as a site of labour, which suggests the existence of ‘agency’ also. However, between this notion of ‘body’ as a ‘commodity’ and a ‘worker’, what hovers in between is the objectification of these women’s sexual relationships, conditioned by the ways in which involvement in prostitution have removed the boundaries between the women’s work lives, private lives, intimate relationships and family relationships. Such accounts could be seen in other ethnographic studies as well where women talk about disassociating themselves from their own bodies. In a sense it could be seen as empowering and as being in control, but at a deeper level, it only indicates a last attempt by a disempowered, helpless woman with no choice but to distance herself from a stigmatizing label of a ‘prostitute’ and thus refuse to accept the socially condemned personal characteristics associated with that label (D’Cunha 1992).This feeling also comes with a persistent pain and illness they experience in their bodies, which happens to some extent due to the nature of their work and also lack of access to better healthcare, abortion facilities and a constant pressure to look beautiful according to market standards set for them, like being voluptuous, fair and loud in appearance. As discussed in the introduction, the contemporary trend of the ‘high-fashion beauty complex’ of designing and defining bodies based on unrealistically superficial market models goes to extreme measures in prostitution apart from the fashion and film industries. In a typical way, women explained how their diet is rich in non-vegetarian food and excess meat to have a voluptuous body. Since mostly when girls enter the market they are thin, the owners of brothels make a conscious attempt to increase their weight, especially in the breast and posterior areas, as that is in demand. With continuous intake of oil and meat0rich food for years, many of them develop diseases and health issues. Like one complained, We get a lot of non-vegetarian food, so that there is vigour in body. In the beginning, we found it nice, but with age, body becomes very heavy. One also starts getting diseases because of this. I have a high blood pressure issue now. Further, they are expected to maintain beauty standards, which forces them to use cheap, high-lead cosmetic products, especially fairness creams. One can observe this frustration in women who have spent a few years in the business and are losing their charm. They resort to unhealthy beauty treatments and medicines to stay in demand.

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Girls who are brought too young, and do not have enough flesh on them, are given medicines to put on weight (One tells me it is the bust-enhancing hormone pills). There is no demand for thin and bony in our business. Another young girl responded, These medicines give me a lot of pain. Weight has increased and during my periods, it hurts a lot. Body remains numb and cold. Though it sounds almost cliché, signs of physical and mental violence are visible and blatant. Some of the respondents gave a few details on how customers try to hit them or mistreat their bodies for sexual pleasures that often go unquestioned by the owners (madams) of the brothels. The focus of much feminist-oriented research on women in prostitution has demonstrated physical and emotional violence that shows and leads to their total loss of ownership and control over their bodies as well as diminishes their agency.9 Sometimes we get hit by the clients then . . . see, so many marks on my body then so man marks. Violence is endemic to prostitution. First, young girls brought or forced into prostitution are conditioned to violence from the brothel owners, which could be men or women. It becomes a tool to control their bodies and damage their agency to protest or complain. Once a woman is conditioned and becomes impervious to torture, she is introduced to the trade. This habitual violence makes her receptive to any violence or abuse by her customer. Thus the vicious cycle continues (Brown 2000: 177). The second set of questions looks at the bargaining powers that women service providers have in the sex industry. Around 80 percent women responded that they don’t get any protection from the madams of brothels but devise their own ways to deal with it. There are no directives or preventive measures in the form of instructions to clients, nor is there any recognition or intimidation by law. Instead, violence in sexual acts becomes a selling point of women that are exploited by owners. One can notice the extent of vulnerability and even risk that women face of physical violence, torture and humiliation on a day-to-day basis. Various studies around the world have established a pattern of physical and mental torture as inevitable and routinized in prostitution.10 One of the most prominent guards is the use of expletives and foul language so commonly heard in this area. Otherwise, it is women who negotiate with their customers in their personal capacities. Thus, there is huge

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vulnerability and even risk that women face on a day-to-day basis without any support from the management. And the response was: We abuse . . . then only people listen. One of them confides: Setting with the customers also helps. If said with love, a few customers agree to use condoms and that helps. Sometimes, we also have customers who get few stuff for us like cosmetics. I ask one to get a good fairness cream so that I don’t get rashes by using low quality creams. On the question of terms of negotiation with the management, the deal is that women are supposed to pay a rental amount in addition to some more for food and other services to the owner of brothel. Thus, a woman is always under the burden of earning as much money as possible so she can save some after paying the charges. Some of them even try to send some amount home to their village. Things are fairly better when a girl is young and in high demand; as there are more clients, she can charge more and contingency money for disease or illness is less. However, as her age increases, her demand decreases, intake of alcohol and drug abuse becomes regular and health issues crop up along with a falling clientele. She is forced to take loans from the owner that only multiply with time. All of this results in ‘debt bondage’, as month by month her inability to pay the money back puts her in a debt trap. More often than not, she is never able to come out of that bondage. The term ‘debt bondage’ has been used to explain the structure of prostitution in the global sex industry, more commonly in Asia. The debt is not fixed, and it expands at the whim of the brothel owner. Thus eventually, debt bondage is used to force women into prostitution and to make them accept clients and comply with sexual acts that they would otherwise refuse. Louise Brown, in her extensive ethnographic work in Asia, writes about similar trends in South-East Asia like India, Cambodia, Thailand and Bangladesh. She describes a ‘Chukri system’11 for the new entrants in Kolkata on the same lines and defines it as sexual slavery (Brown 2000: 117). Women living in such a debt trap are hardly able to negotiate with owners over rental money, working conditions, access to medicines and health services and number of clients in a day. The fact that women’s ‘bodies’ get trapped quite literally in the debt bondage, making them reel, struggle and manage to survive in this vicious cycle of debt and dependency without any hope of freedom, becomes a determining

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factor in taking away their sense of ownership and control of bodies. They do not think they own their bodies anymore. This total loss of ownership also comes from the fact that most have been sold at some point of time. This does permanent damage in terms of making them feel ‘sold out’ and being ‘owned’ by a third party. The other crucial question is about women’s bargaining power with clients, like use of condoms or performing certain sexual acts. Most of the respondents informed me that it is hard to negotiate with men. The reason is that women enter into a contract with a client from a low and weak position. This is because the clients are under the impression that they have ‘paid’ for the body and thus own it for the time, which gives them a right to procure the sexual services as per their demands. This is particularly evident when it comes to condom use by clients. As described by the respondents, women who demand condom use by clients are seen as unappealing and difficult. The younger ones have no knowledge about it, and therefore there is no deliberation around it, and neither is there any effort to inform them about safe sex and health risks. They learn through experience but in the process get subjected to violence, exploitation and humiliation. According to the respondents, it is always a point of tension to be negotiated with the client, but ultimately they are forced to comply with his demands. Over 70 percent Nepali sex workers in India interviewed in a UNICEF study said they had rarely or never refused to have sex.12 As described by one: Some clients use condoms but many don’t. Madams tell us not to use the condoms as customers don’t like it and they will not earn so much money. We can’t make the customer use condoms. If they don’t want to, and we try to make them, they just go to another woman and we have to lose business.13 The bargaining power further reduces as age of the woman increases and her charm declines. Age is a great detriment in this business. The fear of losing clients makes women succumb to all kinds of demands made by them. The loss of control of one’s body in terms of avoiding unwanted pregnancy and demanding ‘safe sex’ becomes obvious in this case. I was particularly interested to interact with women who seem to have ‘settled’ here, ‘accepted’ this as ‘work’, have become more assertive in demands and thus supposedly exercise some form of agency where the body becomes the site of work and labour. This question plays out in terms of how they perceive of what they are doing for a living. The more they have sense of themselves as workers, the stronger is a sense of agency. Some of them who strongly feel that they are

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engaged in a profession implicitly rejected two strong notions: that they are involved in anything that is illicit, criminal or illegitimate and that they sell sex only and not their bodies. And therefore issues like poor working conditions, lack of access to health services and even humiliation and disrespect they face due to what they do appear more like occupational hazards to them that could be rectified and improved. Further, this idea of seeing themselves as workers also emanates from recognizing their context of abject poverty and lack of choice that almost compelled them to take this ‘work’. Since they do not see any better prospects or alternatives for themselves any more, they hope for some reforms and support within the system. A mere understanding or a self-imposed consciousness of being a ‘worker’ may not help in building a strong sense of agency. The issue here is that in spite of being aware that they are doing ‘work’, what is the nature of this work? Can we argue to legitimize ‘work’ that is based on the structure of patriarchal sexual economy where women are treated as ‘means’ to fulfil sexual services of men? Within the rhetoric that seeks to establish the sex industry as a legitimate ‘career’, certain questions are seldom asked: what kind of ‘profession’ can this be where there is no qualification requirement (apart from preferably being female and young), no mobility structure and where neither those who use prostitutes nor those who are prostituted view it as a desirable aspiration for themselves or their children (Kelly and Regan 2000)? In the final analysis, agency in prostitution is ultimately the male sexual experience. It is he who enjoys the power of money, conquest, ego and sexual gratification and who acts out his misogyny with impunity (D’Cunha 1992). It is he who deludes himself into believing that he is the subjective choice of the woman or several women. Men justify this abuse in many ways, including assuming that the sex of prostitution is part of their biological drive, an expression of masculinity, something that takes place between two consenting individuals, is part of the indigenous culture and is a sexual experience that the women ask for and enjoy. Payment for sex is another conscience salver. As one of the responses I received was: It is work but this work has no respect and dignity. Another point of observation is that in spite of a more prominent weaker agency as an individual, women as a group, exercise a a collective agency’ that they use to assert themselves against the structure, local authorities and police, trying to protect their collective identity and existence. Now we have settled here. These women are like family. We are with each other during good and bad times. Celebrate festivals together. Nobody gives respect outside.

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What is intriguing in this system is the ‘invisibility’ of clients who create demand in a market that has always recognized the naturally excessive male sexual drive that ‘must be fulfilled within and outside marriage. What do these women make of men and the market, and what does this market constitute of or how it affects the following? To begin with, for women, men as clients are considered the main source of income, an income that can only be generated by exchanging sex for money. The everyday realities of lives that had been fractured by poverty and impoverishing effects of engagement in prostitution provided the material context in which these women constituted men as money. Further, most of the responses reflected an already established accepted notion of male sexuality constituted as an uncontrollable physical impulse that thus needs to be appropriated beyond the civil/moral boundaries of marriage. Masculine sexuality is constructed as biologically driven, an aggressive need and something that is instrumental, rather than expressive. Such a construction of a natural male sexual drive has created two benefits for the market. First, many women feel themselves free of any moral baggage/obligation and find the relationship with customers routine or naturally justifiable. Some even consider it an extended form of social and personal service of fulfilling the extra sexual needs of men, a biological imperative, without threatening the institution. By utilizing discourses in which men’s sexuality is perceived as a dangerous sexual impulse (Wilson 1987) and that prostitution provides a catharsis for men’s sexuality, it is projected to have a natural and a never-ending demand in the market. Thus the demand itself goes unquestioned. Secondly and more impactful is the result that men who buy sex also buy into this idea of a ‘natural biological demand’ that needs to be fulfilled and cannot be judged. Instead, in indulging in extra-marital affairs that could sabotage marriages or rapes that could again disturb the moral order, prostitution seems like a legitimate system. Thus it makes the customers ‘invisible’ who ironically do not have to face any humiliation or shame in actually visiting these women. Thus the damage and victimization happen on only one side. Why is this case? Thus a field study of customers in prostitution that are dominantly men is not even possible because of the way in which the market shields them and exposes women only. I shall return to this later. The final set of questions concerns the scope of rights for women in prostitution as equal citizens and their perception of these rights and state and legal institutions. What one gathers from the focussed group discussions is not surprising, as has been pointed out in some reports before.14 About 90 percent

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of women are unaware of their rights against violence and exploitation as equal citizens of the state. However, there is particular distrust that women have for the state and its institutions, especially the local police. Women described the constant harassment by the local police. There are random arrests made that are averted through sexual exploitation or through money that only gets added to the loan account of that woman. They do not rely on the local police authorities, and most of them reiterated that in instances of becoming victims of violence or exploitation, they cannot reach out to the police for support, as they are regularly pacified by the brothel owner (Brown 2000). They have no support system outside their brothel, and they do not relate to the state in any positive way. Another response came as: The Government does not care about us. It has been many years, nothing has changed here . . . some NGOs do come . . . ask a few questions . . . some have tried to inform us about the use of condoms. But the government has never come for our support. The Immoral Traffic Prevention Act (1986) deals with prostitution in India. Although the goal of the ITPA act is to eliminate prostitution, it does not criminalize prostitution per se but convicts any third party who facilitates prostitution through force or coercion. It also suggests that a woman offender could be detained to a ‘corrective institution’ who solicits publicly. In other words, the act seeks to have a ‘protectionist’ approach towards women by preventing them from being trafficked. Secondly, it also has a ‘corrective’ approach where it incorporates the idea of ‘rehabilitation or rescue’ of these women from prostitution. Field studies suggest that the impact of the law have been to the contrary.15 The problem here lies with the ITPA act itself, as such is the nature of the legal language that it eventually leads to victimization and harassment of women by local authorities. Most of the time, it gets misinterpreted and misused by the law enforcement agencies, which means appearance in court, arrests, fines or bail and heavy payments to lawyers for bail. Data on the enforcement of the law suggests in Kerala that 90 percent of those arrested under the act are the women in prostitution. The rest include brothel owners, pimps and clients (Natraj 2001). Most women are arrested under Section 8 B that prohibits ‘soliciting at public place’. The case is hardly taken seriously, and sorted out with money or free sexual services, as narrated by women. A woman said: What can the government do? Maybe they can tell the police not to harass us . . . let us do our work . . . every month, there is a false raid, and they

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pick up some girl . . . then, madam ji has to pay for her release that gets added to her rent, something that adds to the burden [. . .] The law is not just misinterpreted by the local police but used as a tool to harass and even sexually exploit women involved. To be more specific, a right meant to be used as a trump (to use Dworkin’s phrase) by women to protect them from force or coercion is used as a tool to exploit and oppress them. The reason, I argue, is that within the structure of patriarchal sexual economy that prostitution operates in, women completely lose their sense of self-ownership and control of their bodies. As argued before, everyone has a stake in her body, from a brothel owner to invisible clientele. . . . This loss of self-ownership and control impedes her ‘agency’, her ability to question, act, protest or demand. This emanates from a fundamental idea that women are treated as means and not ‘ends’ as persons in themselves. Their bodies are ‘means’ to fulfilling/performing various socially constructed purposes/roles as ‘end’ of state, community, religion and family.16 Unless we attempt to reclaim/retrieve the bodies of women from these traditionally patriarchal institutions, including the state, women will not gain self-ownership and control of their bodies. This lies at the heart of seeing rights as trumps for women in prostitution.

Concluding remarks Based on the field study, I have identified three categories to understand the context of ‘body’ for women in prostitution, the construction of ‘agency’ and their perception of rights: The first category consists of women who do not have a sense of ownership but have some control over their bodies. These constitute women who might mitigate their way through in matters of unwanted pregnancy, or condom use and other bargaining powers, but lack ownership of their body. This becomes evident from the fact that as they do not perceive themselves as independent agents entitled to rights and opportunities as equal citizens of the state. Thus, there is no attempt to move beyond prostitution and seek more opportunities and life choices. The inherent beliefs of sexual domination of men and a compulsive male sexual drive to be fulfilled are deeply rooted, and thus the self–body split is stronger here. A secondary category consists of women who do have a sense of selfownership but no control over their bodies. What one could perceive from this is a weaker sense of agency where women see themselves (personhood) as being subsumed within their disempowered bodies. This is reflected in their inability to access medical services, financial assets, abortion facilities and other ways to have control over their bodies or life decisions in general.

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Women are at a constant risk of unwanted pregnancy or physical abuse, and their bargaining power with management or clients is abysmal. Third is a worst kind of scenario, where a woman feels neither ownership nor control over her body. Here is a case of ‘disempowered agency’. This is found more in the case of either very young girls or older women. Unfortunately, most girls enter this profession at a very young age that conditions them to abysmal working conditions, violence and helplessness, with no hope for rescue. In the process, their ‘agency’ is already defeated. As for older women, with demand of their body reducing and their desperate need to survive, they deliberately give up on the ownership as well as control. These categories make it clear that the ideas of self-ownership and control are problematic when we look at women in prostitution and the construction of their agency. In light of the discussion where we have deconstructed the body of a woman in prostitution as a site of choice, liberation and violence, this fieldwork has brought forth certain ideas that are crucial to understanding the failure of rights talk for women. The chapter has made an attempt to unfold the dynamics of relationship with body unfolded as a a site of violence, liberation or choice, in this case . This relationship constitutes the basis of the formation of her agency, which in turn makes her capable of making sense of, accessing and exercising rights in a given situation. We also saw that prostitution is steeped in a complex maze of patriarchal sexual economy where woman’s bodies and agency are confined within its boundaries. The chapter therefore emphasizes that unless women reclaim their bodies and agency from the prevalent patriarchal sexual economy, rights would remain empty talk for women in prostitution. The chapter has made an attempt to argue that it is through ideas of ‘self-ownership and control’ over body, women can reclaim their bodies in any significant way and only then they would be able to make sense and exercise rights as trumps against violence and injustice. In other words, the missing link in the philosophical foundations of Dworkin’s theory of rights as trumps is the idea of an empowered agency based on women’s self-ownership and control over their bodies. Further, one feels convinced that his principles of ‘equal moral concern and respect’ and equal moral independence are incomplete unless we include women’s ownership and control of their bodies for a vision of substantive equality that encompasses gender in all contexts. This would make rights as trumps work for women prostitution and elsewhere. The chapter has primarily tried to argue and theorize for self-ownership and control of bodies. This, I have argued, is crucial to formation of an empowered agency, a prerequisite to the vision of rights as instruments of freedom and empowerment in the lives of women. In the context of Dworkin’s theory of rights as trumps, there are limitations in the moral/

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philosophical foundations of equality as the basis of his theory that obscure its vision for gender equality and justice. The principles of equal concern and respect and equal moral independence are principles of great value for gender equality, and it is the presence of these rich foundations in Dworkin’s theory that brings it closest to resolving the liberal paradox. However, as observed in the present context of patriarchal sexual economy, it is highly imperative to retrieve their bodies from the structure so that women could claim ownership and control of their bodies for an empowered informed agency. The chapter has done a focussed reading of prostitution in terms of women’s perception of their bodies and their purposes, followed by how the rights discourse within each idea interacts and intersects with these perceptions. One of the key arguments in this chapter is that the idea of how women own or control their bodies is crucial to the construction of their agency, which in turn determines their understanding and practice of rights, especially for their sexual and reproductive capacities, two areas essentially derived from patriarchal construction of women’s bodies. The chapter has strived to establish the importance of the idea of self-ownership of body and its consequence on the relationship between body and agency for women through a substantial analysis of interconnections between body, ownership and agency situated and operating in the current sexual political economy with reference to intimate bodily rights, namely sexual and reproductive rights of women. To extend it further, I would also like to argue that all kinds of rights that women enjoy as citizens of a state have a strong link to how women relate to, understand and define their bodies. Perhaps owning one’s body is a necessary element of citizenship in an affirmative but noninterventionist state (Eisenstein 1988). Self-ownership does not occur through a process of excavating the pre-social self or disentangling oneself from social influences. Most feminist theorists of complex social construction would regard this as futile. Self-ownership occurs, first, by becoming aware of the way that one’s self and one’s self-conception are socially constituted. A woman may become aware, for example, that images or attitudes she has regarding her body, her competence to perform certain tasks or her strength or vulnerability in relation to others are shaped by norms that describe these matters at least partly as a function of gender. Developing this awareness does not permit her to transcend these socially conditioned visions of self, but it allows her greater room in which to affirm, reinterpret, resist or partially replace them. When she becomes aware of them not solely as attitudes that she holds but as norms embedded in social institutions or practices that are transmitted to her and to others, she may begin to compare them with other feelings or intuitions that she has about herself. Though she does not have recourse

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to some complete, pre-social self that can be uncovered, she may draw on moments of insight that arise from her reflection on her experience or attitudes she holds that are shaped by other social influences. This process of reflection and comparison, which is facilitated by her awareness of certain self-conceptions as socially shaped, may allow her to identify more strongly with certain images and strive for greater distance from others. Finally, I would like to emphasize three components that define selfownership and control of body. First, as proposed before, it is highly imperative to treat women as ends in themselves and not as means to serve different ends assigned by other stakeholders. This point has found strong defence in the writings of Martha Nussbaum and her theory of a capabilities approach. Nussbaum begins with a critical view of the formal notion of equality based on a Kantian notion of the person as ‘equal, moral, rational, objective, free beings’, rhetorically a masculine interpretation in most liberal theories, including those of Rawls and Dworkin. It is an exclusionary and discriminatory perspective. She draws attention to the fact that life is full of contingencies, and societies are marred with deeply embedded inequalities, so all individuals do not fall into this category, especially women and physically/mentally challenged people. She proposes to change the political conception of Kant’s person as ‘equal and independent’ to an Aristotelian conception of the person as both ‘capable and needy’ (Nussbaum 2000), or as Marx puts it, ‘in need of a rich plurality of life activities’ (in Nussbaum 2000). Taking a substantive view of equality, she asserts on the scrutiny of social structures and institutions from the perspective of simple and complex gender inequalities and emphasizes at importance of acknowledging various constraints that women face in everyday life. Rights as trumps on the basis of capabilities could be instruments of empowerment for women to overcome these constraints. Secondly, her argument to treat each individual as ‘end’, worthy of equally dignified human existence, brings out the relevance of women’s agency. As argued in previous sections, women’s lives are defined around their community identity that overrides their gender identity and personal choices like right to abortion. A woman’s individuality has an instrumental value that is used to maintain the conventions of her family or community, evident in women’s abortion rights in India. Nussbaum argues that all these roles come into the picture only after she is recognized an ‘independent entity’ as an end and given equal opportunity to be able to exercise her sexual and reproductive rights as independent agents, which may be not conducive to her community identity. We see a strong link between empowerment and agency here as empowerment of women is not only in terms of overcoming constraints but also developing a strong agency, conscious of their needs and interests and thus capable of making the appropriate use of rights.

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The second component is the concept of responsibility and obligation towards one’s body and self in the choices and decisions that individuals make. This might be what Claudia Card calls ‘taking responsibility for oneself’ – standing behind one’s own choices, identity and self-definition, which she has used in the context of lesbian agency (Card 1991: 141). As described by Sarah Hoagland, ‘it is the ability to act under oppression: to continue to make choices, to act within the oppressive structure of society and challenge oppression and to create meaning through our living’ (Hoagland 1988: 13). This amounts to reclaiming and reasserting one’s bodily integrity and dignity in the face of all oppression. This is a significant proposition because, as argued, women’s bodies are defined and confined in a patriarchal sexual economy, and for them to be able to understand and use rights as trumps, they need this component to relentlessly challenge the oppressive forces. In the process, they are also constantly negotiating and defining their agency. The body gradually transforms from being a site of violence to being a site of freedom and agency. The third component is derived from limitations of the state when it comes to implementation of rights. On one hand, in a deeply diversified society like India where gender inequality is justified in the name of culture and tradition, it becomes all the more important to develop some neutral ethical principles beyond cultural relativism that could be translated into state policies. However, on the other hand, it is strong and gendersensitive state policies that could actually bridge the gap between women and their access to rights. Therefore, self-ownership and control of body also implies having access to the social resources for assuring women’s bodies health and well-being. As part of collective feminist efforts to reclaim self-ownership and control of bodies, one must redefine all essential healthcare and services (and a safe, clean environment, education, housing, a livelihood) as common property to which all people, especially women, are entitled access. It is important to reconnect self-ownership to the right to communal resources (Petchesky1984). In the context of prostitution, it demands strong state intervention in terms of providing meaningful choices and viable exit options for women so that they can pursue their life goals and fulfil their aspirations as ‘ends’ in themselves. In prostitution, it would mean providing viable alternate livelihood choices and avenues for better education and skill training. It would mean making consistent efforts to give equal opportunities to women in prostitution so that they could be included in mainstream society without prejudice and could lead lives of dignity. It would also include a more responsible attitude of the state authorities like the local police or doctors. This chapter has made an attempt to argue for a notion of a free and empowered agency derived from women’s sense of self-ownership and

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control of body as a necessary component of equality as the basis of rights as trumps. It has tried to complete an unfinished agenda set by Dworkin of making rights real instruments of freedom in the hands of women that would enable them to live lives of equal concern, respect and moral independence in prostitution and elsewhere.

Notes 1 The ‘Nirbhaya’ gang rape case shook the capital city of Delhi, leading to massive protests by civil society groups and women’s organizations. The incident saw unprecedented outrage in common people and their participation in demanding safe public spaces for women. 2 Recent statistics on increasing violence against women in India can be found on www.freiheit.org, www.riceinstitute.org and ncrb.nic.in (National Crime Records Bureau) (accessed on 10 June 2017). 3 This is ‘ambitious’ as Dworkin’s positions on pornography and abortion rights of women are a subject of wide discussion and debates in political/ feminist theory. 4 For example see Gerda Lerner. 1986. ‘The Origin of Prostitution in Ancient Mesopotamia Signs’, Journal of Women in Culture and Society, 11: 236–254; Lars Ericsson. 1980. ‘Charges against Prostitution: An Attempt at a Philosophical Assessment’, Signs: Journal of Women in Culture and Society, 90: 335–336. 5 I acknowledge the rising popularity of ‘gigolos’, men providing sexual services to women. However, I am limiting myself to a more dominant and standard nature of prostitution. 6 For an elaborate discussion of this argument refer to Martha Nussbaum. 1998. ‘Whether for Reason or Prejudice: Taking Money for Bodily Services’, The Journal of Legal Studies, 27(S2): 693–723 and Nivedita Menon. 2012. Seeing Like a Feminist. New Delhi: Zubaan. 7 Demands based on argument is fully expressed in Durbar Mahila Samanvaya Committee DMSC. 1997. ‘Sex-Workers’ Manifesto: Theme Paper of the First National Conference of Sex-Workers. Kolkata: DMSC. 8 As noted during conversation with volunteers at Kat-Katha- NGO. 9 This argument has been a consistent one from a radical perspective reading of prostitution, and references have been given at numerous places. A focussed reading on agency and violence can be found in Sheila Jeffreys. 1997. The Idea of Prostitution. Melbourne: Sphinax. 10 See Marjan Wijers and Lin Lap-Chew. 1997/1999. Trafficking in Women, Forced Labour and Slavery-Like Practices in Marriage, Domestic Labour and Prostitution. Utrecht, The Netherlands: GAATW/STV and Daniella Danna. 2000. The Position of Prostitutes in EU Countries: Law and Practice. Paper for the 4th European Feminist Research Conference, Body, Gender, Subjectivity, Crossing Borders of Disciplines and Institutions, University of Trento. 11 For a description of Chukri system in Kolkata see Louise Brown. 2000. SexSlaves: Human Trafficking in Asia. UK: Virago.

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12 A detailed report can be found in Linnet Pike. 1999. Innocence, Danger and Desire: Representations of Sex: Workers in Nepal. UNICEF-A Situation Analysis. New York: UNICEF. 13 As shared by a group of women involved in prostitution. The name of the person cannot be revealed for ethical reasons. 14 One such detailed study is in Devinder Mohan Thappa et al. 2007. ‘Prostitution in India and Its Role in the Spread of HIV Infection’, Indian Journal of Sexually Transmitted Diseases, 28: 69–75. 15 See A. K. Jayasree. 2004. ‘Searching for Justice for Body and Self in a Coercive Environment: Sex Work in Kerala, India’, Reproductive Health Matters, 12(23): 58–67. 16 See the first section of the chapter for a detailed argument.

Bibliography Bartky, Sandra. 1990. Femininity and Domination: Studies in the Phenomenology of Oppression. New York: Routledge. Bhave Pushpa. 2008. ‘Women’s Movements in India: Do They Include Female Sex Workers? Proceedings of a Live Debate among Women Activists-A Panel Discussion’, in Rohini Sahini et al. (eds.), Prostitution and beyond: An Analysis of Sex-Work in India. New Delhi: Sage Publications. Bordo, Susan. 1997. ‘The Body and Reproduction of Femininity’, in Katie Conboy, Nadia Medina, and Sarah Stanbury (eds.), Writing on the Body: Female Embodiment and the Feminist Theory. New York: Columbia University Press. Brown, Louis. 2000. Sex-Slaves: Human Trafficking in Asia. UK: Virago. Card, Claudia. 1991. ‘On the Logic of Pluralist Feminism’, in Claudia Card (ed.), Feminist Ethics. Lawrence: University Press of Kansas. D’Cunha, Jean. 1992. ‘Prostitution Laws: Ideological Dimensions and Enforcement Practices’, Economic and Political Weekly, 25(17): WS34–WS44. Dixon-Mueller, Ruth. 1993. Population Policy and Women’s Rights. US: Praeger Publishers. DMSC. 1997. Sex-Workers’ Manifesto Theme Paper of the First National Conference of Sex-Workers. Calcutta: DMSC. Dworkin, Ronald. 1977. Taking Rights Seriously. Massachusetts: Harvard University Press. Eisenstein, Zillah R. 1988. The Female Body and the Law. Berkeley: University of California Press. Gangoli, Geet. 2008. ‘Immorality, Hurt or Choice: Indian Feminism and Prostitution’, in Rohini Sahini et al. (eds.), Prostitution and beyond: An Analysis of Sex-Work in India. New Delhi: Sage Publications. Guy, Donna. 1995. Sex and Danger in Buenos Aires: Prostitution, Family and the Nation in Argentina. Lincoln: University of Nebraska Press. Herman, Judith. 1992. Trauma and Recovery: The Aftermath of Violence-from Domestic Abuse to Political Terror. New York, USA: Basic Books. Hoagland, Sarah. 1988. Lesbian Ethics: Towards New Value. Palo Alto, Calif: Institute of Lesbian studies.

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Jayashree, A. 2004. ‘Searching for Justice for Body and Self in Coercive Environment: Sex Work in Kerala, India’, Reproductive Health Matters, 23(12): 58–67. Liz, Kelly and Linda Regan. 2000. Rhetoric and Realities: Sexual Exploitation of Children in Europe. Children and Women Abuse Studies Unit. London: University of North London. Langton, Rae. 1990. ‘Whose Right? Ronald Dworkin, Women and Pornographers’, Philosophy and Public Affairs, 19(4): 311–359. Macklin, Ruth. 1989. ‘Liberty, Utility and Justice: An Ethical Approach to Unwanted Pregnancy’, International Journal of Gynaecology and Obstetrics, Supplement, 3: 37–50. Menon, Nivedita. 2012. Seeing Like a Feminist. New Delhi: Zubaan. Mill, J. S. 1859. On Liberty. London: Longman, Roberts and Green. Misra, Geetanjali, Ajay Mahal, and Rima Shah. 2000. ‘Protecting the Rights of Sex Workers: The Indian Experience’, Health and Human Rights, 5(1): 88–115. Natraj, Shyamala. 2001. Women in Prostitution in India: Some Realities. Chennai: South India Action AIDS Programme. Nussbaum, Martha. 2008. ‘Whether from Reason or Prejudice: Taking Money for Bodily Services’, Journal of Legal Studies, 27(S2): 693–723. Nussbaum, Martha. 2000. Women and Human Development: The Capabilities Approach. Cambridge: Cambridge University Press. Petchesky, Rosalind. 1984. Abortion and Woman’s Choice: The State, Sexuality and Reproductive Freedom. New York: Longman. Rich, Adrienne. 1984. ‘Compulsory Heterosexuality and Lesbian Experience’, in Ann Snitow, Christine Stansell, and Sharon Thompson (eds.), Desire: The Politics of Sexuality, pp. 212–242. London: Virgo. Sanlaap. 1998. Yet Another Right: A Report on a Seminar to Discuss Different Views on Legalization of Prostitution. Calcutta: Sanlaap. Sen, Amartya. 2001. Development as Freedom. Oxford, UK: Oxford University Press. Stoltenberg, J. 1990. Refusing to be a Man. London: Fontana. Turner, Bryan. 1984. The Body and Society. Oxford, UK: Basil Blackwell. Van de Kaa, Dirk J. 1988. ‘First Note on the Right to Decide Freely and Responsibly’, in B. V Norren and H. A. Vianen (eds.), Profession Demographer: Ten Population Studies in Honor of F. Zwart. Groningen: Geo Pers. Wilson, Glen (ed.). 1987. Variant Sexuality, pp. 176–200. London: Croom Helm

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Women in politics and the subject of reservations Mary E. John

In 1996 significant sections of the women’s movement came out in support of one-third reservations of seats in the state and national assemblies, which took the form of tabling a Women’s Reservation Bill. In spite of all the lip service paid at the time and in successive years, including the declared support of major parties, the bill has yet to be passed. It is quite in keeping with these globalized times to locate this new interest as part of a worldwide concern with questions of governance and the lack of gender equality in the sphere of political representation. Most discussions of reservations for women in India have contextualized the issue in relation to the prior move to introduce reservations at the local level (panchayats and municipalities), a rather quiet or at least publicly uncontested process which took place during 1993 and 1994 in the form of the 73rd and 74th Constitutional Amendments. This chapter, however, demonstrates that the effective history of thinking about political representation in the form of reservations for women is as old as the women’s movement itself. Feminist engagement with the political domain became caught up within dynamics that grew out of the specific dilemmas and contradictions of political representation and shifted across time from the colonial to post-Independence and the more contemporary period after the 1990s that I have elsewhere designated as ‘postnational’ (John 2014). It is surely rather paradoxical to witness a stronger feminist desire to inhabit the legislative apparatus of the state in its colonial and present-day ‘neo-liberal’ forms than in the heyday of national development. On the face of it, one would have surely imagined the opposite to be the case. At the same time, certain continuities are also in evidence from the colonial era to the contemporary interest in women’s political representation, which coalesced around the repeated problem of a conflict between conceptions of women’s political rights and rights based on minority status and caste.

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Social reform, the ‘new woman’ and the subject of politics As is well known, women emerged as subjects of social reform by the end of the nineteenth century in the late colonial period. This ‘new woman’ occupied a space of tension between notions of the ‘social’ and ‘political’, which was heightened under the growing forces of cultural and political nationalism. Compared to the earlier period of social reform, the turn of the century not only witnessed new demands and opposition to British rule but also the colonial state’s response to Indian nationalism in the form of political devolution by offering Indians a greater role in governance itself. Begun at the level of local bodies in 1892 and taken forward through a series of political and constitutional reforms over the next decades, Indians sought to be included by various means of nomination, reservation and election. This was the context within which women came together to form the first organizations in their own name following from their prior experiences as members of social reform organizations that were ‘male-inspired and maleguided’ (Forbes 1996: 68). Between 1917 and 1927, the major women’s organizations to emerge were the Women’s Indian Association (WIA), the National Council of Women in India (NCWI) and the All India Women’s Conference (AIWC). Members came from different regions, from Hindu, Muslim, Parsee and Christian families, products of the educational experiments that gave them interests beyond the household. The major issue before them was precisely how to take forward agendas of social reform (still predominantly defined through the ideas of the long century behind them, with education leading the way) in relation to the largely undefined question as to whether or how they could be political. In some accounts, there should not have been a problem at all. According to Partha Chatterjee’s formulation nationalism was able to successfully resolve the major conflicts produced in the wake of social reform by ‘refusing to make the women’s question an issue of political negotiation with the colonial state’. Moreover, nationalists granted women the vote without a suffrage movement. Instead of being in public competition with men, distinctions ‘between women in the world outside the home’ were far more significant: It was against conceptions of excessively ‘Westernized’, ‘traditional’ and ‘low-class’ women that the new cultural norm was fashioned, thus setting in place a revised patriarchy whose legitimacy rested precisely on being disavowed (Chatterjee 1994131–133 emphasis original). Unfortunately, Chatterjee’s account stops with the turn of the twentieth century and does not comment at all on the complex evolution of the women’s movement in the subsequent decades. In effect, then, his arguments have the following twin corollaries: On the one hand, women ceased to be

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relevant in the next phase of the nationalist struggle; on the other hand, women’s political rights were resolved in cultural terms, as spiritual bearers of Indian nationhood. What needs to be pursued here is whether such assumptions can be sustained or whether in fact ‘women’ took on a vastly different identity precisely when the ground of cultural nationalism moved in the direction of the political claims of citizenship. (This section draws from an earlier essay, John 2000.) Now it is indeed possible to find prominent women who drew from (while also transforming) the potent ingredients of cultural nationalism to become quite extraordinary embodiments of public politics and who enacted this new woman on many stages – colonial, nationalist and even international. Sarojini Naidu was arguably one of the most famous of them. Already in 1918 she persuaded her Congress audience that giving women the vote would by no means interfere with the ‘destinies’ of men and women, which were ‘separate’ ones but united by nationalism. Nor, in the decade that followed, can it be denied that it was the British who refused to grant women the right to vote and stand for elections on the same terms as men in the new legislative councils that were formed, even though this demand enjoyed the support of most of the women’s organizations of the time, the Home Rule League, the Muslim League and the Indian National Congress, including an initially opposed Gandhi. By 1930, major women’s organizations were also deliberating the question of reservations of seats in political bodies apart from women’s voting rights. In her much-publicized Presidential Address to the All India Women’s Conference (AIWC) in Bombay of the same year, Sarojini Naidu made it unequivocally clear that women did not want preferential treatment [i.e. any form of nomination or reservation], for this would amount to an admission of women’s ‘inferiority’. This was why she was no feminist. Women’s task was nothing less than the ‘spiritual reform of the world’ (AIWC 1930: 21). Thus, even nationalism in her view limited the scope of women’s transformative potential. On another occasion she evoked ‘the indivisibility of womanhood – frontiers, wars, races, many things make for division – but womanhood combines. The queen and the peasant are one, and the time has come when every woman should know her own divinity’ (Reddy 1964: 124). Cultural distinction and political rights appear to flow seamlessly into one another, and with this crucial consequence: whereas cultural nationalism rested on claims of difference, women’s politics drew upon the universal language of unity and indivisibility. But if a figure like Sarojini Naidu could turn the experience of colonial subjection into a romantic project of feminine spiritualism and humanism, in one and the same breath dismissing feminism in the name of women’s global unity, this cannot be said for many others who became active in setting up women’s organizations and promoting women’s issues. For some

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of these women who were drawn towards agendas of social reform under the changing and politically turbulent decades of the twentieth century, the question of political rights, engagement with the colonial state, the demand for the franchise and the contentious issue of reserved seats were not so easily ‘resolved’. It may be worth recalling that the first demand for women’s right to vote (presented to Montague in 1917) appears to have been something of an accidental by-product: The initial deputation by Margaret Cousins, (an Irish feminist and secretary of the Women’s Indian Association in Madras), with the backing of D. K. Karve and the Senate of Poona’s Indian Women’s University, was for compulsory free primary education for both girls and boys. It was only when she was informed that the terms of the Montague-Chelmsford enquiry were strictly ‘political’, meant to initiate a constitutional process of self-government but without having included women in their plans, that Cousins linked the demand for education to the need for Indian women’s franchise (Reddy 1956; Pearson 1989: 201–202). Sarojini Naidu led a separate delegation demanding that women be included on the same terms as men in any political settlement for India. Unlike Sarojini Naidu, Muthulakshmi Reddy’s relationship to the question of reserved seats was somewhat different. Born into a Devadasi family in the southern Tamil country, she was educated and became trained as a medical doctor. In 1926 her name was submitted by the WIA for nomination to the Madras Legislative Council (which, along with Bombay in 1921, was the first to extend the franchise to women on the same terms as men, i.e. subject to property and income criteria). With some reluctance she agreed, only, she said, to use politics to advance her sisters’ cause. Muthulakshmi Reddy’s own descriptions and explanations of her work as a legislator were multi-voiced: Accounts of women’s inferiority, their lack of economic independence and inheritance rights, the need for marriage law reform, abolition of the Devadasi system and so on required reservations ‘to represent the women’s point of view’. As mistresses of the home, moreover, women were ideal administrators of the municipality. At the same time she voiced her feelings against separate electoral rolls for women – ‘we do not want to form a separate caste’ she said, for ‘men and women rise and fall together’. Moreover, in a situation where a majority of educated women were not qualified to vote, separate electorates would enfranchise conservative women ‘not conversant with the moving world’ (Reddy 1930: 155–161). She also questioned men of the depressed and backward classes and minorities, her ‘AdiDravida brothers and Mohammedans’, who placed more stress upon other grievances than the education of their girls (Reddy 1930: 123). Indeed, the ‘backwardness of Hindu women’ was much worse, she asserted, than the condition of backward class or minority men (Reddy 1930: 155). Unlike Sarojini Naidu, therefore, Reddy’s visible feminist struggle to carry forward

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an agenda of social reform sharpened her misgivings about the differences between women – ‘modern’ and ‘conservative’ – and eventually appears to have led to her own rethinking about the very purpose of reservations, when it brought in, in her view, ‘undeserving’ women. In one of the first extensive studies of the Indian women’s movement, Jana Everett tried to account for such differences amongst women in their relation to politics and reservations by referring to the ‘uplift’ and ‘equal rights’ factions among women’s organizations (Everett 1979). Several scholars have analysed this enormously complex period in the history of the women’s movement, especially from the point of view of the mixed fortunes of different women’s delegations before the British government and the responses of British colonialists and feminists.1 Geraldine Forbes has referred to different phases of this issue between 1918 and 1935 in terms of women’s relationships to politics and voting rights. It was only after 1930 (after the Lahore Declaration and the Nehru Report promising women ‘equal rights’) that the idea of universal franchise formed the relevant backdrop for varying stances towards the issue of reservations (Forbes 2002). Clearly there were deep differences and conflicts even within women’s organizations such as the AIWC, established in 1926, which became the most influential national women’s organization in the next decade. In an earlier study, Forbes has pointed out how one by one, women who had previously supported nomination and reserved seats (such as Muthulakshmi Reddy) added their voices to the demand for ‘equality and no privileges’ and ‘a fair field and no favour’. The official stance of the three major women’s organizations in 1932 against any ‘privileges’ notwithstanding, ‘there was a great deal of support for special electorates and nominated seats’, especially from provincial assemblies and local bodies (Forbes 1996: 107–108). Mrinalini Sinha has provided painstaking documentation and analysis of the ‘zig zags’ that characterized both debates within women’s organizations and their official positions to various committees in the wake of their successful campaign around the Sarda Act in 1929. (Sinha 1999The Sarda Act was a moment where the social and political came together as women’s organizations acted collectively across religious identities to petition the colonial state to act on their behalf. The difficult question that needs to be confronted here is how and why the question of the relationship between the social and political subsequently came asunder, and that too in the very quest by feminists for political unity. Or to put it the other way around, how and why did the need for women’s political unity become so paramount in the midst of the welter of forces and processes of that time, even at the cost of their avowed primary concern with matters of social reform? When the next Franchise Committee was set up at the close of the Second Round Table Conference to tour India and collect opinions in 1932, a

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memorandum from the all-India women’s organizations (the WIA, AIWC and NCWI) reiterated their demand ‘for the Universal Adult Franchise – irrespective of any property or literacy qualification, and with no expedients such as nomination and reservations of seats’. When their demands were not met, (once again British opinion claimed that the majority of Indian women were ‘not ready’, that implementing the franchise across the country would be ‘impractical’, even though their own recommendations sought to engineer an improvement in the male/female vote ratio from 20:1 to 5:1), women’s organizations agreed to work out some sort of transitional compromise. It is surely significant that while they opposed many of the colonial recommendations such as the wifehood qualification, their compromise included the restriction of women’s franchise to urban areas. This was because, as their written statement put it, they attached ‘equal importance to the quality as well as the quantity of the woman’s vote’; an urban vote would ensure ‘a more independent and well-organized vote – factors of vital importance . . . at the present juncture’; thus enabling ‘the educated womanhood of India to coordinate the woman’s vote on the right lines’ (in Basu and Ray 2003, AIWC 1933–1934: 18). At the same time, opposition to any kind of reservation was reiterated – ‘merit and merit alone’ was to be the criterion, even if it meant fewer seats. Those voices that believed special electorates and nominated seats would enable a truer representation and amelioration of the social problems facing women were sought to be won over or accused of being disloyal. The central aspect of this moment for the women’s movement in India is this espousal of the tenets of liberal feminism. At one level, we can see how these women’s strategic choice in favour of formal political equality was not unrelated to their own social, educational and individual advancement. The most significant issue here is, of course, that they thereby naturalized their own representative claims to speak for all of Indian womanhood while professing a language of no privileges or favours. Moreover, their official opposition to nominations and reserved seats did not stop them from demanding the presence of women in the Central and Provincial legislatures, district, municipal and other local bodies, indeed, on any commissions or committees affecting women and children, from the League of Nations to the Censor Board (in Basu and Ray 2003, AIWC 1934–1935: 70, 187). Finally, as Gail Pearson has pointed out, the very method – reserved seats – by which women were accepted as part of the Indian parliamentary culture (under the terms of the Government of India Act of 1935) was first vehemently opposed by those nationalist women whom it was later to benefit. (Pearson 1989: 199)

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But at another level, the significance of this formative period in the history of the women’s movement lies in how, precisely at the height of political nationalism, a new contradictory identity was cemented: A very specific ‘woman’ and a corresponding construction of femininity – in terms of class and caste, refinement and subjectivity – became the bearer not just of Indian culture but of a new universal citizen. From the 1930s onwards, it was women’s organizations more than any other group, even including the Indian National Congress, that clung tenaciously to universal formal rights, of which they were the truest embodiment. As Mrinalini Sinha phrased it ‘the discursive figure of the modern Indian woman, once the signifier of national cultural difference, was now rearticulated in the discourse of liberal feminism as the model for the citizen of a new nation state’ (Sinha 2000: 626). It would be a major mistake, however, to isolate women’s protests against the idea of reservations and special electorates from their resolution against the British ‘Communal Award’ of 1932, as the Ramsay MacDonald Award was popularly called, which sought to provide separate electorates and reserved seats to Muslims, Christians, Sikhs and Anglo-Indians and made ‘special’ provisions for the Depressed Classes, as the Untouchables were described. Though pledged not to get involved in party politics and stay focussed on matters relating to women’s status, prominent figures within the AIWC were able to condemn the award by interweaving their conception of the ‘best’ system of representation with the theme of the unity of all women: As Rajkumari Amrit Kaur put it, there is no question as to the reality of unity amongst us women. We want to send our best women and our best men to the councils – therefore we do not want the canker of communalism amongst us. Once we are divided into sects and communities all will be lost [. . .] (in Basu and Ray 2003, AIWC 1932–1933: 51) Seconding the resolution, Aruna Asaf Ali referred to the ‘evil of separatism’. ‘We women must do our uttermost to see that our country is not left to the mercies of job hunters. The legislatures must be filled with those who really feel that the country’s interests stand above personal or communal considerations’ (in Basu and Ray 2003,AIWC 1932–1933: 53). Other members, however, raised questions and objections. Begum Sakina Mayuzada opposed the resolution, saying that desiring the good of one’s community did not imply she wished harm on others, and K. B. Firozuddin raised the problem that Muslim women representatives might be prevented from competing under a system of joint electorates due to their comparative

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educational backwardness. But these views were brushed aside as creating barriers and ‘artificial communal hedges’, which would only lead to being told yet again that ‘we are unfit for Self-government’. A separate resolution was passed condemning the practice of untouchability, calling on women to work wholeheartedly for its abolition and for the equal admittance of the so-called untouchables in public spaces and institutions. Gandhi’s fast was referred to in the subsequent discussion as having brought ‘this disgrace to Hinduism and the Hindu community’ finally into prominence all across the country (in Basu and Ray 2003, AIWC 1932–1933: 60). Women’s organizations thus insisted that they were untouched by communalism, in spite of clear expressions of disagreement. As far as possible, declarations of dissent were not recorded by the AIWC Franchise Committee, even when it came from such important figures as Begum Shah Nawaz. ‘Minority’ opinions were regarded as numerically unimportant, since ‘it had been decided that only the majority vote counted’ (Forbes 1979: 15). But, as Forbes goes on to add, members of these organizations had always known that Muslim women were in a minority. Maitrayee Chaudhuri has also perceptively commented on the opposed perceptions of communal representation for different women: While the unity of women and the nation was endangered by communal electorates in the dominant discourses, it was the very settlement of the communal question that would ensure the safety of the nation in the notes of most Muslim women members (Chaudhuri 1993: 157).

The dilemmas of communalism and caste Clearly, therefore, women’s organizations were directly interpellated by the political turn taken by the existence of different religious communities. Right into the twentieth century, liberal nationalists envisioned the future India as being made up of discrete religious communities, Hindu, Muslim, Sikh, Christian and so on (whatever the problems attached to such a vision and parallel efforts to demarcate boundaries between ‘social’ and ‘political’ domains). They even publicly espoused the role of separate electorates. However, from the 1920s, and not only because of the series of HinduMuslim riots in many parts of the country during that decade, the meaning of ‘communalism’ changed dramatically and came to be conceptualized in zero-sum terms, in a relation of opposition to a much narrower definition of nationalism. Nationalism now claimed to stand above and outside the primordial pulls of religious community or caste (Pandey 1990: 235), loyalty to country had to exceed that of any sectarian attachments (whose public political place therefore had to be diminished), until, finally, any reference to communities was not just synonymous with religious community

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but with all that was pernicious in the British policy of ‘divide and rule’. What needs to be grasped here is that women’s organizational opposition to separate electorates brought together in troubling ways political perspectives such as these, together with their own concerns over problems of social reform. It is necessary therefore to emphasize that the whole terrain of personal law reform was defined in religious terms so that women came to be identified as belonging to their respective communities. Women’s organizations espoused the aim of a common code for women, even though they subsequently supported legal reform as it finally emerged in the 1930s and 1940s within the contours of Hindu and Muslim codification. We might then say that in 1932, before personal law reform had got off the ground, feminists feared that any kind of autonomy granted to communities in the political sphere would close off future avenues for the kind of collective action they had achieved during the Sarda campaign. However, and this is why it is so troubling, there is still a gap between the desire for collective solidarities capable of including different communities within a universally shared social agenda and a politics of abstract citizenship that, in its very claim to be neutral and united, ends up being Hindu majoritarian. The politics of representation as espoused by women’s organizations thus came to a head over the Communal Award and its subsequent fallout. No less problematic, if much less certain, is how feminists took on matters relating to caste. Gandhi’s campaigns against untouchability during the 1920s certainly played a direct role in shaping women’s organizations’ views on caste. Having also been instrumental in nominating Muthulakshmi Reddy to the Madras legislative council, a women’s organization like the WIA was, for many years, positively disposed towards reserved seats for women. Gandhi’s fast against granting special electorates to the Depressed Classes on 20 September 1932 following the announcement of the Ramsay MacDonald Award a month before, which was described as his fast ‘against untouchability’, was not just widely reported in the journal of the WIA Stree Dharma but broke their own demand for reserved seats and nominations. Right up to Gandhi’s fast, the WIA maintained that although universal adult franchise was the real answer, for a transition period it suggests the reservation of 20 percent of the seats in the new and enlarged legislatures and proposes that they be voted for by proportional representation by the newly elected members of Council from a panel of names sent forward by the officially recognized associations of women (cited in Forbes 1979: 14). But once Gandhi’s fast began, ‘this was the last time such a possibility [by the WIA] was entertained’. This meant that women’s self-sacrifice of their interests, as proof of their commitment to Gandhi, was achieved by a less visible denial – the political rights to representation of the ‘Untouchables’

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or ‘Depressed Classes’. Indeed, it is hard to say to what extent women’s groups were aware just how such political rights were in fact being articulated, and especially of Ambedkar’s own demands and representations to the British. By 1930, Ambedkar stated that the depressed people whom he represented needed political power, which could only be gained within the framework of an independent India. His demand at the First Round Table Conference was for a unitary state, adult suffrage and reserved seats and special safeguards for untouchables. Historians of the Dalit movement like Gail Omvedt have asked themselves why, of all things, the Second Conference and the Ramsay MacDonald Award of separate electorates should have developed specifically into Gandhi’s opposition to Ambedkar, and not to the other minorities, the federal power accorded to the princely states or, for that matter, to any of the other interest groups – landlords, commerce and industry, universities and labour – who were all granted special representative rights under the terms of the Award. ‘Of all the participants in the first conference, Ambedkar’s position (adult suffrage and reserved seats) was actually closest to the nationalist one’ (Omvedt 1994: 169). ‘Those who speak of political rights of untouchables do not know how Indian society is constructed’, Gandhi declared to the Minorities Committee. ‘So far as Hinduism is concerned, separate electorates would simply vivisect and disrupt it’ (Sitaramayya 1935: 909). Indeed, Gandhi went on, it would be preferable if the Untouchables converted to Islam or Christianity. An adequate answer for Gandhi’s exclusive confrontation with Ambedkar must therefore account for the unique constructions of the ‘Hindu’, not just for explicitly Hindu organizations but within the Congress itself. A complex mix of the politics of numbers which required proof of the numerical supremacy of Hindus at any cost; an inability to look upon untouchability as anything more than a social problem, a ‘blight’ that upper castes must purify; and Gandhi’s own reconception of Hinduism and reformed caste relations as an ‘indivisible family’, one for which he was ready to lay down his life – all of these might go some way towards recognizing why the politics of caste was so especially threatening. In any event, after a four-day fast, a compromise had to be reached, and the Poona Pact was signed, involving a two-tier system of voting between untouchables and a general electorate. It is quite true that principal opposition to the Communal Award on the part of women’s organizations was to granting separate electorates on religious grounds (which was not Gandhi’s problem). On matters of caste and untouchability, members of women’s organizations showed, at best, limited acknowledgement but little understanding. In her Note to the Second Franchise Committee on the eve of the Communal Award in 1932, Radhabai Subbaroyan (who had earlier been in favour of reserved

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seats for women) made special mention of the problem of the Depressed Classes. In her view, the practice of untouchability was now steadily diminishing thanks to education and reform. Therefore, while she was in ‘favour of these classes having representation, this could be secured by methods which will accelerate their absorption into the mass of the population rather than separation’. She added further that more women electors from the Depressed Classes should be included: ‘The mistake made in other communities by allowing one sided progress only amongst men, should be avoided’ (IFC, Vol. 1: 201). In his response, Ambedkar emphasized that it would be a mistake to think that untouchability was vanishing – it continued to live on, notionally if not literally, and would continue to do so until its basis in the ‘steel frame’ of Hindu religion was eradicated. Since the British term ‘Depressed Classes’ did not capture their untouchable status as ‘unfit for social intercourse’, a better term might be the ‘exterior’ or ‘excluded’ castes. Whatever special interest groups (such as women or labour) ought to be included in the terms of the Award, this should not be at the expense of the proportion of seats being demanded by the Depressed Classes, he also added. Such occasional and partial recognition notwithstanding, the actual directions taken by women’s organizations as early as 1933 had severe repercussions for issues of caste. In the AIWC meeting of 1933 in Madras they agreed, in spite of some opposition, to a resolution to remove all special schools based on religion or caste, as well as any mention of caste in application forms – this, in a region known for the efforts of the non-Brahmin movement to provide concessions to under-represented groups (Sinha 2000: 243). Questions about how many depressed class women were part of the organization were evaded, and the term itself was removed from the AIWC Constitution, all in the name of abstract equality. Historians of the Dalit movement Meenakshi Moon and Urmila Pawar have provided extended accounts of Dalit women’s participation in Ambedkar’s movement. But there are no records of common platforms with the major women’s organizations. By 1936, in the wake of the Government of India Act of 1935 with separate electorates and reserved seats, Dalit women’s organizations in the Central Provinces demanded that one of the three legislative seats for women be reserved for ‘a woman from the untouchable community’ (Moon and Pawar 2008: 137). If Ambedkar did not wish to jeopardize the fragile conditions of Dalit enfranchisement by bringing in further conditionalities to include women, there are no signs that this idea of a sub-quota within the seats reserved for women found any takers from women’s organizations. The only reference to the AIWC in the Pawar and Moon account of Dalit women’s political participation is to an incident of discrimination, when a Hindu member at an AIWC meeting in Nagpur in 1938 arranged

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separate seating for the Dalit delegates at mealtime (139). Such incidents apart, adherence to formal equality was already producing outcomes that marked women’s organizations as effectively upper caste. By 1935, when the Government of India Act was finalized, the distinct careers of the notion of the depressed classes (which continued to be the preferred term of the British), political concepts of ‘backwardness’ which were evolving in Mysore and Madras and the pivotal question of ‘untouchability’ as a unique disability and form of social exclusion came together when the need to draw up a ‘Schedule’ or list of castes was required for ‘special’ electoral representation. As a number of commentators have pointed out, the selection of the ‘Scheduled Castes’, as they came to be called, proceeded without the benefit of a connotative definition, since no single criterion could be found that worked for the whole country. Even though leaders like Ambedkar kept the focus of untouchability on those who suffer exclusion at the hands of other Hindu castes, questions of economic backwardness and lack of education were also drawn upon, especially for regions of the north and east (Galanter 1984). By the time the Constitution was ratified in 1950, the principle that was applied came to rest on groups which had historically suffered both hostile discrimination and disadvantage and for whom three kinds of preference were envisaged: special electoral representation in the legislatures, preferential employment and preferential treatment. (Interestingly enough, the listing from 1935 was to remain more or less stable in the post-Independence period, with only minor additions after that.) After the ratification of the Schedules for specific castes and tribes in the Constitution, the numerous pre-independence struggles and coalitions in the names of the ‘Backward classes or communities’, ‘Non-Brahmins’, ‘depressed classes’ and so on underwent a major change, to re-emerge as the Other Backward Classes (OBCs) in the language of the state. As the name suggests, this was a residual category, meant to designate those groups (apart from the Scheduled Castes and Scheduled Tribes) who were nevertheless deemed to be in need of special treatment.

The constitutional resolution of the women’s question In comparison to the trajectories of the political rights of minorities, backward classes and the ‘untouchables’, the direction taken by women’s rights from the 1930s to 1950 was significantly different. We have already seen how the Communal Award not only fundamentally affected women’s organizations’ understanding of caste and communalism but stiffened the resolve of many to hold onto ‘equal rights’ in spite of the costs. In the years leading up to and following the Government of India Act of 1935,

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women’s organizations were successively betrayed. The first to do so were the British, who refused to provide any declaration of fundamental rights or non-discrimination on the basis of sex for holding public office in the 1935 Act. Some modifications were made regarding qualifications for voting in different provinces (wifehood remaining primary), which expanded male and female electorates to 43 percent and 9 percent respectively. Fortyone reserved seats for women were allocated. In the next elections of 1937, a total of 56 women candidates entered the legislatures, out of which only ten came from general seats and five were nominations. Women’s organizations therefore felt specifically betrayed by the Congress: If it was Gandhi who had been the most vociferous advocate against reserved seats for women, the Congress now had little room for any women candidates other than those who were staunch party workers in any case. Finally, for all their efforts to enlarge the number of women voters, ‘there was no necessary corollary between the politicization of women and the actual advancement of their cause’ (Nair 1996: 140). Eleven women were nominated to the Constituent Assembly to participate in its deliberations on the ultimate finalization of the Constitution. According to Vina Mazumdar, there is little doubt that it was the willing and spontaneous participation of women in the civil disobedience movements rather than the radical ideas of sexual equality that finally tilted the balance in favour of political equality between the sexes in the Congress Party and later in the Constituent Assembly (1979: xvi). As she notes, the ‘Constitution fathers’ never debated the issue, nor did they realize the social and political implications of what they were granting. Partha Chatterjee, as we have seen, argued that the question was settled much earlier, on the grounds of ‘cultural’ not ‘political’ nationalism, which enabled middle-class ‘modern’ women’s entry into the public sphere by domesticating the nationalist project within the home. I have been suggesting that the issue of women’s rights was both more complex and more significant than either of these two views indicate. Conflicts over the relationship between ‘social’ issues and the abstract universal language of political rights ‘irrespective of caste, creed, race or sex’ took concrete form in the protracted problem of reserved seats. Women’s organizations were caught in contradictory proclamations of the ‘unity of all women’, the sameness of their condition, and so on, even as they effectively ‘reserved’ for themselves – urban, educated, modern and progressive – the right to represent Indian womanhood. They aspired to unity in the name of a collectivity of women that would not be divided by community affiliation. These claims had to be maintained, however, in the face of the loss of Muslim women’s membership and the effective negation of distinct political rights to the ‘untouchables’. The period of political nationalism

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thus saw multifaceted processes of avowal and disavowal – the celebration of a convoluted femininity by Gandhi, the claim to representativeness by dominant women’s organizations and the emergence of women as model bearers of political unity and universal citizenship, all of which were consolidated through definitive if not always explicitly understood processes of exclusion. The Constituent Assembly was not the place, however, where women members discussed these contradictions. On the contrary, they appeared eager to declare their opposition to any special privileges in the form of reservations. Thus Renuka Ray, for instance, referred to the Government of India Act of 1935, where ‘the social backwardness of women had been sought to be exploited in the same manner as the backwardness of so many sections in this country by those who wanted to deny its freedom’ (CAD 1947: 668). Reservations prevented women from standing from general constituencies and constituted ‘an impediment to our growth and an insult to our very intelligence and capacity’ (CAD 1947: 669). It is worth noting that this intervention took place ‘spontaneously’, so to say, in the context of a discussion over requests for the modification of territorial representation for the remote and sparsely populated hill tribes of Assam. Vallabhai Patel took full advantage of the situation, regretting, as he put it, that men had not yet come up to the standard of women: ‘Let us hope that nothing will be provided in this Constitution which would make exception in favour of men [in a situation] where women object [to similar exceptions being made in their favour]’ (CAD 1947: 674). It is well known that women participated, and often in large numbers, in those strands of the national movement and in other movements that placed them in opposition to the British. At many moments in the nationalist movement itself engagement with colonial processes of political devolution was seen as nothing less than co-option and a deflection from swaraj. Gandhi himself viewed women’s political role within the frames of non-cooperation and openly opposed women’s active interest in obtaining voting rights and pursuing social reform with the colonial state. But even those members within women’s organizations who were inspired Gandhians chose not to agree with him here. Rather they struggled over women’s rights and social reform by placing extraordinary weight on the mechanisms made available by the colonial state, in spite of all the distortions and compromises they encountered. They opposed reserved seats because it was viewed as a betrayal of their aims for political unity, not because they did not wish to be included as participants within the legislative process. How then did matters stand when a new generation took up women’s issues in the vastly altered decades of the 1970s?

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After Independence: Towards Equality and the politics of autonomy When the government-appointed Committee on the Status of Women in India were asked to look into the condition of women across all dimensions of life, the question of women’s political rights appears to have been one of the more difficult issues they tackled. The chapter on political status is amongst the shortest in the entire report and one that comes quite late in the order of themes and issues – being preceded by chapters on demography, society and culture, the law, economic participation and educational development. Was this an indication of some uncertainty on the part of the Committee, or at least a view that this aspect of women’s status could only come into its own when social, economic, legal and educational rights have been given their due? The chapter spoke of ‘regressions from the time of the freedom movement’ and a sense of disillusionment among the women they met. ‘Though women do not numerically constitute a minority, they are beginning to acquire the features of one’ (Towards Equality Report 1974) and one of the reasons lay in their low levels of participation in the political process, especially as electoral candidates. Interestingly, this was the only chapter that openly acknowledged different stances among its members, and their disagreement centred on the question of reservations for women. Even though the idea of reservations emerged as a demand from among many of the women they met to solicit their views, the position taken in the recommendations declared that reservations would be a ‘retrograde step’ from the equality conferred by the Constitution. Such a move would narrow women’s outlook, isolate them from men, fallaciously segregate their political interests from their economic, social and other needs, precipitate similar demands from other groups and so threaten national integration. In a now famous formulation, women cannot be treated like a minority group – ‘women are not a community, they are a category’ (pp. 303–304). There are strong echoes here of the positions taken by their preIndependence sisters, even though the moment could not be more different – three decades of independence under liberal democracy with universal adult franchise. It is therefore all the more remarkable to listen to those who openly opposed this view, to the point of wishing to put it on record. In their Note of Dissent, Vina Mazumdar and Lotika Sarkar begin by openly acknowledging the source of their generation’s discomfort with reservations – its association with caste. ‘Reservations for the Scheduled Castes and Scheduled Tribes were nothing less than a colonial legacy that would institutionalize India’s backwardness’. It is not entirely clear as to why and how their understanding changed, especially when this

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conception was shared by so many, including the small number of elected women whom they interacted with. Perhaps a major push came from their critical appraisal of these women politicians, in terms of both their narrow and elite class base and their lack of awareness about women’s issues. Far from creating isolated pockets, reservations would bring in, Mazumdar and Sarkar believed, a broader and more diverse group of women (as was the case among men) with a better chance of representing women and their causes. Somewhere along the way they registered the principle that ‘the application of the theoretical principle of equality in the context of unequal situations only intensifies inequalities’. Towards Equality was produced in 1974 at a time of unprecedented social and political mobilization across the country. By 1975 Prime Minister Indira Gandhi had imposed a National State of Emergency that forced many groups to go underground but also imprisoned many more, including women who were politically active in a range of struggles and political formations. It is not accidental that new women’s groups were formed in the wake of the lifting of the Emergency in 1977, taking up issues that proclaimed the rise of a fresh phase of a women’s movement in India. In ways that have yet to be adequately analysed, this movement produced a new understanding of what it meant to be political as women, one that found its most frequent expression through the notion of autonomy. While the term has come to acquire many meanings over the years, such as autonomy from the state, from funding, especially from foreign sources, and the need for women-only organizational spaces, its critical early deployment emerged insrelation to political parties. One of the first new women’s organizations to be established during this period in 1974 was the Progressive Women’s Organization (POW) in Hyderabad with direct links to the CPI (ML), which suffered the direct repression of the Emergency. It is here that women members sought to reconstitute themselves afresh through the new language of autonomy once the Emergency was lifted (K. Lalita 2008). The point I am trying to make is not that such women ceased to identify with a left political orientation. Rather they sought new political definitions for themselves as women’s organizations that went beyond what Ilina Sen has called ‘a space within the struggle’ or prior assumptions of being at best ‘women’s wings’. This means that autonomy was not just a principle for those groups who did not wish to identify with existing political formations or parties but also for those who did have such links (see Omvedt 1994). The reason to dwell on the question of autonomy in this discussion is to indicate how remote the domain of electoral politics was to this fresh upsurge of the political in the 1970s and 1980s. The idea of reservations within the parliamentary system is therefore quite simply nowhere on the horizon. Even in terms of priorities, left-identified women’s groups were

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engaging in mass based work in rural and urban areas and not preparing possible candidates for a career in electoral politics. When Nandita Gandhi and Nandita Shah reflect on problems of autonomy and organizational politics among the new women’s groups during the 1970s and 1980s, whether identified with left politics or not, their discussions cover all manner of issues ranging from organizational structures and modes of leadership to styles of functioning and financial support (even considering the past role of business houses). But the question of entering the electoral process is not even considered, let alone the possibility of reservations for women. Critiques of national development and of violence that were so central to this phase of feminism in India (which will be discussed in the next chapters) certainly involved a protracted and direct engagement with the state but did not lead to demands to inhabit the state from within through election into its legislative structures. While positions and agendas differed across groups, this was not a time therefore when the kinds of arguments put forward by Vina Mazumdar and Lotika Sarkar in their Note of Dissent had any significant takers in the women’s movement. In other words, the time frame that I have been designating as the national episteme was one where the Note of Dissent constituted a genuine outlier – the era of development saw little feminist investment in the idea of their electoral presence. What changed in the intervening decades such that, hot on the heels of the 73rd and 74th Constitutional Amendments in early 1993 that brought one-third reservations for women in local rural and urban bodies, a similar demand was raised at the state and national levels by 1996? Nivedita Menon has persuasively shown that while there has definitely been a shift in the trajectory of the women’s movement, such that women have emerged as a significant force in Indian politics, this alone cannot account for the degree of support that the new call for reserving one-third of all seats in Parliament and the state legislatures for women was now receiving. The feminist stance in favour of such reservations has tied in with a very different development – an upper-caste unease with if not opposition to the rise of backward caste parties in the last decades, who have visibly altered the composition of parliament and the nature of electoral politics (Menon 2000).

The post-national conflict between gender and caste It is actually not immediately obvious as to how, in the climate of the 1990s that I have called post-national, a more visible women’s movement should, for the first time in its entire history, have become more supportive of reservations in politics. One answer would lie in the larger rethinking about reservations that emerged after the anti-Mandal agitations of 1990, when the move to implement reservations for OBCs in government service produced

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a violent backlash on the part of large sections of the middle classes, who protested in the language of equality and merit. For significant sections of the women’s movement (and many other movements) this was a difficult moment that demanded fundamental interrogations of their own assumptions about formal equality and the consequent invisibilization of caste. New solidarities with Dalit mobilization were to develop in different parts of the country. It is indeed a curious fact that although Mandal was all about OBCs this moment has been overwhelmingly linked with sensitization to questions of caste in the form of the state of play of reservations (especially in higher education) for the Scheduled Castes and Scheduled Tribes. But these were also the very years when the state itself was undergoing unprecedented transformations. For a movement that had been born in the mode of critique and protest over the failures of the developmental state and its Constitutional claims to equality, the new economic policies of the 1990s and rise of aggressively communal political parties with hegemonic aspirations to creating Hindu Rashtra heralded a state formation that was to all intents and purposes even less amenable, if not hostile to feminist ideals. Why then would a movement wish to jeopardize its principles of autonomy at such a juncture by supporting women’s entry into the political process via reservations? The question should probably be posed from the other side. Though not often explicitly stated, it is precisely at such a time that some sections of the movement were more open to rethinking autonomy in relation to institutions, including political parties and the institutions of the state. It is not accidental, therefore, that this was during the 1990s when the Note of Dissent penned by Vina Mazumdar and Lotika Sarkar two decades earlier was to gain a fresh audience, and not only from those with closer links to left political parties but from many more who were drawn into the new discourses and practices of governance. This complex moment becomes all the more remarkable when one recalls the form that the opposition to reservations for women took from 1996 onwards. Right from when it was first tabled, the main opposition to reservations for women in Parliament was expressed in terms of sub-quotas for women from the OBCs and Muslims and additional quotas for Dalit women. OBC leaders put forth the argument that a blanket reservation policy in favour of women would bring in privileged, upper-caste women, thus effectively reducing the number of OBC seats – hence the need for sub-quotas. In other words, despite misleading media images, there was not a simple opposition between feminist support and patriarchal opposition. Vocal political dissent invoked the interests of already disadvantaged castes and communities; opposition to reservations for women as such emerged from prominent individuals – both men and women, notably from within the media and corporate world. As Nivedita Menon pointed out, the

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reference of the Samajwadi Party leader Sharad Yadav’s to the ‘short-haired women’ who would take over Parliament is indeed a misogynist and sexist stereotype, but this neither detracts from the argument behind it nor carries any implication that ‘all support for women’s reservations comes from those who context and reject such stereotypes’ (Menon 2000: 166). Indeed, I would also add that the media’s eagerness to demonize backward-caste and Muslim politicians who opposed the Bill also obscured the unspoken patriarchies at work in every political party. There is no other way to explain the low presence of women candidates among political parties in favour of women’s reservations in all the national and state elections since 1996. Compare the turnaround among sections of feminists from the language of formal equality and abstract citizenship, with the trajectories of castebased reservations after Independence. The special case of the Scheduled Castes and Scheduled Tribes – for whom reservations in higher education, government services and legislatures became part of the Constitutional mandate – was treated as an exception to the fundamental right to equality. It must not be forgotten that the actual form that reservations through quotas took represented a loss for Dalit leaders like Ambedkar, who had campaigned for a form of ‘power sharing’ in the nation. As already alluded to, the special electorates whereby Dalits as a group would be able to elect their own leaders in proportion to their population had to be modified after the Poona Pact. Moreover, as Anand Teltumbde has pointed out, the Constitution did not sufficiently acknowledge the substantive forms of discrimination and disenfranchisement that these groups experienced over history, relying instead on the language of their ‘backwardness’ (2010: 13). Meanwhile, the residual category of the OBCs, comprising all the so-called lower castes who were ‘socially and educationally backward’, was also constitutionally notified, but left to the respective states for further action. It is from amongst these castes that a new class of political leaders emerged, first in southern India where anti-Brahman movements had a long history and by the 1970s across north India as well. Drawing upon their rural dominance to gain entry into electoral politics, these castes clearly changed the composition of Parliament significantly and diminished the prior hold of upper castes in the political sphere. Since the 1990s, OBCs also gained new forms of reservations – first in government service and more recently in higher education, often referred to as Mandal I and Mandal II. As already mentioned, there was never any opposition to the passing of the 73rd and 74th Constitutional Amendments, which brought one-third women into local self-government (with primary attention to the village panchayats and less interest in the municipal corporations). Since 2004 the proportion of seats reserved for women at the local levels has been further raised to 50 percent. One way of interpreting this consensus at the lowest

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level of decentralization would be that it could be accommodated within the larger project of ‘good governance’ in the neo-liberal era; women’s participation at this bottom tier of the political process was therefore widely perceived not so much as political as welfarist. Even though there are plenty of accounts of the kind of local political forces that elected women in the panchayats have had to contend with and of the differential role of political parties, the larger frame remains that of development. Stalwarts of the autonomous women’s movement like Nandita Gandhi and Nandita Shah, reflecting on the experience of reservations at the local level in the state of Maharashtra in 1999, were able to overcome their misgivings about the possible co-option of the women’s movement through local electoral politics by pointing to its democratic potential – but they are among those who nonetheless concluded that its extension to the state or national levels should wait (Gandhi and Shah 2008). But others, as we have noted, saw a new need to address the low presence of women in India’s legislatures – so much so that in place of the language and frames of formal equality and an opposition to special rights, there were now unprecedented references to patriarchy as a structure of oppression and exclusion. In spite of different positions in relation to the actual mechanisms required to improve women’s participation in the electoral process, including rejections of the existing Bill in favour of alternatives, there has been widespread endorsement of the untenability of the present situation. On the other hand, why has the demand for sub-quotas, with a few exceptions, been largely rejected? What does this imply about the category of ‘women’ in India today? It is tempting to compare this situation with that in other countries, given the global concern over women’s low political presence. One might look at the trajectory taken by the movement for parity in France in the 1990s, where the pro-parity position took the form of arguing that parity was emphatically not a quota but an acknowledgement of the universal nature of the division of the sexes. Parity for women was thus contrasted to ‘other’ kinds of quotas based on race, ethnicity, class, immigration status and so on. The work of Anne Philips on the ‘politics of presence’ has also been drawn upon. In her critique of the arguments of Anne Philips, Menon sees a problem in Philips’s very distinction between a politics of presence and a politics of ideas and with her argument that women’s political presence should not require any justification (such as representing women as a group) other than their presence in society. According to Menon, this leads to the untenable position of treating women as a pre-political, natural category. Rather, women are not a neutral category – there are not ‘women’ who might be right wing or left wing, white or black – there are people who may respond to different kinds of political mobilization, as ‘white’, ‘left wing’ or ‘women’ (Menon 2008:

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176). Creating the category of ‘women’ is therefore the goal of a feminist politics. The question, then, becomes, are those in favour of reservations for women in contemporary India making similar arguments about the natural status of women as a category? I think Menon’s argument that there are only ‘people’ who respond to different kinds of mobilization in different contexts needs to be rearticulated somewhat differently. After all, we are dealing with a moment in the 1990s when reservations emerged as a response to a new perception of the unacceptability of women’s marginality from politics. Furthermore, it is only in liberal theory that there are ‘people’; socially it is men who are ‘people’ while women’s subordination includes being named as women, if in multiple and even contradictory ways. Similarly, it is upper castes in contemporary India who get to be casteless, while lower castes and Dalits are consumed by their caste identity. This is why gender, caste, race and the like are not internally composed of symmetrical categories but work through profoundly asymmetrical forms of identification. It is for a feminist politics to expose the social mechanisms of these unequal and interlocking structures at specific historical moments. What is definitely true is that there is no natural link between such social mechanisms and their politicization, between, say, women in all their multiplicity in the world and women in all their political potential. This is why it is so crucial to track with some care this specific moment in the history of the women’s movement when reservations for women have been welcomed by so many. There is little doubt that much of the new non-feminist support for a blanket reservation for women comes from a readiness to see the caste composition altered away from its current lower caste (male) preponderance. But what is harder to fathom is the seeming intransigence of many progressive and feminist groups in coming to grips with the interlocking nature of hierarchy and its patriarchal consequences. Rather than see the problem as one of working with a pre-political understanding of women, it appears more as one of working with a uniform and selective notion of patriarchy and its exclusions. There is the further problem of inconsistency even in the deployment of patriarchy. Thus, for instance, OBC male leaders have been blamed, over and over again, for not fielding more women candidates. This is why their demand for subquotas should be dismissed and only treated as a ploy. Such an argument is inconsistent for at least two reasons. First of all, since no political parties have been fielding more women candidates it is unclear why OBC men should be singled out here. Secondly, it can be argued that patriarchies are diverse and, indeed, unequal. OBC women are particularly trapped within low levels of education, the absence of property rights, especially in land, and powerful ideologies of domesticity. Are these not sufficient reason to

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struggle not just on their behalf but for their greater political presence? In other words, a plausible feminist argument could well be made for the need for sub-quotas for OBC women, but these have been few and far between (Menon 2000; Raman 1999; Omvedt 1994). The absence of OBC women from this debate has also been noteworthy, with the exception of rare figures like Uma Bharti from the BJP, who in 1996 was willing to question her party BJP’s own position against sub-quotas, though she spoke up only for OBCs not for Muslims. Missing therefore has been a larger political understanding of the inequalities of caste and community that continue to divide all social groups, including women themselves. As recently as 2010 when the bill made it as far as the Rajya Sabha, women leaders – including an otherwise reticent Sonia Gandhi – were quite articulate when describing the various ‘excuses’ used by all political parties to marginalize women and clearly outlined the structural features of the electoral process that conspire to consign most women to the ‘unwinnable’ category. Why, then, are the same women unable to see that caste and community will play a central role in shaping the profile of the ‘winnable’ woman candidate of the future? This is largely because existing modes of thinking appear to be shaped by the political fortunes of men of different communities and castes rather than an appreciation of the effects of unequal patriarchies. So if OBC men have muscled their way into politics, so can their women. It is important to tease apart the OBC case because it has proved particularly sticky. There is no question that OBC men have entered parliament in sufficient numbers without the need for reservations, much to the consternation of others. However, the whole point is that a system of reservations for women (however it may be designed) is going to witness an unprecedented situation of a vast increase in the number of women candidates. A frequent argument has been that once such a blanket reservation is in place, OBC men can field OBC women wherever seats are now reserved for women. There is no allowance for the altered dynamics of a situation in which new women are going to be fielded and that, too, against each other. More tellingly, it is evident from the location of the speaker that he or she has no particular interest in expanding OBC women’s political presence. The fortunes of OBC women are thus consigned to political expediency and not recognized as being an excluded group in their own right. Because the fortunes of women continue to be tied to those of their men, it is only in the case of Muslims that there has been a very belated recognition in some quarters such as the CPM of the declining status of the Muslim community over the decades and their low representation in politics. However, even though ‘women’s reservation in its present form may or may not increase the participation of Muslim women in legislatures’,

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this is still not seen as a sufficient reason to oppose the existing form of the women’s reservation bill. Instead, ‘a broad-based consensus in favour of the women’s reservation bill today can only facilitate a similar agreement on Muslim reservations tomorrow. And when that happens, thirtythree percent of those seats will also get reserved for Muslim women’ (Bose 2010: 11; see also Hussain 2010). It is also noteworthy that in the prominent alternatives to the present bill, the question of the need for sub-quotas is seen as redundant. In the alternative bill proposed by Madhu Kishwar et al, political parties are to be forced by the Election Commission to put up one-third candidates of women (rather than by reserving constituencies for them). Critics have been quick to point out that this method is both undemocratic in the role being granted to the Election Commission, and is further not likely to yield significant results as women can be fielded in weak constituencies. It is up to such parties to decide where and whether they wish to nominate OBC, minority or other women in particular constituencies ‘depending on electoral advantage’. This means that should there be no electoral advantage then no such women would presumably be nominated. In another alternative proposing double member constituencies (one woman and one man), once again any further considerations are seen as unnecessary (Kishwar 2008).

Concluding remarks Unlike in the pre-Independence era, therefore, when leaders of the women’s movement contrasted the stance of a united womanhood against the claims of caste and minority groups by opposing reservations as a whole, today we are seeing a new stance in favour of reservations for women. But this is being accompanied by a marked opposition to opening up this category through sub-quotas for OBCs or Muslims. In a strange sense, then, a complete turnaround on the question of reservations for women has nonetheless refigured caste and community identities as a problem. According to one particularly pessimistic commentator, Anand Teltumbde, the failure of quotas for the Scheduled Castes and Tribes to produce an effective Dalit or Adivasi voice in the Indian Parliament has not been sufficiently noted in the first place. In place of Ambedkar’s desire for separate electorates, the existing system has only yielded candidates under the control of their respective parties. He believes that much the same will happen with a quota for women – that in the present era of coalition politics, large parties will seek to field women in considerable number in a ‘feudal’ mode so as to retain greater hold on the elected population. This is why smaller parties of the Dalit and backward castes fear that such reservations will erode their base.

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Those who are less pessimistic about the final outcome of a reservations policy for women must ask themselves what precisely would be historic about bringing a critical mass of women into electoral politics. Popular expectations about women bringing in a ‘cleaner’ government untouched by male power and pelf – or about women’s interests being better represented by women – may well remain unfulfilled. But in the final analysis, if we go back to the original vision of leaders like B. R. Ambedkar, what is at stake is nothing less than power sharing and participation at all levels of the electoral process. The women’s movement may have moved considerably from its prior opposition to the idea of reservations, but it remains to be seen how open its claims upon the political can yet become to the inequality of patriarchies.

Note 1 There are a number of studies that dwell on different phases in the development of women’s organizations and their battle for the franchise. These include Everett (1979), Forbes (1979, 1996), Chaudhuri (1993), Kumar (1993), Nair (1996), Pearson (1989) and Sinha (1999).

Bibliography All India Women’s Conference (AIWC) collected papers of various years (1930, 1932–33, 1933–34, 1934–35), AIWC library, New Delhi. Basu, Aparna and Bharti Ray. 2003. Women’s Struggle: A History of the All India Women’s Conference, 1927–2002. New Delhi: Manohar. Bose, Prasenjit. 2010. ‘Women’s Reservation in Legislatures: A Defence’, Economic and Political Weekly, 45(14): 10–12. CAD. 1950. Constituent Assembly Debates: Official Report, New Delhi: Government of India. Chaudhuri, Maitrayee. 1993. Indian Women’s Movement: Reform and Revival. New Delhi: Radiant. Chatterjee, Partha. 1994. The Nation and Its Fragments: Colonial and Postcolonial Histories. New Delhi: Oxford University Press. Everett, Jana M. 1979. Women and Social Change in India. New York: St. Martin’s Press. Forbes, Geraldine. 1979. ‘Votes for Women: The Demand for Women’s Franchise in India, 1917–1937’, in Vina Mazumdar (ed.), Symbols of Power: Studies on the Political Status of Women in India (Women in a Changing Society I), pp. 3–23. Bombay: Allied Publishers. Forbes, Geraldine. 1996. Women in Modern India. Cambridge: Cambridge University Press. Forbes, Geraldine. 2002. ‘Women of Character, Grit and Courage: The Reservation Debate in Historical Perspective’, in Lotika Sarkar, Kumud Sharma,

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and Leela Kasturi (eds.), Between Tradition, Counter Tradition and Heresy: Contributions in Honour of Vina Mazumdar, pp. 221–239. New Delhi: Rainbow Publications. Galanter, Marc, 1984. Competing Equalities. Delhi: Oxford University Press. Gandhi, Nandita and Nandita Shah. 2008. ‘The Quota Question: Women and Electoral Seats’, reprinted in Meena Dhanda (ed.), Reservations for Women, pp. 61–80. New Delhi: Women Unlimited. Hussain, Sabiha. 2010. ‘Doubly Deprived’, Frontline, 27: 7. John, Mary E. 2000. ‘Alternate Modernities? Reservations and the Women’s Movement in Twentieth Century India’, Economic and Political Weekly, 35(43–44): 3822–3829. John, Mary E. 2014. ‘Feminist Concepts in Time and Space: Perspectives from India’, Economic and Political Weekly, 49(22): 121–131. Kishwar, Madhu. 2008. Women and Politics: Beyond Quotas. Reprinted in Meena Dhada (ed.) Reservations for Women. New Delhi: Women Unlimited. Kumar, Radha. 1993. Women’s Movement and Feminism in India, 1800-1990. New Delhi: Kali for Women. Lalita, K. 2008. ‘Women in Revolt: A Historical Analysis of the Progressive Organisation of Women in Andhra Pradesh’, in Mary E. John (ed.), Women’s Studies in India: A Reader, pp. 32–42. New Delhi: Penguin. Mazumdar, Vina. 1979. ‘Editor’s Note’, in Symbols of Power: Studies on the Political Status of Women in India (Women in a Changing Society I). Bombay: Allied Publishers. Menon, Nivedita. 2008/2000. ‘Elusive “Woman”: Feminism and the Women’s Reservation Bill’, Economic and Political Weekly, 35(43–44): 3835–3839, 3841–3844, reprinted in Meena Dhanda (ed.), Reservations for Women, pp. 158–186. New Delhi: Women Unlimited. Moon, Meenakshi and Pawar, Urmilla. 1989. ‘Women in the Early Untouchable Liberation Movement’, South Asia Bulletin, 9(2): 68–71. Nair, Janaki. 1996. Women and Law in Colonial India: A Social History. New Delhi: Kali for Women. Omvedt, Gail. 1994. Dalits and the Democratic Revolution: Dr. Ambedkar and the Dalit Movement in Colonial India. New Delhi and London: Sage Publications. Pandey, Gyanendra. 1990. The Construction of Communalism in Colonial North India. New Delhi: Oxford University Press. Pearson, Gail. 1989. ‘Reserved Seats: Women and the Vote in Bombay’, in J. Krishnamurthy (ed.), Women in Colonial India: Essays on Survival, Work and the State, pp. 199–217. New Delhi: Oxford University Press. Raman, Vasanthi. 1999. ‘Women’s Reservations and Democratization: An Alternative View’, Economic and Political Weekly, 34(50): 3494–3495. Reddy, Muthulakshmi. 1930. My Experiences as a Legislator. Madras: Current Thought Press. Reddy, Muthulakshmi (ed.). 1956. Mrs. Margaret Cousins and Her Work in India: With a Brief Sketch of her Colleagues and Comrades. Madras: Women’s Indian Association.

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Reddy, Muthulakshmi. 1964. Autobiography of Dr. (Mrs.) S. Muthulakshmi Reddy (A Pioneer Woman Legislator. Madras: M. L. J. Press. Sinha, Mrinalini. 1999. ‘Suffragism and Internationalism: The Enfranchisement of British and Indian Women under an Imperial State’, The Indian Economic and Social History Review, 36(4): 461–484. Sinha, Mrinalini. 2000. ‘Refashioning Mother India: Feminism and Nationalism in Late-Colonial India’, Feminist Studies, 26(3): 623–644. Sitaramayya, Pattabhai B. 1935. The History of the Indian National Congress Vol. 1.(1835–1935). Allahabad: Working Committee of Congress on Occasion of Fiftieth Anniversary. Teltumbde, Anand. 2010. ‘One More Reservation’, Economic and Political Weekly, 45(14): 13–15. Towards Equality Report. 1974. Committee on the Status of Women in India, India: Ministry of Education and Social Welfare, Department of Social Welfare.

10 The triple talaq controversy Gender concerns and minority safeguards Flavia Agnes

This chapter is framed within the contours of intersectionality of gender and community and examines how this formulation was played out in the recent campaign to abolish arbitrary and instant triple talaq, which culminated in the widely acclaimed Constitutional Bench ruling of the Supreme Court. Written at a critical juncture when the Supreme Court verdict was awaited, it captures the trajectory of the debate, explains its multiple constituents and analyses the various strands of the arguments presented before the Apex Court. By placing legal developments against the political backdrop, the chapter attempts to address the overlaps between gender, community and law. The Muslim woman is framed as a victim devoid of rights, disregarding the gains secured through various court judgements, both by the media and by some Muslim women’s groups. Placing this campaign against the rising wave of Hindu fundamentalism with its stated anti-Muslim agenda, the chapter highlights the need to secure the rights of Muslim women through nuanced and innovative strategies. A postscript has been added summarizing the complex and nuanced verdict of the Constitution Bench delivered on 22 August 2017.1 The three different views that emerged while invalidating instant and arbitrary triple talaq laid down that personal laws are an integral part of the freedom to practice religion guaranteed by Articles 25 and 26 of the Constitution.

Introduction Within a polarized environment, where ‘neutral, secular, liberal and progressive’ voices demanding justice for Muslim women are placed in opposition to the ‘bearded, misogynist and patriarchal’ Muslim clerics, it closes the space for Muslim women to express a nuanced view regarding the present controversy over triple talaq and enforces upon them an artificial

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identity question. B. S. Sherin, a research scholar of comparative literature in Hyderabad, articulates her concern: It is truly unfortunate that Muslim women’s identity is highlighted only in terms of personal laws, especially after the Shah Bano case. This overarching focus on personal law presents any improvement of Muslim women’s lives as contingent only on the reform of personal laws. By raising the question of personal laws and of community-binding, the larger implications of culture, class and region on the lives of Indian Muslim women are deferred. Muslim women themselves have come out in large numbers against the present campaign on Triple Talaq to say what is much more urgently needed is empowerment and education. But their voices do not receive larger audience. The recent appearance of articulate, practicing Muslim women challenging ‘progressive voices’ has been written off as ‘motivated by patriarchal forces’ or ‘indoctrinated’. (Sherin 2016) When and how did the issue of lack of rights of Muslim women under their personal laws come to the fore? Why did the media not publicize the gains secured by Muslim women through the process of litigation during the last three decades? Why is there an overemphasis on triple talaq today to the exclusion of all other gender concerns? Is gender a neutral terrain, which is disjunct from the contemporary political reality? Within a sharply polarized environment where gender is pitted against community rights and there are no easy solutions, what would be the most viable strategy to ensure dignity and offer protection to Muslim women and secure their economic rights? These are some critical issues which will be untangled as I explore the contentious issue of triple talaq. The recent developments are analysed against the populist grain by providing a historical context and clearing some misconceptions surrounding the rights of Muslim women under the Muslim personal law regime.

The tightrope walk The suo motu (on its own) reference to constitute a special bench to examine discriminatory practices of Muslim law such as polygamy and triple talaq was made by a two-judge bench comprising of justices Anil Dave2 and Arun Kumar Goel, in Prakash v Phulawati3 on 16 October, 2015 while deciding an appeal concerning the rights of a Hindu woman to ancestral property. In an unprecedented manner, responding to stray comments by an advocate present in court and relying upon some articles in the press, the judges made a reference to the Chief Justice to constitute a special bench to examine discriminatory practices which violate the fundamental rights of Muslim women. This came to be titled as Re: Muslim Women’s Quest for Equality.

The triple talaq controversy 275 Tagged along with this were several subsequent writ petitions/intervener applications by individual Muslim women, Muslim women’s organizations including the RSS affiliated Rashtrawadi Muslim Mahila Sangh, the All India Muslim Personal Law Board (AIMPLB)4 and other associate organizations such as the Jamiat Ulama-i-Hind, the All India Muslim Women’s Personal Law Board, etc. The Constitutional Bench headed by Chief Justice J. S. Khehar heard the arguments in this matter along with four other judges – Justices Kurien Joseph, U. U. Lalit, R. F. Nariman and Abdul Nazeer, during the summer vacation May 11–18, 2017. Appreciating the strategy of placing four minority community judges on a five-judge bench, Prof. Tahir Mahmood, an expert on Islamic law, has commented that such a move was needed since the unruly media debates had given the issue the colour of a majority–minority tussle (Mahmood 2017). In the same spirit, the bench also declined to examine polygamy and confined the arguments strictly to the question of whether instant triple talaq constitutes a core belief among Sunni Hanafi followers of Islam in India (Mahapatra 2017). The hearing aroused a great deal of public interest, as the packed courtroom even while the court was on summer vacation and the extensive reporting of the case each day indicate. This is not surprising considering that the issue had received wide media publicity since the time it first hit the news headlines around two years ago when at a press conference, the Bharatiya Muslim Mahila Andholan (BMMA) published a study of 4710 women and came out with the press statement that abolition of triple talaq and polygamy are the primary concerns of Muslim women, not just of those who took part in the survey but of Muslim women in India (Reyaz 2015). According to Abusaleh Shariff and Syed Khalid, the publicity that the issue received is next only to demonetization, which affected the majority of Indians, while the issue of triple talaq affected a miniscule minority of Muslims (Shariff and Khalid 2017). A recent survey conducted by the New Delhi-based Centre for Research and Debates in Development Policy (CRDDP) and relied upon by these authors states that out of 331 divorces from among women and men, about a quarter occurred through the intervention of religious institutions such as the qazi and darul qaza and only one respondent or 0.3 percent of the total group studied reported oral, instant ‘triple talaq in one go’.5 Commenting upon the manner in which this issue was used by the prime minister during the election campaign in Uttar Pradesh, the authors, relying upon the 2011 Census data, brought out the fact that the number of deserted Hindu women who live in deplorable conditions far exceeds the number of Muslim divorcees and deserted women. The numbers are staggering – out of 2.3 million separated and abandoned women, around 2 million are Hindus, while only 2.8 lakh are Muslims (Shariff and Khalid

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2017). And yet no attention is paid to them, even while the prime minister was lamenting the plight of Muslim divorcees. Drawing on the Census Report (2001), they pointed out that despite the hype, divorce among Muslims is much lower than in the majority community. However, they conceded that divorcees and deserted women face destitution, loss of rights and social stigma. However, it is not a unique problem of the Muslim community but a more pervasive social problem located within patriarchy. It needs to be emphasized here, as those who have campaigned for abolition of arbitrary triple talaq have repeatedly urged, that numbers are insignificant. Even if a few women are divorced in an arbitrary manner, it still constitutes violation of their fundamental rights. What is being opposed here is the right of a Muslim husband to use his power of divorce in an arbitrary manner against a defenceless woman and the lack of a corresponding right for the woman, which amounts to gender discrimination (Soman and Niaz 2016). However, giving the issue’s communal flavour, the then newly appointed Chief Minister of Uttar Pradesh, Yogi Adityanath, compared triple talaq to the disrobing of Draupadi (Aiyar 2017). Another of his cabinet colleague, Swami Prasad Maurya, commented that Muslims resort to talaq to keep ‘changing wives’ to ‘satisfy their lust’ and leave their wives to beg on the street, which aroused the wrath of members of the Muslim Women’s Personal Law Board, who demanded his resignation.6 The fact that this group has also been campaigning for abolition of triple talaq and has intervened in the Supreme Court reflects the tightrope walk Muslim women who are demanding a change in their personal laws are faced with when a right wing anti-Muslim government is in power. In this situation, the ideal solution would be, by adopting the policy of ‘reform from within’, for the Muslim Personal Law Board to come out with a clear statement that arbitrary and instant triple talaq is unquranic and hence invalid and that all divorces must only be through talaq-e-ahasan mode.7 This would help to send a clear message to the entire Muslim community. The Board’s refusal to come out with a clear statement has led to the current stalemate where the Supreme Court must now intervene and declare the law. The task is not easy, and as some lawyers commented during the hearing, it is like walking on a razor’s edge.

Can instant triple talaq be restrained through a clause in the nikahnama? queries the Chief Justice During the six-day marathon hearing, everyone – from the presiding judges on the bench to lawyers who thronged the packed court hall to reporters jostling to get an exclusive soundbite – learnt a great deal about the pristine

The triple talaq controversy 277 Muslim law – sahi Hadith to unauthentic Hadith and the grammar for determining it, which English translation of the Quran was authentic and the exact Quranic verses which dealt with the procedure for talaq. It was as though everyone was in a time warp, in seventh-century Arabia. The core concerns of modern Muslim women who are believers, the burqa-clad women with contemporary concerns, the marginalized and the middle class slipped through the crevices. As against the polarities between Sunni-Hanafi Ulama of the AIMPLB and the progressive Islamic scholars who battled it out to convince the bench of the accurate Islamic law was the modernist approach of the attorney general, Mukul Rohatgi. He argued that the only way gender justice can be secured was to enact a law and bring all talaq (not just triple talaq) under judicial scrutiny. He did not pause to reflect on the situation of Hindu women under a codified Hindu law, since that was not an issue before the court. A surprise was in store. At the end of the marathon discourse, the Chief Justice enquired, with Kapil Sibal representing the conservative AIMPLB, whether it was possible to include within the marriage contract (nikahnama) a clause stipulating that the husband shall not pronounce arbitrary triple talaq and directed the Board to file an affidavit to this effect.8 This helped to bring the debate to the contemporary and to highlight the progressive nature of a Muslim marriage which is conceived as a contract from its very inception. Hence conditions can be incorporated into the marriage deed to secure the rights of the woman, an unequal partner within the normative patriarchal marriage. This right is not available to a Hindu woman, as despite codification, Hindu marriages continue to be viewed as a sacrament with Brahminical rituals like vivaha homa,9 saptapadi10 and kanyadhan11 forming its core essentials.12 This was a welcome move for Majlis since our written submissions filed in court included the format of a standard nikahnama, which, we felt, can go a long way in securing the rights of Muslim women (Mandhani 2017).

The complex terrain of personal laws in India Before proceeding further, perhaps there is a need to explain the complex terrain of family laws in India. Within the framework of legal plurality prevailing in India, an optional civil law of marriage coexists harmoniously with religion-based family laws and customary practices. The aspiration to bring in a secular and uniform family law is articulated in Article 44 of the Constitution – ‘The State shall endeavour to enact a uniform civil code’ – which is merely a directive principle of state policy. As against this, there are two contesting claims which are enforceable and justiciable fundamental

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rights – gender equality and non-discrimination (Articles 14–15) and right to religious freedom and cultural identity (Articles 25–30). The complex terrain of religion-based personal laws (which govern marriage, divorce, maintenance, guardianship, adoption, succession etc.), situated within the rubric of multiculturalism and legal pluralism, is often in conflict with notions of secularism and gender equality (Agnes 2007). The watershed for this type of polarization between gender equality and religious freedom is the controversial ruling in Shahbano13 in 1985. The unwarranted comments against Islam and the Prophet and the call for enacting a uniform civil code (UCC), while deciding the rights of a Muslim woman under a secular statute, led to a backlash within the conservative Muslim religious leadership. Relenting to the pressure mounted by the orthodoxy, the government enacted the Muslim Women’s Act (MWA)14 to exclude divorced Muslim women from the purview of the secular law of maintenance for destitute wives (s.125 of the Criminal Procedure Code). This move by the ruling Congress Party came to be viewed as a blatant violation of secular principles and gender justice in favour of sectarian ‘vote bank politics’. The move to enact this law met with severe opposition not only from Hindu right-wing parties but also from secular and women’s-rights groups. As the debate progressed, the media projected two insular, mutually exclusive and polarized positions: those who opposed the new Act and supported the demand for a UCC were viewed as modern, secular and rational and those who opposed the UCC as fundamentalist, orthodox, male chauvinist, communal and obscurantist. This left no space for articulating shades of grey. Muslims, in turn, were mobilized to view this as yet another threat to their tenuous identity. The rigid approach of the conservative Muslim religious leadership provided further fuel to Hindu nationalists in their anti-Muslim propaganda and resulted in strengthening the Muslim appeasement theory within the Indian polity. However, several events which occurred during the decades following the Shahbano ruling led many rights-based secular groups to change their earlier demand for a UCC as a means of ensuring gender justice. The demolition of a 400-year-old mosque, the Babri Masjid, in 1992 and the riots across India which resulted in loss of life and property of Muslims, the gruesome sexual violence inflicted upon Muslim women during the Gujarat carnage of 2002 where around 3000 Muslims were killed, attacks on Christian churches in tribal areas of Dang (Gujarat 2005) and Khandamal (Orissa 2008), the riots in Muzaffarnagar (U.P. 2013), the continued escalation of violence in Kashmir since 2010 where thousands of civilian lives have been lost and the manner in which the right wing political party, the Bharatiya Janata Party (BJP), used the demand for a UCC as a stick to

The triple talaq controversy 279 beat the Muslim minority with – these are major contributory factors that necessitated a re-examination of the earlier call for a UCC. Rather than an all-encompassing uniform code, concepts such as ‘reform from within’ and a gradual ‘step-by-step approach’ gained currency as a viable strategy to secure gender justice.15

The rising wave of Hindu fundamentalism Since the NDA coalition government led by BJP came to power, dislodging the earlier UPA coalition led by the Indian National Congress (perceived by minorities as a more secular and inclusive party) in 2014, Hindu fundamentalism has escalated to a new height. The extreme right-wing outfit, Rashtriya Swayamsevak Sangh (RSS), provides the present regime its ideological mooring of building a Hindu Rashtra (nation). Within this political framing, the projection of Muslim as anti-national, terrorist and enemy of the Hindu nation has gained acceptance and the secular fabric of the country has been fractured. The venom of communalism has spread far and wide and has taken roots even among the middle and lower middle classes. The recent Uttar Pradesh elections (2017) have given a boost to the party as it gained power with a thumping majority, dislodging the Samajwadi Party which gave Muslims a voice. The choice of Yogi Adityanath, a member of the RSS and an avowed Muslim hater, as Chief Minister has served to highlight the extent to which the majority vote could be mobilized around an anti-Muslim agenda. It is interesting to note that the BJP did not field a single Muslim candidate, and the number of Muslims in the state legislature fell from 74 in 2012 to a mere 24 in 2017 (Fareed 2017). It appears that under the present regime, Muslims as a political identity have ceased to matter. The huge Muslim population of about 200 million is passing through a most difficult phase. A deluge of anti-Muslim tirades, in the form of love jihad,16 ghar wapasi17 and cow vigilantism, have been unleashed upon the largely poor, uneducated and deeply religious community. The beef ban and the more recent ban against cattle slaughter has led to the loss of trade and livelihood of a large section of Muslims. The ascendance of the holy cow into the political arena has given rise to cow vigilantism, with gau rakshak squads roaming the countryside and posing a grave risk to the lives of ordinary Muslims. The lynching of 50-year-old Mohammed Akhlaq at Dadri in Uttar Pradesh, by a mob comprising of a 100 gau rakshaks just a few kilometres away from the capital city in September 2015, and the prime minister’s reluctance to make a public statement condemning the action of such unruly mobs came in for sharp criticism from secular sections of society. Since then there have been several other

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such mob killings in different North Indian states (Apoorvanand 2017). The latest is the stabbing of a young 15-year-old boy in the Delhi Mathura local train on 22 June 2017 during the holy month of Ramzan.18 These brutal killings of Muslims by violent mobs have failed to interrupt the routine business of our legislatures. They have not stirred the collective social and political conscience of a society meant to be governed by the rule of law. According to Apoorvanand, a human rights activist and scholar, the harsh truth is that India’s legislators and parliamentarians seem to have deserted the country’s Muslims (Apoorvanand 2017). It is against this political backdrop of Muslims being pushed to the status of second-class citizens that we must examine the exaggerated interest in the issue of triple talaq by the media and the government’s eagerness to reform the Muslim Personal Law. While the lynching of Muslims did not arouse public conscience, triple talaq, which hit the news headlines around the same time, witnessed unprecedented media publicity. This makes one wonder whether non-reporting of lynchings and heightened publicity given to triple talaq form two sides of the same coin, of treating Muslims as the ‘other’, which then feeds into the global phenomenon of Islamophobia.19

Non-reporting of historic judgement – Danial Latifi Here I must come back to the controversial Muslim Women’s Act (MWA) enacted as a response to the Shahbano20 ruling. Despite its negative projection, the Act was of immense historical significance, as it was the first attempt in independent India to codify a part of Muslim Personal Law. But the positions across the divide were so rigid that there was no space to reflect upon this milestone. Since it was enacted amidst protests from women’s rights groups and progressive social organizations, it was viewed with suspicion and foreboding. Hence the first response of the protesting groups was to challenge its constitutionality, rather than examine its viability. However, while writ petitions filed by these groups were pending in the Supreme Court, the controversial act gradually began to unfold in the lower courts. When a Muslim woman approached the court to claim maintenance under s.125 Cr.PC, the usual ploy adopted by the husband’s lawyer was to enclose a talaqnama (deed of divorce) along with the reply to the petition, under the mistaken notion that the new act has absolved the husband of his liability of paying maintenance to his divorced wife beyond the iddat period.21 But in a curious role reversal, the courts started awarding the divorced wife a lump sum settlement as per the provisions of the new act. The first significant order was by a woman magistrate, Rekha Dixit of Lucknow, in January 1988 when she granted Fahmida Sardar Rs.85,000 (inclusive of maintenance for the iddat period, her mehr amount and a sum

The triple talaq controversy 281 of Rs.30,000 as ‘reasonable and fair provision’ under the new Act) (Jain 1988). This was a quantum leap from the meagre amount of Rs.179, which was awarded to Shahbano as monthly maintenance under s.125 Cr.PC. From 1988 onwards, High Court after High Court upheld significant amounts of lump sum settlements awarded to wives by trial courts. Aggrieved by these orders, the husbands started approaching the Supreme Court with appeals to reverse these orders. Curiously these appeals started accumulating in the Supreme Court alongside the writ petitions filed by secular groups to strike down the statute as unconstitutional. The final moment of reckoning came when the Constitutional Bench (five judges) ruling in 2001 on Danial Latifi22 resolved the controversy and declared that the Act is constitutionally valid and simultaneously upheld the right of divorced Muslim women to lump sum amounts as ‘fair and reasonable settlements’ from their former husbands. In the ultimate analysis, both sides – the secular groups pleading for the Act to be struck down as unconstitutional, and husbands who sought reversal of orders passed by High Courts lost. Divorced Muslim women who had waged a relentless battle to defend their precious economic rights from the magistrate’s court to the final authority of adjudication, the Supreme Court, emerged victorious. The Muslim woman secured for herself the right to determine her economic rights at the time of the divorce and get a lump-sum settlement, a right which is lacking in matrimonial laws of other communities. However, within the communally vitiated atmosphere that prevailed in the country, the advances made by divorced Muslim women under MWA did not attract the media’s attention. Ignoring the historical judgement, the media continued to project the view that after the enactment of MWA, Muslim women have no rights to post-divorce maintenance/settlements. Due to this, even scholars, lawyers and activists were ignorant of the gains secured by Muslim women. This has done the greatest harm to the cause of Muslim women’s rights, as lawyers kept advising their male clients that all they need to do is to draw up a talaqnama and send it by post when a deserted wife files for maintenance in a court.

The making of Shayara Bano and the legal precedent in Shamim Ara As we return to the present, it is important to analyse one of the first petitions filed by a Muslim woman, Shayara Bano, who is hailed as the champion of Muslim women. Soon after the reference to the Chief Justice was made, BJP activist Ashwini Upadhyay filed a petition pleading for the enactment of a UCC.

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When the petition came up before the bench presided over by the then Chief Justice T. S. Thakur, it was dismissed on the grounds that this prayer falls squarely within the domain of the legislature.23 The Chief Justice also questioned the petitioner’s motive in filing the petition. However, the bench assured that if a victim of triple talaq approaches the court, it would examine whether instant and arbitrary triple talaq violated the fundamental rights of the wife. So, by the time Shayara Bano’s lawyer, Balaji Srinivasan, filed a writ petition, the ground for filing the petition was laid and the mantle of being a crusader for the cause of Muslim women’s rights fell upon her shoulders. It is interesting to examine the background of this case. Initially, Bano’s brother had contacted a local lawyer for filing a transfer petition in the Supreme Court to transfer the case filed by her husband in the family court at Allahabad for restitution of conjugal rights (in effect, to ask her to return to the matrimonial home, a far cry from ‘instant triple talaq’), to her native place in Kashipur, who, in turn, referred them to Srinivasan to file the transfer petition in the Supreme Court.24 Since Bano did not want to return to her abusive husband and instead wanted to contest the case, to bring to an end the contentious litigation, the husband’s lawyer resorted to the frequently used device, drew up a talaqnama and sent it to Bano by post. When this was brought to the notice of Srinivasan, he advised them to file a PIL on the ground that the talaqnama violated her dignity, though Shayara Bano had consistently maintained that she does not wish to return to her abusive husband and the marriage had broken down irretrievably. In an interview, Srinivasan conceded that while he knew it would be a big case, the publicity it received far surpassed his own expectations. However, Bano’s core concerns – protection from domestic violence, access to her children, regular monthly maintenance and a fair and reasonable settlement for the future – issues which had to be litigated in the local court under relevant statutes, the Domestic Violence Act and the MWA – remained unaddressed. Subsequently, several more petitions were filed by individual Muslim women as well as various Muslim women’s organizations. It was rather strange that during this entire period, the media continued to project that Muslim women are devoid of rights rather than dwell upon the entire judicial discourse which had held instant and arbitrary triple talaq invalid. In 2002, in a landmark ruling, Shamim Ara v State of Uttar Pradesh,25 the Supreme Court invalidated arbitrary triple talaq and held that a mere plea of talaq in reply to the proceedings filed by the wife for maintenance cannot be treated as a pronouncement of talaq, and the liability of the husband to pay maintenance to his wife does not come to an end through such communication. In order for a divorce to be valid, talaq has to be

The triple talaq controversy 283 pronounced as per the Quranic injunction. In the same year, a full bench in the Bombay High Court in Dagdu Chotu Pathan v Rahimbi26 had held that a Muslim husband cannot repudiate the marriage at will. The court relied upon the Quranic stipulation: ‘To divorce the wife without reason, only to harm her or to avenge her for resisting the husband’s unlawful demands and to divorce her in violation of the procedure prescribed by the Shariat is haram’. All stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties – are required to be proved when the wife disputes the fact of talaq before a competent court. A mere statement in writing or oral deposition before the court about a talaq given in the past is not sufficient to prove the fact of a valid talaq. These judgements in turn relied upon two earlier judgements of Justice Baharul Islam pronounced in 1981 while presiding over the Gauhati High Court – Sri Jiauddin v Anwara Begum and Rukia Khatun v Abdul Khalique Laskar, which had declared: The correct law of talaq as ordained by Holy Quran is: (i) talaq must be for a reasonable cause; and (ii) it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, talaq may be effected.27 Following Shamim Ara there were a plethora of verdicts which declared instant triple talaq invalid and safeguarded the rights of women approaching the courts for maintenance.28 So this had become a settled law. However, the media continued to project the view that once the husband pronounces talaq, the wife is stripped of all her rights. It is due to the selective amnesia regarding the earlier struggles of Muslim women that the petition filed by Srinivasan came to be hailed as the first instance where a Muslim woman had challenged the validity of instant triple talaq.

A gist of the arguments advanced before the Supreme Court Against the backdrop of judicial pronouncements leading up to the present hearing, I now examine the various strands of arguments advanced before the Constitutional Bench. The first, as already pointed out, is the argument advanced by Mukul Rohatgi on behalf of the government seeking a total ban on all talaqs. When asked how Muslim husbands will divorce their wives, the AG’s prompt response: You ban it today, and we will bring in a new law tomorrow (Soni

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2017). He argued that it was not a majority–minority issue but an intracommunity gender equality issue. The government’s eagerness to abolish the prevailing Muslim law, which the community considers a marker of its identity, and bring in a statute enacted through Parliament was clearly on display. The Bebaak Collective (a recent collective of secular women’s rights/ feminist organizations) represented by senior counsel Indira Jaising, pleaded that all personal laws must be tested against the touchstone of fundamental rights. However, she made an attempt to distinguish her position from that of the AG representing the right-wing political regime by stating that in certain aspects Muslim law is better than the Hindu law and that it is not a Muslim issue but the concern of 50 percent of the Indian population. She argued that marriage is a status and a right in rem (against the whole world, not just a personal right against the husband) and for a woman divorce is equivalent to civil death.29 She too pleaded that all divorces must take place under ‘judicial oversight’, and the prevailing practices of talaq and khula in informal adjudicational fora such as darul qazas must be stopped. Advocate Farah Faiz, President of the RSS-affiliated Rashtrawadi Muslim Mahila Sangh, who appeared in person, pleaded that Shariat is interpreted as per the ‘whims and fancies of the local ulema’. Women are dependent on half-baked maulanas, muftis and qazis who sort out problems in their own way.30 She demanded setting up of a high-level committee comprising of scholars and academicians, but not clergymen, to deliberate upon a new statute for addressing issues of marriage and divorce among Muslims. Despite their different ideological locations, the moot point argued by this group was for the enactment of a new statute to regulate Muslim marriages and divorces. The second position advanced by various Muslim women’s groups was to declare triple talaq as one pronouncement, as held by the Delhi high court in 2008 in Masroor Ahmed.31 They pleaded the point, which had been advanced by me earlier since Shayara Bano had filed her petition, that the Supreme Court ruling of 2002 in Shamim Ara had already laid down the procedure for pronouncement of talaq, and the same must be affirmed (Agnes 2016). Mr. Arif Mohammed Khan and Mr. Salman Khurshid, experts on the pristine Muslim law, argued that ‘what is bad in theology can never be good in law and cannot be considered as an integral part of Islam’ and sought judicial intervention to invalidate instant triple talaq. The lawyers representing BMMA, adopting a cautious approach of minimalist intervention, argued that since the law has already been declared, the test of constitutionality is unwarranted. This was a great comedown for BMMA, which had written a letter to the prime minister in November 2015 asking the government to codify the Muslim Personal Law.32 Mr. M. Venkaiah

The triple talaq controversy 285 Naidu,33 a cabinet colleague of the prime minister, in July 2016, had relied on this letter to argue in favour of UCC.34 However, in court they diluted their earlier position and did not plead in favour of enacting a new statute. The third was the argument advanced by Mr. Kapil Sibal for the AIMPLB, who pleaded that matters of faith and belief cannot be tested against Articles 14 and 15 (equality and non-discrimination) of the Constitution, as they are protected under Articles 25 and 26, which are also fundamental rights. Mr Sibal queried that when instances of arbitrary triple talaq are rare, what was the need for a suo moto reference, and pointed out that the AIMPLB had already come out with an elaborate eight-point procedure for talaq and issued an advisory to all qazis to this effect. He concluded his arguments with the analogy of the golden eagle which flies in the Alaskan skies, preying on the little birds below. The birds protect themselves by building their little nests. He compared the minority community to these little birds which have come with great faith to the Supreme Court to protect their little nests – their tradition and culture – from the golden eagle preying upon them and permit them to bring reform from within, which is the Constitutional guarantee given to them. ‘Our faith in this court for last 67 years is fundamental and with that faith we have come here’ he concluded (in PTI 2017). The three positions can be summed up as • •

•

statutory intervention – declare triple talaq unconstitutional and pave the way for the government to enact a new law judicial intervention – uphold the Quranic procedure declared by Shamim Ara that all divorces must be through talaq-e-ahasan mode over a three-month period after making attempts at reconciliation reform from within – internal reforms through the intervention of the AIMPLB.

The decision of the Constitutional Bench is binding on all parties. However, within a communally vitiated political climate, the task of weeding out discriminatory practices of Muslim law tends to be extremely challenging, and there are no easy solutions.35 The demand for a new statute is problematic under the current political regime with its stated anti-Muslim agenda. In a recent article Mr. Mani Shankar Aiyar, a former Congress Member of Parliament, has asked a pertinent question, whether this government with the lowest Muslim representation, just 4.2 percent, is in a position to legislate on matters of Muslim marriage and divorce which the community considers are important markers of its identity (Aiyar 2017). Even if the government enacts the law, the civil rights would have to be secured through a lengthy process of litigation

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in a family court, which may well be beyond the reach of most Muslim women, who are poor, illiterate and marginalized (Soman and Niaz 2016. It is also not clear whether by the word ‘ban’ or ‘abolish’ the campaigning groups are expecting an amendment to the criminal statute rendering uttering of triple talaq a criminal offence. Even here, the complainant would have to go through the rigour of a criminal prosecution to punish her errant husband, and few Muslim women would have the enduring power to pursue such litigation. By then the marriage would have been irretrievably broken down anyway. And if deserting the wife is not a criminal offence, how can discarding her through triple talaq be construed as one when the impact of both upon the victims is similar? Even if the Supreme Court declares the law regarding the proper procedure for divorce, if the family and community believes that such a divorce is valid, it will be difficult for the woman to enforce her rights as a married woman, because she too may believe that it is haram to continue conjugal relationships after the pronouncement of triple talaq. Moreover, this right already exists after the Shamim Ara ruling since 2002, and every arbitrary pronouncement of triple talaq can be challenged in court, but as activists of BMMA have pointed out, it is not easy for a poor Muslim woman to approach the court for enforcement of her right (Soman and Niaz 2016. Regarding the third position, I have already pointed out that the Board’s refusal to come out with a clear statement invalidating triple talaq has led to the current stalemate.

The way forward – a standard nikahnama with protective clauses There are many who think that it will be a simple task for the Supreme Court to strike down triple talaq or declare it unconstitutional and change will automatically follow. However, even if the government brings in a new statute and ‘bans’ or criminalizes triple talaq, it may not be adequate to bring in reforms on the ground and reach it to the lowest social denominator. If the religious leaders reject the changes or boycott the reforms, it will be difficult for the community at large to abide by these changes, and the changes will remain at a cosmetic level, rendering the entire exercise futile. In order for changes envisaged at the highest level to be effective at the lowest level, it is necessary to bring the religious leaders on board and make them stakeholders in the process so that the impact of the changes can be more effective. It is in this context that the question that the Chief Justice posed to the religious leaders to bring in change through its own internal mechanisms becomes relevant.

The triple talaq controversy 287 The contractual character of a Muslim marriage permits conditions to be included in the nikahnama for protecting the rights of women, specially safeguarding their economic rights, prohibiting the husband from pronouncing instant triple talaq and from entering into a bigamous marriage. According to Ameer Ali, a renowned Islamic jurist, the following agreements in a marriage contract are held to be enforceable in a court of law: • • • • • • • •

the husband will not contract a second marriage during the subsistence of the first; the husband will not remove the wife from the conjugal domicile (matrimonial home) without her consent; the husband will not absent himself from the conjugal domicile beyond a certain period; the husband and wife will live in a specified place; a certain amount of dower will be payable immediately after marriage or within a stipulated period; the husband will pay the wife a fix sum of maintenance; the husband will maintain the children of the wife from her former husband; the husband will not prevent the wife from receiving visits from her relations whenever she likes. (Ali 1997)

There have been several instances of such nikahnamas being used during the British period by Muslim families of repute. Even though in some cases it was argued on behalf of the husband that such agreements are against public policy, the courts validated them and held them to be enforceable, since the Muslim marriages were contractual in nature and conditions could be stipulated at the time of entering into the contract. Since the custom of stipulating such conditions has not been in much use after Independence, efforts were made by various NGOs to introduce model nikahnamas. But due to their limited reach, these private efforts have not been effective. But now, since the Board has been asked to file an affidavit to this effect, they cannot shirk their responsibilities, and they would have to send a message to all local qazis who perform marriages that the nikahnama that will be used must essentially have the condition as stipulated by the Supreme Court or else it will amount to contempt of court. This is only the beginning. Once the concept of a conditional nikahnama catches up, women will be in a position to add more conditions as per their specific requirements. This will prove to be an effective mechanism

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to protect women against instantaneous and arbitrary triple talaq and the practice of polygamy and also protect them against domestic violence. Such a nikahnama will not violate the essential character of a Muslim marriage being a contract between two consenting parties. Adding conditions for protection of the wife during her matrimonial life does not in any way violate provision of equality under Article 14 as it is protected under Article 15(3). Such conditions were deemed necessary because of the overarching power a husband has in all patriarchal cultures. The effectiveness of this transformative solution will also depend upon the extent to which NGOs working on the ground are able to act as watchdogs and ensure that the local qazi abides by the advisory issued by the AIMPLB. If they don’t, it will amount to contempt of court. Even this by itself may not sufficiently secure the rights of a Muslim wife. For more lasting impact, along with the standard nikahnama, it is important to create sufficient legal awareness about the rights of Muslim women and their ability to negotiate for these rights in judicial or non-judicial fora. The failure to create awareness about their rights renders Muslim women vulnerable to domestic violence and results in loss of crucial rights. Though there are several statutes which protect the rights of Muslim women, including divorced Muslim women, due to lack of awareness, the Muslim women from poor and marginalized sections are unable to avail themselves of the remedies which they are entitled to. There is an urgent need to focus upon awareness of rights to ensure that important information about legal rights filters down to all women, particularly to the poor and marginalized, who suffer blatant violation of their human rights and become victims of brutal domestic and sexual violence. Due to their poverty, illiteracy and low socio-economic status they become easy victims of exploitation by vested interests. Only when women become aware of their rights will they be able to protect them. Hence spreading legal awareness is critical – particularly about a standard nikahnama that women can use at the time of their marriage to protect them against instant and arbitrary triple talaq.

Conclusion As already stated, a letter written by Zakia Soman and Noorjehan Niaz, the founders of BMMA, to the prime minister in November 2015 was relied upon extensively by Mr. M. Venkaiah Naidu, to support the demand for enacting a uniform civil code (which he referred to as ‘common civil code’, a term used by the RSS), though the letter was confined to asking the Prime Minister to codify the Muslim Personal Law as per the Quranic provisions. Following is an excerpt:

The triple talaq controversy 289 From Shah Bano to Shayara Bano, who recently filed a PIL in the Supreme Court, the focus has been on gender-friendly reforms of Personal Laws. With changing times, the need has arisen for having a Common Civil Code for all citizens, irrespective of religion, ensuring that their fundamental and constitutional rights are protected. . . . While emphasising that the foundations of secularism would only get further strengthened by introducing a Common Civil Code, I would like to recall the words of Mahatma Gandhi: I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side-by-side with one another. With the government seeking the opinion of the Law Commission to examine all aspects pertaining to Uniform Civil Code, the time has come for an enlightened debate in the country to arrive at a consensus at the earliest. This message of a tolerant India sounds hollow in the context of the current political reality of lynching of Muslims that occurs every other day. Neither Mr. Naidu nor any of his cabinet colleagues have come out with a clear statement condemning such acts or preventing such venom from spreading and rupturing the secular fabric of the nation. As mentioned in the article, soon thereafter, to test the waters, the Law Commission of India came out with a questionnaire to seek public responses to the enactment of a Uniform Civil Code, which was criticized not only by Muslims but also by other minorities, tribals and secular groups. So the government retracted from perusing this further (Nair 2016). Thereafter, a realization seemed to have dawned that there was no need to broach the contentious topic of UCC since gender discrepancies within Hindu laws would have to be examined. The letter to the prime minister had given a handle to the government to tinker with the religious law of Muslims through statutory reform. Earlier it was perceived that this could only be done by invoking the Constitutional provision of Article 44 – ‘The State shall endeavour to enact a uniform civil code’ – and without this mandate, it would be difficult to circumvent the protection given to minorities under Articles 25–26. Since in any case, the underlying motive of UCC was to use it as a stick to beat the Muslim with, the purpose would be better served by reforming Muslim Personal Law. The comments of the prime minister, the UP chief minister and other ministers clearly show how effectively BJP used the issue of triple talaq as a political agenda, and they could do it with a clear conscience. They were not doing it suo motu – the demand had come from Muslim women themselves, from within the community.

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Though BMMA diluted its position in court and did not press for statutory reforms, this shift ceased to matter politically, since two other organizations – the RSS-affiliated Rashtrawadi Muslim Mahila Sangh and the secular-feminist Bebaak Collective – though speaking from two different locations, had stepped in to take its place. In fact, the Bebaak position is not just for reform of Muslim personal law but for a gender-just uniform civil code along the lines of what Mr. Venkaiah Naidu had stated in his article in July 2016. The reference made by judges in Prakash36 and the PIL filed by Shayara Bano only served to further boost the BJP’s agenda and keep the issue on the boil. It is indeed interesting to read the comments by Mr. Naidu on the very next date of the conclusion of the hearing that if SC does not strike down triple talaq the government will bring in the law.37 The minister justified this by stating that the government was not trying to ‘interfere’ with personal matters but was trying to ensure justice to women and equality before the law. So each one became a pawn in the hands of the anti-Muslim government in its master plan of legislating for Muslims in the name of gender justice. I am reminded of Zakia Pathak and Rajeshwari Sunder Rajan’s famous essay, Shahabano: To justify the bizarre and sinister formulation, ‘Hindu men are saving Muslim women from Muslim men’, the Muslim woman must invariably be projected as devoid of rights and lacking agency, and the Muslim male is depicted as pre-modern, lustful, polygamous and barbaric. This formulation alone provides the moral high ground for an anti-Muslim government to adorn the mantle of saving ‘Muslim sisters’ (Pathak and Rajan 2007). It is this scary formulation which compelled Shah Bano to relinquish her claim to maintenance in 1985 and assert her Muslim identity as opposed to her claims of gender justice. Faced with a similar dilemma, it’s anyone’s guess how the ordinary burqa-clad Muslim woman of faith will respond to this intervention which is being hoisted in her name. Sherin (cited earlier) sums up the current dilemma: A viable feminist approach cannot de-historicize Muslim woman as a transcendental subject of gender negating her immediate religious and political realities. Gender is always contingent; located historically, materially and socially. Under the current realities of Muslim existence in India, clamor for gender justice for Muslim women cannot exclude Muslim men as part of their community identity and as equal participants in their political destiny. The faith Muslims attempt to protect is not an ahistorical spirituality, but the spirituality whose symbolic markers are constantly wiped out and demolished from the face of the modern nation state.

The triple talaq controversy 291 As a lawyer defending women’s rights, it is not my argument that Muslim women must continue to suffer gender-unjust practices till broader community concerns are resolved. But the current political reality demands a more nuanced and pragmatic approach to address these injustices through multiple mechanisms available to Muslim women, both judicial and community based, rather than flaunting the violations, totally out of context, as a whip to beat the community with, as though gender injustice is the exclusive prerogative of Muslim men.

Postscript – a brief summary of the triple talaq verdict It is indeed surprising that the operative part of the elaborate and complex ruling comprising three different and diverse judicial opinions captured in 395 pages is just one line: ‘By a majority of 3:2 verdict the practice of talaq-e-biddat – triple talaq is set aside’. Justice Kurian Joseph’s opinion, expressed in just 27 pages, helped to clinch the issue. He concurred with Justices Rohinton F. Nariman and Uday U. Lalit that the practice of triple talaq does not form the core of the Sunni Muslim religion and helped it to acquire the status of a majority opinion. But he also concurred with Chief Justice Jagdish S. Khehar and Justice S. Abdul Nazeer that the personal laws of minorities are protected by the Constitution as fundamental rights, a clear statement against the enactment of a Uniform Civil Code, contained in Article 44 of the Constitution, which is a directive principle of state policy. It was obvious that arbitrary triple talaq had to go. No one had held it to be a desirable mode of dissolving a Muslim marriage, not even the AIMPLB. What was under contest was the most appropriate manner in which it could be done – through the courts, the legislature or the Muslim clerics. Though the hype created in the media in the preceding two years had made it out as a clear open-and-shut case, on this critical issue, the verdict split. Chief Justice Khehar held that though triple talaq is undesirable, since it is an integral part of the Sunni Hanafi faith – an unbroken tradition followed for 1400 years – it was not possible for the courts to strike it down. But using the power under Article 142 of the Constitution, the CJI gave a six-month window for Parliament to declare the law and issued an injunction restraining Muslim husbands from pronouncing triple talaq in the intervening period. This is a convoluted verdict that creates more confusion than it solves. The sole Muslim judge on the bench, Justice Nazeer, concurred with this view. But fortunately for us this view, expressed elaborately in 272 pages of the judgement, has become the minority view and no longer applicable.

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The three other judges on the bench gave a clear verdict that triple talaq is invalid. But here again opinions differed regarding the grounds on which it was done. The judgement delivered by Justice Rohinton Nariman (for himself and Justice Uday Lalit) held that since the word ‘talaq’ is mentioned in the Sharia Application Act 1937, it forms part of a statute and becomes ‘law in force’. Hence, it is amenable for being tested against the fundamental rights and declared as unconstitutional. However, the Sharia Application Act does not mention the words ‘triple talaq’ or ‘talaq-e-biddat’. The view expressed by Islamic legal scholars is that a mere recognition of Muslim personal law by the Sharia Act does not give it a statutory status. Justice Kurian Joseph, too, differed with this view and held that triple talaq could not be tested against the touchstone of fundamental rights. He preferred to stay within the realm of Islamic law and examined whether instant triple talaq forms an essential and core religious practice. Since Shamim Ara38 had already declared instant triple talaq invalid and had laid down the procedure for pronouncing talaq, he had no hesitation in concluding that triple talaq is not an essential core of Islamic law in India and hence is invalid. This position has been repeatedly advanced by me, and hence today I stand vindicated. Since there was no media hype, the kind we have witnessed during the last two years since the BMMA flagged this issue, and since the Narendra Modi government at the Centre and its various chief ministers in states, as well as the ideologues of the RSS, had not awakened to the plight of Muslim women as political capital, the historical ruling delivered by Justice Lahoti (who went on to become the Chief Justice of India) had gone unnoticed. So Muslim women and their supporters ignored it in their pursuit to get a decisive verdict from the Supreme Court. But beyond the hype, we have not advanced an inch from the earlier position which had held triple talaq invalid. On the other hand, it is Justice Kurian’s concurrence of CJI’s opinion on freedom of religion that renders it a majority opinion today. According to Prof. Faizan Mustafa, Justice Khehar’s detailed judgement is a major milestone in the history of freedom of religion in India.39 For the first time in Indian judicial history, it is declared that personal laws are an integral part of freedom of religion guaranteed under Articles 25 and 26, which the courts are duty-bound to protect. This hallowed status awarded to the Muslim personal law has warmed the hearts of the All Indian Muslim Personal Law Board (AIMPLB). The mandate of bringing reforms is today squarely in their court. Unless the Board gives a clear signal that it has accepted the verdict of the Supreme Court regarding triple talaq, there is bound to be confusion within the community.

The triple talaq controversy 293 This may provide an opportunity for Muslim bashing by the Modi government, which has rejoiced over the verdict as though it is an anti-minority one, to usher in legislative reforms, a situation which the Board wishes to avoid at all costs. However, in the absence of a clear stand and prompt action from the Board, Muslim women’s groups will be well within their rights to lobby with the government to enact a law to bring in clarity within the Muslim personal law. When this happens, the Board will find its back pushed against the wall.

Notes 1 Shayara Bano and Ors. v. Union of India and Ors SC WP (C) No. 118 of 2016 decided by the Constitutional Bench on 22 August, 2016. 2 Justice Dave was a judge of the Gujarat High Court when Prime Minister Modi was the chief minister of the state. He retired the very next month after making this reference, in November 2016. In August, 2014, while he was a sitting judge, while speaking at a conference at Gujarat University, he made the following comment, ‘Had I been the dictator of India, I would have introduced Gita and Mahabharata in Class I’, which was immediately picked up by the media. http://indianexpress.com/article/india/india-others/ if-i-were-dictator-would-have-made-gita-compulsory-in-class-i-sc-judge. 3 [(2016) 2 SCC 36)]. 4 It is a representative body of Muslims of various denominations. Though a non-statutory body, it has great influence over matters of faith among followers of Islam in India. 5 Shariff Abusaleh and Syed Khalid, cited earlier. 6 News 18. 2017. ‘UP Minister Says Muslims Use Triple Talaq to Change Wives, Satisfy “Lust”’, April 29, www.news18.com/news/politics/up-ministersays-muslims-use-triple-talaq-to-change-wives-satisfy-lust-1387283.html. 7 Over a three-month period. 8 NDTV. 2017. ‘Supreme Court Concludes Triple Talaq Hearings, Reserves Verdict’, May 19, www.ndtv.com/india-news/supreme-court-concludes-tripletalaq-hearings-reserves-verdict-1695503. 9 The sacred fire at the wedding ceremony. 10 Seven steps round the sacred fire. 11 Offering of the bride to the groom. Literal meaning – kanya = virgin, dhan = offering. 12 For a detailed discussion on the flaws within the Hindu Law see Flavia Agnes. 2016. ‘Has the Codified Hindu Law Changed Gender Relationships?’, Social Change, 46(4), http://journals.sagepub.com/doi/abs/10.1177/004908571 6666635. 13 Mohd. Ahmed Khan v Shahbano Begam AIR 1985 SC 945. 14 Muslim Women (Protection of Rights upon Divorce) Act, 1986. 15 This view is also endorsed by some former High Court judges and legal scholars. See ‘Justice K. Kannan Uniform Civil Code: Now Is Not the Moment’, The Hindu July 13, 2016 www.thehindu.com/opinion/lead/k-kannan-on-uniform-civilcode-now-is-not-the-moment/article8840401.ece; and Hameed Syeda. 2016. ‘This Reform Must Begin within’, The Hindu, April 27, www.thehindu.com/

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opinion/lead/lead-article-by-syeda-s-hameed-on-public-interest-litigations-thisreform-must-begin-within/article8524648.ece. The RSS has carried out a systematic propaganda campaign alleging the existence of a Muslim plot to seduce and convert Hindu girls. This term is used to foster a sense of insecurity amongst Hindus and to make ordinary Hindus suspicious against Muslims. This term is used by RSS and VHP for religious conversions of non-Hindus to Hinduism. Saumya Lakhani. 2017. ‘15-Yr-Old Boy Killed, Brother Says Were Called Beef Eaters’, Indian Express, June 24. A term used for prejudice or negative feelings and attitudes towards Islam and Muslims. The term gained wide acceptability in the Western world after the 9/11 attack on the Twin Towers of the World Trade Centre in New York in 2001. Cited earlier. A period of three months after the first pronouncement of divorce, during which a husband is bound to provide shelter and maintenance to his wife as per the Quranic provisions. Danial Latifi v. Union of India, (2001) 7 SCC 740. Dhananjay Mohapatra. 2015. ‘Supreme Court Leaves Uniform Civil Code to Parliament, Door Ajar on Triple Talaq’, TNN, December 8, http:// timesofindia.indiatimes.com/india/Supreme-Court-leaves-uniform-ci . . ., 8 Dec 2015. India is governed by a Constitutional scheme of separation of power between the three arms of the state – the legislature, the executive and the judiciary. The power of the judiciary is confined to examining the constitutional validity of an act or a rule but it does not have the lawmaking power. ShaliniNair. 2016. ‘Shayara Banu’s Fight against Triple Talaq’, The India Express, April 24, http://indianexpress.com/article/india/india-news-india/tripletalaq-supreme-court-ban-muslim-india-shayara-banu-2767412/; there is not much information available about the case filed by her husband in the Allahabad family court. 2002 Supreme Court Cases pg. 518. [Volume II (2002) Divorce and Matrimonial Cases p. 315. Sri Jiauddin v. Anwara Begum, (1981) 1 Gauhati Law Reporter pg. 358 and RukiaKhatun v. Abdul KhaliqueLaskar, (1981) 1 Gauhati Law Reporter p. 375. Parveen Akhtar v. Union of India, (2003–1-LW(Crl)115); Najmunbee v. Sk. Sikander Sk. Rehman, (I (2004) DMC 211); Mustari Begum v. Mirza Mustaque Baig, (II (2005) DMC 94), Shahzad v. Anisa Bee, (II (2006) DMC 229); Farida Bano v. Kamruddin,(II (2006) DMC 698 MP); Dilshad Begum Pathan v. Ahmad Khan Hanif Khan Pathan, [II (2007) DMC 738]; Riaz Fatima v. Mohd. Sharif, (I (2007) DMC 26l) Masroor Ahmed v. State, 2008 (103) DRJ; Shakil Ahmad Jalaluddin Shaikh v. Vahida Shakil Shaikh, (MANU/MH/0501/2016). Sharma Betwa. 2017. ‘Triple Talaq: A Ringside Look at the Proceedings in a Major Women’s Rights Case’, Huffington Post, May 12, www.huffingtonpost. in/2017/05/12/triple-talaq-a-ringside-view-to-one-of-the-significantwomens_a_22082977/.

The triple talaq controversy 295 30 For a detailed discussion see Bhadra Sinha. 2016. ‘Muslim Woman Advocate Moves SC against Triple Talaq, Polygamy’, Hindustan Times, June 2, www.hindustantimes.com/india-news/muslim-woman-advocate-movessc-against-talaq-polygamy/story-smV6eYolof4RvFzZ7TB6GJ.html. 31 Masroor Ahmed v. State (NCT of Delhi), 2008 (103) DRJ. 32 Details of the letter can be accessed at DNA Correspondent. 2015. ‘Muslim women write to PM Modi to make triple talaq, polygamy illegal’, DNA, www.dnaindia.com/mumbai/report-muslim-women-write-to-pm-modito-make-triple-talaq-polygamy-illegal-2149650 (accessed on 21 July 2016). 33 Minister for Urban Development & Information and Broadcasting, Government of India. 34 See for comments ‘Why Not a Common Civil Code for All?’, The Hindu, July 16, 2016. 35 It needs to be pointed out here that despite codification of Hindu laws 60 years ago and stringent anti-dowry laws enacted nearly four decades ago, discriminatory practices and dowry-related violence still persists. 36 Prakash v Phulawati cited above at Endnote No.4. 37 ‘Govt May Step in and Enact a Law to Ensure Triple Talaq Is Banned: Venkaiah Naidu’, Indian Express, May 20, 2017, http://indianexpress.com/ article/india/govt-may-step-in-to-ensure-triple-talaq-is-banned-venkaiahnaidu-4665404/. 38 For the details of the case see ‘This Is Not the First Time Indian Courts Have Invalidated Instant Triple Talaq’, The Indian Express, August 22, 2017, http:// indianexpress.com/article/india/this-is-not-the-first-time-indian-courtshave-invalidated-instant-triple-talaq/. 39 See ‘3 Judgments, 3 Takeaways’, The Indian Express, August 23, 2017, http://indianexpress.com/profile/columnist/faizan-.

Bibliography Agnes, Flavia. 2007. ‘The Supreme Court, the Media and the Uniform Civil Code Debate in India’, in Anuradha Dingwaney and Rajeswari Sunder Rajan (eds.), The Crisis of Secularism in India. Durham, NC: Duke University Press. Agnes, Flavia. 2016. ‘Muslim Women’s Rights and Media Coverage’, Economic and Political Weekly, 51(20). Aiyar, Mani Shankar. 2017. What’s at Risk if Triple Talaq is Declared Unconstitutional, www.ndtv.com/opinion/triple-talaq-vs-divorce-among-other-religions1710918 (Accessed on 14 June 2017). Ali, Ameer. 1997. As cited by Paras Diwan and Piyushi Diwan, Law of Marriage and Divorce. New Delhi: Universal Law Publishing Co. Ltd. Apoorvanand. 2017. ‘Muslims Must Refuse to Be Killed’, The Wire, https:// thewire.in/122420/muslims-must-refuse-killed-cow-beef/. Fareed, Faisal. 2017. Hundred Days of Yogi Adityanath and Muslims: Challenging Times Ahead, http://twocircles.net/2017jun21/411723.html?utm_ source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Two circlesnetIndianMuslim+%28TwoCircles.net+-+Indian+Muslim+News%29 (accessed on 26 June 2017).

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Jain, Minu. 1988. ‘Curious Role Reversal’, Sunday Observer, January 24. Mahapatra, Dhananjay. 2017. Supreme Court Begins Triple Talaq Hearing, Says Won’tTouchPolygamyIssue,http://timesofindia.indiatimes.com/india/supremecourt-begins-triple-talaq-hearing-says-wont-touch-polygamy-issue/article show/58635232.cms (accessed on 12 May 2017). Mahmood, Tahir. 2017. ‘Ball in the Supreme Court’, Indian Express, May 15. Mandhani, Apoorva. 2017. ‘Triple Talaq: Women’s Rights Activist Flavia Agnes Submits Model Nikahnama Before SC’ [Read Written Submissions], Livelaw, www.livelaw.in/triple-talaq-womens-rights-activist-flavia-agnes-submitsmodel-nikahnama-sc/. Nair, Shalini. 2016. ‘Looking at Reform of Family Laws across Religions, Not Uniform Civil Code Says Justice B. S. Chauhan’, Indian Express, November 16. Pathak, Zakia, and Rajeshwari Sunder Rajan. 1989. ‘Shabano’, Signs, 14(3): 558–582. Philipose, Pamela. 2017. ‘Our Own Animal Farm’, The Indian Express, http:// indianexpress.com/article/opinion/columns/our-own-animal-farm-cowprotection-narendra-modi-yogi-adityanath-pehlu-khan-4648544/ (accessed on 12 May 2017). PTI News India. 2017. Kapil Sibal Tells SC Muslims Are Like Small Birds on Which ‘Golden Eagles’ Prey, www.scoopwhoop.com/defending-triple-talaqkapil-sibal-says-muslims-are-like-small-birds-which-need-scs-protection/#. i1wseata8 (accessed on 1 June 2017). Reyaz, M. 2015. ‘89% Muslim Women Call for Govt. Intervention to Codify Muslim Personal Law’, Islamic Voice, http://islamicvoice.com/89-muslimwomen-call-for-govt-intervention-to-codify-muslim-personal-law/ (accessed on 10 October 2015). Shariff, Abusaleh and Syed Khalid. 2016. ‘Abandoned Women Vastly Outnumber Victims of Triple Talaq and It’s Time Modi Spoke Up for Them’, The Wire, https://thewire.in/86335/abandoned-women-triple-talaq/ (accessed on 15 December 2016). Shariff, Abusaleh and Syed Khalid. 2017. ‘Unimportance of Triple Talaq’, Indian Express, May 29, http://indianexpress.com/article/opinion/columns/ unimportance-of-triple-talaq-supreme-court-muslim-law-4678304/ (accessed on 1 June 2017). Sharma, Betwa. 2017. ‘Triple Talaq: A Ringside Look at the Proceedings in a Major Women’s Rights Case’, Huffington Post, www.huffingtonpost.in/2017/ 05/12/triple-talaq-a-ringside-view-to-one-of-the-significant-womens_a_ 22082977/ (accessed 25 May 2017). Sherin, B. S. 2016. ‘Shortcomings in the Triple Talaq Debate’, Outlook, November 6. Soman, Zakia and Noorjehan Niaz. 2016. ‘Why Triple Talaq Needs to Be Abolished’, The Wire, http://thewire.in/43481/why-triple-talaq-needs-tobe-abolished/ (accessed on 21 July 2016). Soni, Anusha. 2017. ‘If Triple Talaq Declared Illegal, Will Bring in Law to Regulate Muslim Marriage, Divorce: AG Mukul Rohatgi to Supreme Court’, India Today, http://indiatoday.intoday.in/story/triple-talaq-polygamy-nikahhalala-supreme-court-centre-mukul-rohatgi/1/954030.html (accessed on 2 June 2017).

11 Women and disability Issues of care Anita Ghai

This chapter is a product of research on the issues of care and dependency within the framework of feminist and disability theory through the voices of disabled women recipients i.e., their daughters and providers of care i.e. their mothers. Since there is little formalized state intervention in India, care provision contributes to the social oppression of both care givers and recipients. I have underscored the points of tension between the two constituencies of caretakers and disabled women in light of the policy.

Care and disability Within India, awareness of issues of disability became a reality in the first legislation in 1996.1 While the developing countries continue to agonize over the most basic of survival needs, discourse in wealthier parts of the world has progressed from issues of service delivery and rehabilitation to an engagement with the multiple nuances and meanings of disabled existence. From this perspective, ‘disability’ does not refer to physical incapacity as such, but to the state of social disadvantage which has come to accompany it. Experiencing feelings of overwhelming loss, disability constitutes an identity crisis which splits the disabled person’s sense of self, understood in opposition with the hegemony of normality. The process through which disability/ability is engineered and embedded in a social, political and historical context is extremely important. In the past three decades in the developed countries a radical paradigm shift has occurred in theorizing disability, from the – still powerful – medical model to the social model2 of disability. This conceptualization of disability evolved from two theoretically different positions – namely social construction (predominantly in the United States) and social creation (predominantly in the UK). The former sought affirmation and facilitation of difference, the latter aimed at more fundamental transformation of deep social structures. Caring specifically has been problematized by scholars in

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disability studies as care is not enabling (Morris 1993; Shakespeare 2006; Beckett 2007) or a social relationship to be treasured. Though caring issues are central to a disabled person’s life, the research on caring in India is conspicuous, apart from very few notable exceptions (Upali Chakravarti 2008; Ghai and Johri 2008; Hans and Patri 2003). It is therefore significant to understand caring in the context of gender and disability. How does gender influence the life of the primary caregiver, who is usually the mother? Further, to what extent do daughters with disabilities see caring as oppressive and to what extent are the experiences empowering?

Gender and disability Ubiquity of care needs has to be underlined, as none of us live our lives without relying on care provided by others. The fact that many of us experience the need for care in early and later life cannot be undermined by overemphasis on independence and autonomy. Dynamics of care relationships have received little attention in the context of disability of care and caring. As Williams (2001: 468) asserts, ‘care as a practice invokes different experiences, different meanings, different contexts and multiple relations of power’. Thus, ‘caring expresses ethically significant ways in which we matter to each other’ (Bowden 1997: 1). ‘Care’ is a complicated term that can coalesce feelings of trepidation and anxiety for others alongside the provision of the practical work of nurturing for others. It is tricky to spell out the thorny emotional and material concerns that caring entails critical to the regulation of everyday life and future aspirations for family, daughters, friends and relatives. As is always the case, disability is much harder for women, as the internalization that disabled women carry in such a cultural milieu makes disability a personal tragedy to be borne alone. Disabled women’s stakeholders have been primarily mothers who have occupied a knotty, conflicting and marginal position within the discourse of disability. These tensions are compounded when the actions of mothers have been interpreted as constraints on their daughters’ lives, limiting their opportunities and aspirations (see, for example, Voysey 1975; Birenbaum 1992; Ryan and Cole. 2008). Within the predominant north Indian culture, the moral imperative is that mothers must care for their daughters, and it is strengthened in such a way that mothers specially those who have daughters felt as though it was their duty to be ‘special, altruistic self-sacrificing’ mothers whose place was absolutely in the home. Within disability studies, the primary model has been to understand a medical approach to mothering a disabled daughter. My understanding is that the ‘burden’ of caring is associated with mothers. In the absence of formalized networks for support and care, mothers are the sole agents who would take care of their disabled daughters. Though caring, dependency and need are impossible to disentangle, mostly presentations focuses on the depressive symptoms, anger

Women and disability: issues of care 299 and resentment that are experienced by caregivers in the caring process. The disabled women are considered as a liability whose agency for defining their own care needs is not prioritized and excluded. Within the context of India, mothers are the general caregivers mostly for disabled daughters. The meanings that are attributed to caring work are never fixed and validated but are unpredictable, fluctuating and situation based. Most mothers do not have to look after grown-up daughters. They are thus unchained in the sequence of caring responsibilities. As Kittay (1999) puts it, It may also be hard to reflect on why so many women do not simply refuse the role of caregiver. The feminist sentiment is that the goal of women should be liberation, equality and non-paid labour. They might protest against exploitation, but no feminist would, could or should urge women to disregard the needs of their dependent daughters especially those with disabilities (Kittay 1999: 237). As Nancy Folbre says, Most mothers would prefer the active and loving cooperation of a father. But if they cannot obtain that, they do not relinquish their children, but rather assume financial as well as direct care responsibilities for them (Folbre 2008: 389). Since dependency labour has never occupied a clear place in our cultural and economic reality, gendering of care work is closely linked to the depreciation of care, which does contribute to the perpetuation of gender inequalities.

Ethics of care and ethics of justice Almost three decades back, Hilary Graham (1983: 18) observed, ‘Caring is “given” to women: it becomes the defining characteristic of their selfidentity and their lifework. At the same time, caring is taken away from men: not caring becomes a defining characteristic of manhood’. Feminist scholarship has problematized the concept of caring as a ‘labour of love’ and contends it cannot symbolize labour and love in congruous assimilation. The positing of an alternative morality of care in the path-breaking work of Carol Gilligan provided an alternative to the universalistic framework of the ethics of justice. Briefly Gilligan argued that women’s morality was foregrounded on the principle that the perceived need for care rather than any abstract principle of justice determined right action. While such theorizing legitimized women’s care orientation, it also evoked the anxiety that this would fix women within stereotyped roles already prescribed through patriarchy. In recent years debates have taken place that have weighed the paradigms of care in terms of the ethics of care versus the ethics of justice (see Beckett 2007; Ghai 2003; Davar 1999; Gilligan 1982; Thomas 2007; Ungerson 1999. Davar in her discussion warns that, ‘Care must be problematized first, for its psycho-politics’ (Davar 1999: 208). This implies that feminists need to assess ‘who’ benefits from this and ‘what’ are the circumstances and consequences for the women who practice care. While feminist

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discourse in general has not perceived the dangers involved in replacing the ethics of caring for the ethics of equality, the latter being unimaginable for the caretakers and care receivers marked by disability; on the part of feminist disability theorists there has been the opposite tendency. That is, despite the actual difficulties of caregiving, and even the violence that sometimes accompanies it, there is a tendency to valorize the caring relationship for its potential to be the very embodiment of genuine intimacy and reciprocity, which cannot find expression in a society dominated by the patriarchal and normative gaze. Theorizing women in terms of the ethics of care creates a tension between the other feminist agenda of autonomy and independence as the guiding principles of any feminist endeavour. However, a feminist philosopher like Noddings says our obligation is limited and delimited by relation. We are never free, in the human domain, to abandon our preparedness to care; but, practically, if we are meeting those in our inner circles adequately as ones-caring and receiving those linked to our inner circles by formal chains of relation, we shall limit the calls upon our obligation quite naturally (Noddings 1995: 15). In Kittay’s work on ‘Love’s Labour’, dependency is understood as more than an ordinary and inescapable variation of the life course. Instead it is a universal aspect of living a life. Kittay expresses this universal relationship in the maxim, ‘We are all some mother’s child’. Thus the identity refers at once to dependents and dependency work; its meaning is indivisible from its political use. The maxim ‘We are all some mother’s child’ emblematically honours the efforts of all mothering persons and therefore ‘human connection per se’. When we do not care for ‘the mothers’ when we do not respect in them the needs they respected in ‘children’, ‘the sanctity of the relation[s] that make possible all human connections is violated’ (Kittay 1999: 69).

Tensions in disability discourse of caring In contrast to the gendered depreciation of caregiving, disability theorists have highlighted the ways in which care all too often contributes to the disempowerment of disabled people (Oliver 1989Shakespeare 2006 also see Watson et al. 2004). Understanding care predominantly in instrumental terms contributes significantly to the discrimination against and incarceration of people who are disabled and ‘cared for’ (Oliver 1989; Shakespeare 2006; Vasey 2001; Ghai 2008). The construction of disabled people’s care seems to be often denigrated as needy and dependent. Further the insidious labels of paternalism, pity, demand for gratitude, abusive treatment, domination, control and confinement characterize the care recipients. Care is often demonized and represented as disabled women’s experience of the simultaneity of sexism and disablism, which create barriers to equal

Women and disability: issues of care 301 participation. I recall Julia Twigg’s work on older people’s experiences of being given a bath. What she says is illuminating. ‘One person, strong and able, stands above and over another who is frail and physically vulnerable, forced to rely on their strength and goodwill. Being naked in the face of someone who is not, contains a powerful dynamic of domination and vulnerability, and it is often used in situations of interrogation and torture as a means of subjugating the individual’ (199921). Feminists like Anita Silvers contend that it is important to understand the ‘power differential’ between the caregiver and disabled people who are as ‘other’, ‘helpless’ and ‘dependent’. ‘For a non-disabled person, both a friendly response made towards a disabled person – that is, someone who is regarded as unworthy and burdensome-and a hostile response made against a disabled person – that is, someone who is regarded as unfortunate – casts the ‘defective’ person as an irritant to the non-disabled person’s sense of self-esteem’ (Silvers 1997: 33/4). The moot point is that, for both caregivers and care recipients, the subjugation of care is deeply felt and associated with institutional incarceration, limited social commitment, partial citizenship, disempowerment and segregation (Hughes et al. 2005). To be cared for is to be in deficit and to have one’s competence as a social actor denied or questioned. As I write elsewhere, ‘Requiring the help and support of others in order to pursue everyday activities such as dressing and undressing, eating, moving or pursuits of an intellectual nature in adult life, means that power remains with those who provide support’ (2005: 155). Though mothers as caregivers give their emotional and physical labour, the sense of burden tends to generate feelings of exploitation. Recipients therefore experience hurt, anger and outrage. Yet paradoxically, the giving and receiving of care is also experienced as a deep and deeply rewarding expression of love, pleasure and vocation. However, understanding of care raises the issue that care should not be regarded as an unquestioned social good, and care must be understood within a framework of rights.

Policy According to Mary Daly ways of understanding care are present in research literature. Says Daly, ‘As a concept used to interrogate and account for women’s situation; as a moral orientation and particular type of relations; and as a framework for the management of the life course and economic and social relations more generally within the aegis of public policy’(Daly 2002: 252). What is omitted is critical bond between the above three conversations and developing policy. Joan Tronto (1993) and Selma Sevenhuijsen (1998) have drafted a way of analysing public policies in contrast to dominant conceptions of individuality and sovereignty. They stress the

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fact that defencelessness and mutual dependency are central concerns of human life, and shared by all human beings and not only disabled people. Despite equal-opportunities legislation there is no access to state support of informal care givers such as mothers as recipients of care. The state has its own priorities in allocating funds. Unless the impact on state policy of prevailing discourses of both ‘women’s role’ and ‘disabled women’s needs’ is addressed, those allocations will support oppressive relationships. Since the need is located in the requirements of the individual, attention is diverted from need as a universal requirement that should be located in state-funded services. Scholars such as Traustadottir have placed policy reform in the context of a division of care organized around gender inequality and gendered ideologies about appropriate roles for mothers. In this context one significant step is to redefine social citizenship. Within the discourse in UK terms such are ‘care taker’/‘carer’ have been dropped and prefers terms such as personal assistance, help or support (Shakespeare 2006; Vasey 2001). As Eva Kittay (2011)shows that care is a constitutive part of any acceptable account of justice and that public policies should be shaped by the value of care: ‘A justice which does not incorporate the need to respond to vulnerability with care is incomplete, and a social order which ignores care will itself fail to be just’ (Kittay 1999: 102). The principle of ‘doulia’: ‘Just as we have required care to survive and thrive, so we need to provide conditions that allow others – including those who do the work of caring – to receive the care they need to survive and thrive’ (Kittay 1999: 107).

Method To understand the experiences of caregivers i.e. mothers and care recipients, i.e. daughters I have used the grounded theory. The participants were 20 mothers and their daughters. Five disabilities viz., cerebral palsy, visual impairment, hearing impairment, developmental disability and spinal injuries were selected. The inclusion of women with a variety of impairments in the research has been important for two reasons. As an activist I am concerned about an essentializing discourse which presumes that all disabled women share similar problems and experiences regardless of their social attributes. Secondly, disabled women have wide-ranging life experiences depending upon their actual impairments. For me both mothers and their disabled daughters epitomize the dilemmas that confront caring issues. The age range of women was 45 to 58 and the daughters’ age range was 16 to 27. Though I did not control for religion, participants happen to be all Hindus. Both mothers and daughters were provided with information about the nature of the research as part of informed consent procedures. Participants

Women and disability: issues of care 303 were assured that the data would remain confidential and I would respect their anonymity. Pseudonyms have been used when quoting participants, and efforts have been made to avoid identifying information when reporting the data. Some of the women with developmental disabilities attended the interviews with mothers, though they were not sitting with them. The hearing impaired participants were provided with an interpreter who is part of the Deaf Way, an NGO. The interpreter knew the girls. This was important because I did not want to risk negative interactions with the girls when they were sharing their stories to a relative stranger. The grounded theory is the understanding of the experiences of caring. Consistent with grounded theory3 methodology, a schematic plan of phases is given in Figure 11.1. The data were subjected to an intensive line-by-line coding and memomaking process. The core categories emerged from my analysis of participants’ accounts, each of which were interweaved to define the major caring issues affecting disabled women and their mothers. Within the field of disability research, what is critical is to follow is an emancipatory approach that motivated me to choose a grounded theory approach, which is a qualitative research method that uses a systematic set of procedures to develop an inductively derived grounded theory about a phenomenon (Glaser 1978; Glaser and Strauss 1967; Strauss and Corbin 1990). I follow Charmaz in arguing that a constructivist approach to grounded theory is both possible and desirable, because, ‘Data do not provide a window on reality. Rather, the “discovered” reality arises from the interactive process and its temporal, cultural and structural contexts’ (Charmaz 2000: 524). In-depth interviewing was utilized to understand the caring issues. The categories which have emerged in research are as follows.

data-collection note-taking coding memoing sorting writing Figure 11.1 Schematic plan of phases

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Analysis of core categories Duty was the defining characteristic of mother and daughter’s relationship. The focus is on the mothers providing the minimal amount of care deemed necessary for the survival of their daughters. In such relationships, the mother is clearly in charge of identifying her daughter’s physical needs and providing task-focused care. As recipients of care the daughters experience themselves as a burden and the mother is constructed as an oppressed woman. The caring needs were contingent on the specific disability, but some of the issues were uniform. I could sense interpersonal conflict and emotional distress as I interviewed. Mothers’ limited physical, financial and social support systems were almost depleted and impacted the daughters. The categories are as follows:

Conflicting role and financial demands Constrained by the duties mothers’ time is being consumed by caregiving. Disability imposes substantial costs on families, but specifically mothers. Such costs including household work, limited time and financial constraints are often termed as the ‘subjective’ private costs of care related to deteriorations in the quality of life for the daughter and caregiving family. Disabled daughters on the other hand experienced a range of negative psychosocial reactions, including dependency, reduced self-esteem, disrupted development, social isolation, and a sense of anxiety, grief, family conflict and isolation. ‘As a caregiver I had to opt out of employment’. Difficulties in the process of obtaining a state monetary grant for the daughter added to the mothers’ financial burdens, as too much time and bureaucratic red tape is the general narrative. Thus financial instability exacerbates the negative impact of caring on daughters as well feelings of caregivers. Some mothers who had fewer financial worries and though they were stressed, finance appeared as a shock absorber. As one of them said, ‘I could hire a helper so that some work was taken up by her’. Mothers with daughters with intellectual disabilities, the adequacy of money and time resources did not get requisite training and assistance. Also for daughters with spinal injuries leaving the daughter would be difficult for them, ‘I cannot leave my daughter with anyone else, so how can I pick up a job?’ Further unemployment of their husbands exacerbated the financial problems arising from being a caregiver to a disabled daughter. The mothers’ conflict thus becomes apparent, as the disabled women’s understanding of ‘mothering’ has come to be equated with the carrying out of domestic and caring tasks. Though the daughters help in vegetable cutting, washing clothes etc. they do have to grapple with

Women and disability: issues of care 305 the dilemma that they need, to a greater or lesser extent, care or assistance from the mother. Mothers in this context experience a high degree of a degree of scrutiny by Medical professionals which would not routinely be applied to non-disabled women. Mothers of disabled daughters are held more responsible than others to a superficially distinct concept of acceptable mothering because of their augmented contact with doctors, speech specialists, school teachers etc. Yet their experience makes them vulnerable to the charge of inadequate and also damaging mothering. For example, professionals have criticized mothers for being unable to handle daughters. Dealing with the shock of learning about their daughter’s diagnosis for example was the precipitating factor. Exacerbated by a lack of information provided by the medical profession, the mother’s initial reaction of finding out her daughter had cerebral palsy was that of shock and devastation. Another mother said, ‘The minute the neurologist made a diagnosis of cerebral palsy, the response was that my child would be “handicapped” for the rest of life’. With regard to professional assistance agencies are usually situated in urban areas, which may be difficult and costly to reach. Specifically mothers from low middle class reported inadequate support from government hospitals as well as NGOs with respect to disclosure of the daughter’s disability. Experiencing insensitivity and lack of empathy was crystal clear. ‘I took my daughter to the hospital. The doctors said that your daughter will be like this. “Arre Bhai aandhi hai Kuch nahin ho sakta”. I was shocked and cried. However to gain knowledge from the professionals was difficult. I would have liked more knowledge for my hearing impaired daughter as she could not sleep well at night and used to cry a lot. Some mothers reported that their daughter had benefited and that they were assisted by the knowledge, training and support received from, in particular, a reputed hospital such as for spinal injuries. The qualitative difference came from a team which had doctors, psychologists and peer counsellors’. Though I was devastated and life would be meaningless, I got a renewed life notwithstanding my paraplegia. For many mothers daily lives were impacted by the fantasy of cure. As Shobha says, ‘I did everything. I went to all the possible hospitals but no one could help me. No one heard me. The doctors just gave me then I went to private hospitals also, but nothing happened’.

Multiple roles in limited time All the mothers considered their roles as a single person who has multiple parts. The mothers appeared to combat their different roles as they

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negotiate with time and resource limitations. Many mothers experience a ‘burn out’. For instance Rashmi says, I do everything. I have to be the mother, the friend, the pacifier, the teacher and of course a personal assistant . . . because her father gave up on us when she got disabled. . . . I don’t think it ever stops, having a disabled daughter, but I will go on. I know I cannot stop working for her. In looking after the daughters household chores go unheeded. As Shubra says, ‘I have two children who are blind. I have no extra resources. What should I do? My daughter, is well behaved and does help in kitchen and does not fight with me’. The daughter on the other hand is very emphatic with the mother and says, ‘My mother is trapped and there is no end to her problems’. Similarly Usha says, ‘My daughter is deaf. I don’t want her riding the metro alone. What if she needed help? People wouldn’t be able to understand her. They might not even understand that her cry for help was a cry for help’. Rashi, another mother, says, ‘only if society could have understood our issue. There is lot of stress because it never goes away. It is constant. But I am everything to my daughter. Even if I just want to yell and say that I can’t do this anymore’.

Ambivalences in an able-bodied society: issues of stigma For mothers, the stigma attached to disability is extremely painful and difficult. In a cultural milieu, where normality is desired, a strong sense of shame is there in the mothers and daughters. The guilt and shame are fought at different stages that problematizes the ‘naturalness’ of disability. The guilt ridden mother often becomes harsh with daughters as they experience a ‘failure’. The argument thus, is, that if caring cannot come from mothers, no one else can be expected to take up that role. Such expectations do not take into account the trauma that is associated with disability. Notwithstanding some community support, others, both mothers and daughters, experience pejorative language including terms such as aandhi, behri, langri and pagal. She said that as a mother, I feel badly because if she’s in a social setting and she’s the only girl with Down syndrome, people see the disability, they don’t see the person. . . . I notice people don’t want to approach her. If at all they are patronizing or they don’t want to talk to her. It is very hurting.

Women and disability: issues of care 307 On being called blind the daughter responded, Thanks to my mother, I have had reasonably good education. My mother still has to take care of me as society prefers sighted people. I do not identify myself as blind. I am not apologetic as otherwise, I would lose my self-respect. In fact as I live my life on a day to day basis, I don’t remember that I am blind, though it is very clear to me that it is obvious to the world. Two caring mothers who took out some time for themselves encountered patronizing attitudes. As one of the mothers says, ‘I don’t know, maybe I should not have dressed well and I should have told everyone how unhappy I was, what a tragedy it was that had happened to my daughter. But you see, I wanted to be well dressed for my family’.

Issues of dependence and autonomy Some mother–daughter relationships were confrontational as the distinctive feature is one of ‘power over’ where both the mother and daughter compete for control or authority over the care process. Says the daughter, ‘This conflict has been an overriding force throughout my life. She is a very difficult person to be around. Even when I was a little girl, I knew that I never wanted to be like my mother. The loss of my grandmother worsened my condition as she always pushed me back’. Some mothers were concerned about the issues of overprotection and dependence. Says another mother, ‘When Shreya was young, she use to cry for me care. I could not have left her alone, but I did not want her to be spoilt’. Says Jena, ‘It was difficult. I knew that my daughter would progress only if I am there’. Such a close emotional impact on the daughter led to feelings of desolation and dejection. Rama says, ‘What can I do?’ Because of the daughter, everything seems depressing and that nothing else can happen, because her disability is so time-consuming and dependent on her mother. Rathi’s sadness was clear. ‘I have had to neglect the duties of other family members due to the demands of the daughter. I lost my husband and the girl did not study well I had no option. Now she is in the NAB and getting craft work’. Another mother says, I realize that my daughter is going to be dependent on me. It is the reality. It’s truly difficult for me to think that one day my daughter will marry and be independent, and will be able to look after herself. She’s always going to have to have somebody to take her where she wants to be. Sometimes I feel very dejected as she wants to go to the cinema, and malls, but who will make sure that somebody can take her.

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The daughters on the other hand felt that mothers are too overprotective. Says Reema, ‘My mother infantilizes me as I am a passive dependent, unable to make decisions about my own life. She is a great mother but power is with her. I should be grateful to her for caring for me, as a poor disabled person is recipient of burden.’ Sanjana identified her mother as a key factor contributing to the lack of independence that she experienced within his life. My mother has a ‘religious passion to wash off her guilt for producing a blind child’. Ranju exclaims, ‘I am considered speechless. My mother speaks for me’. Vruna says, ‘It was almost like she wants to always be in a boxing match. . . . Suppose I want a burger and she has to count my calories. . . . Well I know she did nothing wrong, but am I not a human being’. Disabled daughters do not see themselves as dependents. They indicate that we too have cared for the families members, but they do not register giving care. Says Veena, ‘Despite my blindness, I have helped my mother all the time. It is good that you are interviewing me but generally only the mothers get the praise.’ Some interviews clearly indicated the antagonism between the mother and daughter. The caregiving demands therefore has the potential to harm. Says the daughter, ‘I did not choose to be disabled. Being rejected is not easy . . . but worse is that I will not be able to leave home. I tried running, but I was not lucky. My mother traced me and brought me back. I know my mother has two visually impaired daughters, but she has concealed the abusive parts.’ Sneha, the mother, gets annoyed with too many demands. She is very, very deprived. Sometimes I just have to endure her but I can’t be with her for long. She is so greedy. There are no rewards in this relationship at all as she grew older. I find myself so harassed and so upset and in tears and I would just say to my husband, ‘I just wish she was dead’.

Family support Support was not taken for granted, as very few mothers reported that their husbands would make a positive contribution. As mother of a daughter after an accident and consequent spinal injuries says, ‘My husband chucked us out of the house. He hated the disability. Only her grandmother supported, but unfortunately she died’. The mother of a visually impaired child, however says, ‘Fortunately the father of the daughter is supportive of everything . . . in each and every thing, we are working hand-in-hand’. Two mothers, who were widowed, reported a lack of support from the paternal family, while the maternal families did assist. ‘I get some support from my brother and his wife’.

Women and disability: issues of care 309 However when disability is of a chronic nature, the family members ceased to give support. Similarly schooling for their daughters was an issue as most schools catered for specific disabilities and not for inclusive education. The mothers’ frustrations with an unhelpful school system are recorded: ‘Since last year the mother has been looking for a place. They say, “If the daughter is blind, it is fine”. But, because the daughter has cerebral palsy, she can’t find a place’.

Varying attributions of causality the predominant cause seems to be God’s will or retribution for past sins. As the mother puts it, ‘Kismet kharab thi, . . . whatever has to happen to everyone will happen’. Similarly, the daughter too believed ‘I must have done something in my past life’. Others like Seema said, ‘This is because of God. He only has done this’. Despite hardships, the mothers pursued various treatment options such as shamans, mystics, rituals. Some of them accepted the reality and evolved a philosophical sense of understanding their daughter’s disabilities. Initially there was a lot of questioning, searching for a cause or blaming others for the nature of the daughter’s limitations. With time the caregiving demands overrode such queries. Both a sense of helplessness as well as karmic agency were present. Further, potential causes of the daughter’s disability, such as mothers’ emotional stresses, premature birth, a possible curse, and heredity were considered as causes. One mother said, ‘I believed that when my daughter was premature, I saw a woman with a disabled daughter. Now I do not believe but at that time I got baddua [a curse]’. These sentiments resonate with the works of Singh and Ghai (2009). The mother also believed that she aborted a daughter as her first born was too young. The mother was convinced that it is a curse because ‘I killed a daughter’. However, many of the mothers had become diligent religious persons. It is almost as if supreme power rests with god. Beena, a daughter with spinal injuries says, ‘My fantasy is to find God so that I can tie him in the chair. If he/she cannot be tied for long, at last sit for some time. It is only then when God would realize what it means to understand that one has to be on chair. It seems that God too has no understanding of the pain of disability’.

Unknown future: anxieties and plans Fear of the future is full of uncertainty, both for the mothers as well as daughters. Mother A for instance says, ‘Please understand that caring of a disabled daughter is a backbreaking 24/7 reality. . . . Living in a state of unremitting anxiety, I feel that I would die before time; I am afraid of

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security and protection of my daughter’. Similarly another mother says, ‘I do not want to leave my disabled daughter here in this world without me. I am a sane and rational person, not depressed or suicidal, or in danger of any self-harm, just very stressed about the future’. The mothers were concerned about residential accommodation. As Srijana asks, ‘Can’t they think of having a hostel for the girls? Do they ever think about the fear in mothers? I am petrified of the unknown. How do I know that I will not die?’ Similarly Pushpa quotes her husband, who says, ‘That even though I knew that my fears are irrational, but I cannot help. No amount of positive thinking could overcome this horrible, creeping fear that I might die and my daughter will be left alone’. The daughters too were apprehensive but many of them did have plans. For instance M says, ‘I have to complete my studies and get a decent job, but I am scared if something happens to my ma’. The mothers do rely on their understanding of issues such as education and employment. When I make a plan, my mother goes along with it because that’s something we spent some thought on. She took me to AAD, a NGO but I don’t like to put too much on her shoulders because she’s got enough to do already. . . . I try not to bother. I don’t know how she does what she does. I hate to be an annoyance or an irritant.

Issues of sexuality Issues of sexuality have to be contextualized in a culture which privileges marriage as an institution. Silence of mothers on issues of sexuality was not surprising. In the interviews with the mothers, there was only one mother who voiced concern about giving the idea of sexual touch to her disabled daughter who has spinal injuries. The mother says, I know that she is bedridden, yet sometimes I find myself consciously telling my daughter that she will be touched and have a lover, be a mother, raise a family. I tell her this not because I believe that these are her only options. But I tell her this because I know that nearly all of the rest of the world doesn’t believe that she can do it. And she is infused with this disbelief many ways every day. The daughter says, After the accident, I realized that I would not live a rewarding and productive life, that I would not live independently from my mom, dad and my brothers. I think I do have relationships, maybe different.

Women and disability: issues of care 311 This does not mean I did not try to be pretty and style my hair. I know I want to prove that I am a ‘real’ girl, but I do experience a dull pain for the validation. Mothers of developmentally disabled daughters were worried about sexuality issues. Sangeeta, a mother, says, ‘She is governed by the Bollywood images. She wants a boyfriend, for sure, but there’s no way that I can allow such interactions’.

Framing disabled daughters through the lens of issues of intimacy and relationship Relationship issues did mark the caring mother as well as disabled daughters. For instance, says Jaya, I usually take care of basic needs . . . I make sure that she gets her medicine, but other than that . . . I do comprehend her desire to sit and talk, have a conversation. . . . But I am really overworked. Also I’m just tired of being the mother all the time. . . . It feels like a chore sometimes and I feel bad about that because it shouldn’t, but I just figured it’s my daughter and so someone’s got to look after her. Rhea says, Our marriage has suffered massively due to caring. Though he is cooperative, he is the only earner. Consequently we have minimal time as a couple. Not that it was extraordinary relationship, but over years relationship has all but dissolved – now relationship merely consists taking care of our daughter (cerebral palsy). My first born daughter, has missed out on a lot of things. The daughter did notice the absence of emotional attachment with the mother. ‘I know I am a big burden on her’. Another daughter discerns a lack of affection. ‘It’s difficult for me to get close to her. Almost like an inspector, I have to report that I left at six. Supposing I reached little later than usual, she would have a volley of questions for me’. Anshula, however, said, ‘As a mother though I care for her, I don’t think that either she or me rejects and exclude each other. I need her as much as she needs me. We love each other and when I need her, she is there’. Another daughter said, ‘Well roles reversal was there when my mother was hospitalized because of her surgery. I managed the home front. The mother–daughter relationship sometimes might be skewed, but it is not

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simply a matter of identifying mother as the caregiver and daughter as the recipient’.

Caring and reproductive health Most of the mothers did not have significant problems in teaching the daughters about menstrual hygiene. Though different disabilities have been included in my fieldwork, only developmentally impaired girls took more time. Also those with spinal injuries needed extra assistance by the mothers. None of the mothers opted for hysterectomies. A mother of visually impaired said, ‘I really use to worry when my daughter would have periods. I told her a couple of times, but she picked it up very soon. I think her sharp mind was responsible for not pressurizing me’. In a discussion on abortion four mothers of developmentally disabled girls affirmed the right of abortion. The rest of the mothers as well as daughters avowed the right of the disabled to life. Though committed to caring for their daughters, the mothers highlighted the discrepancy between their own feelings and the dominant interpretation of disability. Sangeeta feels, ‘Although there is greater awareness about disability, the negative attitude of people has not really changed. Also the issues of caring are problematic as very few informed centres are there for adequate training. Also, caring is still contingent on the mother’.

Discussion The mothers’ as well as disabled daughters’ understanding inevitably acknowledged how the mothering practices intersected with their awareness of the ideology of motherhood. The daughters spoke about their awareness of how the mothers and society perceive them in terms of the disabilities. To my mind though women’s own mothering practices, were seen as committed or ambivalent, unswerving or unreliable but were instead centred on how the women experience family and society’s views and judges their performance of mothering. My interviews with the mothers and daughters in the context of giving and receiving care may be inflected with a huge range of feelings including love, hate, empathy, revulsion, warmth, anger, resentment, pity, guilt, distaste, shame, pride, hope, dread, fear, anxiety, helplessness, desire and sadness, any or all of which may be felt by mothers and daughters. What is significant is that there is no polarization between the mothers and daughters. As Oliver reminds us, No one in a modern industrial society is completely independent for we live in a state of mutual interdependence. The dependence of disabled

Women and disability: issues of care 313 people, therefore, is not a feature which marks them out as different in kind from the rest of the population but as different in degree. (Oliver 1989: 8) Though the mothers have spoken eloquently about their own vulnerability and how it is heightened because of economic, physical and social dependency on families and specifically the husbands who do not share the work and the daughter’s caring needs. My submission is that the recommendations of this research should give voice to the range of ways in which disabled women understand the caring experience and the status of mothers as caretakers in society in general. What is important is that we recognize that both caregivers and care recipients are a diverse group of people whose needs are as diverse as those who they care for. Though the daughters have certain concerns about caring, what is underscored by both the constituencies are the tensions inherent in the issues of state. In terms of policies the need for awareness campaigns is urgent. The mother’s valued role in society should be recognized as the money they save the government and the sacrifices they make by choosing to care for their loved one. Both mothers and daughters suggested that they actually felt as though they were being punished by the government and looked down upon by society for being mothers. According to both mothers and daughters the policy directives should focus on the issues of care. The funding of support systems for caring and meaningful entitlement should be considered for both groups. Also the disability groups need to be able to pay for care, as Carol Thomas (2007: 114) suggests that disabled people should join with personal assistants in a common campaign to increase the monetary value of care. In one sense the need is to raise the alarm over the new law as there is increasing abuse and inequity against disabled women and informal and unpaid mothers who are caretakers. Fiona Williams (2001: 477–478) names this perspective of care as ‘the universalist paradigm’ and states that it ‘recognizes us all as interdependent and as having the potential and responsibility to be caring and cared for’. Speaking as a researcher of disability issues, I believe the schism of binary conceptualization needs to be interrogated. They called for the state to give extra allowances for caregiving and receiving care, for seeking support, for creating effective and accessible educational facilities, meaningful employment, suitable and supported accommodation in hostels and homes. As one of the mothers says, ‘The government should not be out of touch with our care needs and realities of our lives (both the mothers and daughters). We put the needs of our daughters we care for ahead of our own life, often to the detriment of our own health, well-being, lifestyle and other relationships’. As Watson et al. (2004: 338–341) have argued, ‘[w] whatever the differences between the structural positions and standpoints of

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both parties, one might expect that there is room for common cause’ and reminded us that ‘the disability and feminist movements share a passionate commitment to their respective emancipatory projects’. What is poignant is that both mothers and daughters were congruent when it comes to policy directives. Within the cultural ethos of India, interdependence is a reality that cannot be ignored. Watson et al. (2004) took up Fraser and Gordon’s (1994) interpretation of interdependency and Fraser’s concept of need (1989), an understanding of ‘needscapes’ is helpful. Watson and others (2004) construe that the notion of terrain that has been woven through these landscape conceptualizations incorporates both time and space allowing a view of everyday life that has the potential for disempowerment to be reduced and exploitation to be redressed (Watson et al. 2004). In the context of care, historicizing dependency, claim Fraser and Gordon (1994: 5), de-publicize it and ‘renders explicit assumptions and connotations that usually go without saying, for example, gendered sources of entitlement and what counts as labour’. Interdependency of shared needs is personified in caring. Since everyone would need support and care the idea is to create dialogues with the disabled as well as marginalized sections. India by definition is a welfare state and is obliged to treat people with justice and respect. Addressing disabled women, specifically in a normative and patriarchal culture, anomalies in policy does not result in care which is both enabling and empowering. The discourse that ‘disability as a lack/flaw’ attaches lot of currency to caregivers and valorizes the ‘bravery’ of the mothers. I have underscored the images provided in the discourse of care, where the caregivers such as mother/wife/daughter emphasize the agency of the caregiver and the dependency of the care recipient. However, disabled people are often thought to be excluded from caring for dependents when because of prejudice, ignorance or lack of supports, they are shut off from a mode of flourishing to which they should have a right. My sense is that the everyday experience of giving care to a person with an impaired body because of a care need rather than a care bond is underexplored. One way is that there is a trap, as the choice of having a dependent daughter cannot be forgone. To have a fair, just and interdependent organization of care labour, where mothers are taking care of disabled daughters might be a fantasy. However, the ethics-of-care discussion has begun to emphasize the interdependence of all people, which diminishes the differences between ‘us’ and ‘them’, that is, between caregivers and ‘the dependent’ (Kröger 2009).

Notes 1 With the ratification of UNCPRD, the decision of disabled people has been to initiate a new law in concordance with the spirit of convention.

Women and disability: issues of care 315 2 Thee medical model of disability conceptualizes bodily difference in terms of impairment requiring medical intervention, whereas the social model puts the onus of disability not on the individual but on the society in which he or she lives. Architectural, educational and employment barriers created by society disable the individual, not his/her body. 3 For a detailed understanding of Grounded Theory, please refer to Kathy Charmaz. 2000. ‘Grounded Theory: Objectivist and Constructivist Methods’, in N.K. Denzin and Y. Lincoln (eds.), The Handbook of Qualitative Research. Thousand Oaks, CA: Sage.

Bibliography Beckett, Clare. 2007. ‘Women, Disability, Care: Good Neighbors or Uneasy Bedfellows?’, Critical Social Policy, 27(3): 360–380. Birenbaum, Arnold. 1992. ‘Courtesy Stigma Revisited’, Mental Retardation, 30(5): 265–268. Bowden, Peta. 1997. Caring: Gender-Sensitive Ethics. London: Routledge. Chakravarti, Uma. 2008. ‘Burden of Caring: Families of the Disabled in Urban India’, Journal of Gender Studies, 15(2): 341–363. Charmaz, Kathy. 2000. ‘Grounded Theory: Objectivist and Constructivist Methods’, in Norman Denzin and Yvonna Lincoln (eds.), The Handbook of Qualitative Research. Thousand Oaks, CA: Sage. Daly, Mary. 2002. ‘Care as a Good for Social Policy’, Journal of Social Policy, 31(2): 251–270. Davar, Bhargavi. 1999. Mental Health of Indian Women: A Feminist Agenda. New Delhi: Sage Publications. Folbre, Nancy. 2008. ‘Reforming Care’, Politics Society, 36(3): 373–387. Fraser, Nancy. 1989. Unruly Practices: Power, Discourses and Gender in Contemporary Social Theory. Cambridge: Polity Press. Fraser, Nancy, and Linda Gordon. 1994. ‘Dependency Demystified: Inscriptions of Power in a Keyword of the Welfare State’, International Studies in Gender, State and Society, 1(1): 4–31. Ghai, Anita. 2003. (Dis)Embodied Form: Issues of Disabled Women. New Delhi: Shakti Books and Haranand Publications. Ghai, Anita. and Rachana Johri. 2008. ‘Where Do We Draw the Line: Issues of Prenatal Selection’, Indian Journal of Gender Studies, 15: 291–316. Glaser, Barney. 1978. Theoretical Sensitivity: Advances in the Methodology of Grounded Theory. Mill Valley, CA: Sociology Press. Glaser, Barney, and Anselm Strauss. 1967. The Discovery of Grounded Theory. Chicago: Aldine. Graham, H. 1983. ‘Caring: A Labour of Love’, in Janet Finch and Dunchie Groves (eds.), A Labour of Love: Women, Work and Caring, pp. 13–30. London: Routledge and Kegan Paul. Hans, Asha, and Anni Patri (eds.). 2003. Women, Disability and Identity. New Delhi: Sage Publications. Hughes, Bill et al .2005. ‘Love’s Labours Lost? Feminism, the Disabled People’s Movement and an Ethic of Care’, Sociology, 39(2): 259–275.

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Hughes, Bill et al. 2004. ‘(Inter)Dependence, Needs and Care: The Potential for Disability and Feminist Theorists to Develop an Emancipatory Model’, Sociology, 38(2): 331–350. Kittay, Eva Feder 1999. Love’s Labor: Essays on Women, Equality, and Dependency. New York: Routledge. Kittay, Eva Feder 2011. ‘Forever Small: The Strange Case of Ashley X’, Hypatia, 26(3): 610–613. Kittay, Eva Feder 2013. ‘Why We Should Care about Global Caring’, in Jo Bridgeman, Heather Keating, and Craig Lind (eds.), Regulating Family Responsibilities. UK: Ashgate Publishing Limit. Kröger, Teppo 2009. ‘Care Research and Disability Studies: Nothing in Common?’, Critical Social Policy, 29: 398–420. Morris, Jenny 1993. Independent Lives? Community Care and Disabled People. Basingstoke: Macmillan. Noddings, Nel 1995. Caring: A Feminist Approach to Ethics and Moral Education. Berkeley: University of California Press. Oliver, Mike 1989. ‘Disability and Dependency: A Creation of Industrialized Societies’, in Len Barton (ed.), Disability and Dependency. London: Routledge-Falmer. Ryan, Sara, and Katherine Runswick-Cole. 2008. ‘Repositioning mothers: mothers, disabled children and disability studies’, Disability & Society, 23(3): 199–210. Sevenhuijsen, S. 1998. Citizenship and the Ethics of Care. London: Routledge. Shakespeare, Tom 2006. Disability Rights and Wrongs. London and New York: Routledge. Silvers, Anita. 1997. ‘Disability Rights’, in Ruth Chadwick (ed.), The Encyclopedia of Applied Ethics. San Diego: Academic Press. Singh, V. and Anita Ghai. 2009. ‘Notions of Self: Lived Realities of Children with Disabilities’, Disability & Society, 24(2): 129–145. Strauss, Anselm, and Juliet Corbin. 1990. Basics of Qualitative Research: Grounded Theory, Procedure and Techniques. Newbury Park, CA: Sage. Thomas, Carol. 2007. Sociologies of Disability and Illness: Contested Ideas in Disability Studies and Medical Sociology. Basingstoke and New York: Palgrave Macmillan. Tronto, Joan. 1993. Moral Boundaries: A Political Argument for an Ethic of Care. London: Routledge. Twigg, Julia. 1999. ‘The Spatial Ordering of Care: Public and Private in Bathing Support at Home’, Sociology of Health and Illness, 21(4): 381–400. Ungerson, Claire. 1990. Gender and Caring: Work and Welfare in Britain and Scandinavia. London: Harvester Wheatsheaf. Vasey, Sian. 2001. The Rough Guide to Managing Personal Assistants. London: National Centre for Independent Living. Voysey, Margaret. 1975. A Constant Burden: The Reconstituion of Family Life. London: Routledge. Williams, Fiona. 2001. ‘In and beyond New Labour: Towards a New Political Ethics of Care’, Critical Social Policy, 21(4): 467–493.

Part III

The ‘myth’ of conflicting rights A critique of the Indian state

12 India’s education policy and failures of empathy Harsh Mander

In the epic Mahabharata, Eklavya, a tribal boy, learns to become a finer archer than even Arjun, the most accomplished archer of the five Pandava princes, merely by secretly observing the guru, Dronacharya, as he trains the princes in the use of weapons. But when Eklavya reveals himself to pay homage to his teacher, he is commanded by Dronacharya to sacrifice his right thumb, so that he may never surpass any prince. This story, which brings to focus the savagery of caste barriers, continues to have painful relevance in contemporary India. The accident of a child’s birth – an accident that Rohith Vemula reminded us could be fatal – still determines a child’s destiny, whether she will be able to study, in what kind of school and for how long. And elite schools in India stubbornly resist entry to children born in disadvantaged families. Eklavya is a painfully contemporary story. The richest families in India send their children overseas, to the world’s best schools and universities. Next come the children who are raised in elite, exclusive private schools. Children from the lower middle class and poorer urban areas can, at best, aspire to municipal schools, which typically have far inferior outcomes. This bars them from admission to better colleges, and they cannot afford the fees of private universities. Rural children may be crammed into unequipped classrooms, with one or two teachers – often absent, poorly trained and monitored. And, of course, the homeless, migrant, working and disabled child may never see the inside of a school and will remain trapped in the hopeless poverty of her parents. Education in India has profoundly failed to open up avenues of social mobility in the way it has in many other countries. Instead, the education system in this land actually closely mirrors the vast inequalities of society and reinforces them further. If you are born into a Dalit, tribal or Muslim household or are disabled, there are much higher chances that you will not enter school, or if you do, you will face discrimination and drop out early; you will also have far fewer chances than other children to reach high school and enter college. If you are a girl among all of these groups, your

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chances would be even slimmer. Among children between the ages of 6 to 13 from Dalit, tribal and Muslim households, 5.96, 5.9 and 7.67 percent respectively are out of school, compared to 2.67 percent for the remaining population (SRI 2009). In other words, children from these socially deprived communities are two to three times more likely to never enter school compared to other children. Likewise, fewer children from these groups complete schooling: 56 percent of Dalit and 70.9 percent of tribal children drop out of school by Class 10 compared to 49.3 percent for the overall population (GOI 2012). The Sachar Committee – appointed in 2005 by the Prime Minister Manmohan Singh to map the socio-economic status of Muslims in India – found that 25 percent of Muslim children aged 6 to 14 had either never attended school or had dropped out (GOI 2006). UNESCO reports that in 2005, 28 percent of Muslim children had less than two years of schooling; 33 percent had less than four years; and the mean years of schooling was also lowest for Muslims – 6.11 years against an average, for all children, of 7.29 years (UNESCO 2005). A later investigation by the principal author of the Sachar Committee Report, Abusaleh Shariff, found that for the period between 2004–2005 and 2009–2010, improvement in rural literacy, compared to urban, has been higher for all social groups except Muslim OBCs. Matriculation levels overall were also lowest amongst Muslims – years after the Sachar Committee recommendations were made (Human Rights Watch 2014). In the India Exclusion Report 2013 brought out by the Centre for Equity Studies (CES), we focused a major segment on school education.1 In 2009, the Parliament passed the Right to Free and Compulsory Education Act 2009 – hereafter called the RTE 2009 – guaranteeing every child the right to free and compulsory education up to the age of 14 years, and laid down standards for every public-provided school. The moral case for such a public duty lay in the grim and dark reality of millions of children being deprived of education due to myriad reasons and the inequities and poor-quality education which dogged those socially and economically deprived children who did join school but could not remain in it. The CES report establishes why India’s children need the right not just to free and compulsory but also equal education. The report notes that although it is officially reported today that enrolment in elementary schools is nearly 100 percent, sizeable numbers of children who are completely invisible to the state remain neglected. UNESCO reports that in 2011, 1.674 million children were out of school, as were 20.270 million adolescents in the same year (UNESCO 2014b: 353, 369). The India Exclusion Report observes how the invisibility of children out of school is particularly remarkable for one category: urban street children who are physically visible to policymakers every day. Additionally, an estimated 13 million childhoods are stolen in

India’s education policy and failures of empathy 321 farms and factories, eateries and domestic workplaces. There are 100 million migrant workers, and many children who migrate with their families suffer interrupted and abruptly terminated schooling. In conflict zones, children often cannot attend school because school buildings are occupied by security forces, because there is general insecurity or because parents have lost their lives or have disappeared. In some cases, children have also been recruited as soldiers. Children of sex workers or of parents living with HIV/AIDS and leprosy, as well as children from nomadic and de-notified tribes, also face severe barriers to schooling. The educational accomplishments – including literacy, school enrolment and retention – of women and girls, Dalit, tribal and Muslim children, and children with disabilities, have all improved over the last decade, but all still remain well behind the general population. Fewer, but still not insignificant, numbers of these children never enter school. But for those who do, as the report indicates, the experience is often one of humiliation and discouragement. Large numbers of children battle homelessness, stigma, violence and hate, and many more continue to perform labour meant for adults instead of attending school. But as our report demonstrates, even among those who do enter school, millions of children, born into disadvantaged castes or stigmatized faiths, or with disabilities, suffer humiliation and neglect within the classroom. Dalit children report that they are made to sit separately during classes or during meals and are compelled by their teachers to perform humiliating chores like cleaning toilets; they also report disrespect and unjust punishment at the hands of their teachers. The India Exclusion Report finds: With regard to SC or ST children, teachers also suggest that they do not need to study well and attain good marks, because the government has already made reservation provisions for them in education and employment. Teachers perpetuate caste-based discrimination by questioning the value of education for children from ‘low’ castes who they (teachers) believe will move on in life only to undertake menial, traditional caste-based occupations. Teachers stereotype Muslim students as children who will gravitate towards violence and terrorism in the future, and it is therefore believed that investment in education for them is worthless. A similar attitude affects children with disability. Government expenditure on children with special needs, teacher time and learning for them is all considered to be an undue burden on the state. Principals and teachers often complain that disabled children are taking away the space and opportunity of others (CES et al. 2014). The CES report observes that teachers tend not to look at classroom diversity as a learning resource but as a limitation and distraction and a drain on teachers’ energy and resources. For children who spend a greater part of the day in school, experiences of discrimination, neglect, active

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biases or prejudices and ill treatment from teachers and peers often result in them dropping out or frequently absenting themselves out of fear or psychological hurt. In an atmosphere where their identity, based on caste, religion, tribe, gender or disability, is mocked, the school, instead of a nurturing space, becomes a place that is feared. Often the internalization of prejudices affects the psyche of children to arouse feelings of self-blame and to limit their participation, aspirations and potential, thereby denying them the equal chance at growing diversely at par with others. The perception that they lack opportunities . . . acutely constrains their opportunities and agency. This translates into unequal learning achievements and social capital in future and further interlocks with the marginalized backgrounds of their parents, who are often unable to assist them in coping academically while simultaneously striving to earn a livelihood (CES et al. 2014). Nagraj Manjule’s 2013 Marathi film Fandry, which means Wild Pig, should be compulsory viewing in every school and college. No other motion picture I have seen evokes the torment and shame of growing up as a member of a stigmatized caste in contemporary India as poignantly as Fandry does. A teenaged boy, Jabya, belongs to a Dalit family which has been forced over generations into the despised caste vocation of rounding up wild pigs. Jabya develops a secret love for an upper-caste classmate. He watches her in wordless devotion as she studies at her bench in class or walks the dusty pathways of the village. She is not deliberately unkind to him, but, as a boy from a lower caste, he hardly exists in her consciousness. The boy still hopes that one day she will return his affections and dreams endlessly of it. But in a heart-rending climax, she joins her classmates in mocking Jabya when he is forced to help his family capture some wild pigs in the village. As his fellow students watch him undertake work which they regard as most unclean and humiliating, he painfully realizes that he may have the right to study today alongside other children, but the stubborn inequities of caste still mark him as separate and lowly because of the accident of his birth. In a study of rural untouchability in 10 states a few years ago, in which I worked closely with four leading social scientists and several Dalit field activists, we found that in one in three and, sometimes, even one in two rural schools, even today, Dalit children are forced to sit separately at the back of the class and eat from separate plates in separate lines from other children (Shah et al. 2006). Some teachers even ask these children to clean school floors and toilets, chores never assigned to upper-caste children. Fandry offers, in Jabya’s longing and ultimate humiliation, an affecting glimpse of what transpires in the hearts and minds of children who study beside children marked as socially superior because of their caste. ‘Despite the gravely adverse consequences’, the writers of the report conclude, the resilience of school children across the country, to brave all

India’s education policy and failures of empathy 323 odds and walk or cycle to school needs to be applauded and encouraged by initiating immediate reform (Shah et al. 2006). Marathi Dalit poet Waman Kardak writes: Send my boy to school Lord and Master I tell you Send my boy to school We may be terribly poor Famine may knock at our door I’ll see that he gets to school Send my boy to school . . . If my clothes are torn, what do I care? My boy must never go bare What use do I have for a jewel? Send my boy to school . . . (in Dangle 2009) In the summer of 2013, 22 children in Chhapra in rural Bihar died after eating school meals in a government school, an event which briefly shook the public conscience. But the incident could have happened almost anywhere in the countryside and probably does, but invisibly, on a smaller scale. For many reasons, this was a tragedy waiting to happen. This calamity was the outcome of something much larger than mere local neglect by junior officials as many commentators described it. It was the result of how poorly welfare programmes for India’s poor, even our children, are organized, resourced and monitored. The primary school in question did not have premises of its own and was being run in a local government office building. There was no store; therefore rations for school meals could not be purchased in bulk and safely stored. There were just two teachers to teach five classes of children; one was on leave, and the only one holding the fort was a low-paid, unqualified para-teacher. She purchased the provisions required for each day’s meals from a local store. A container in which cooking oil was stored had possibly been used earlier to keep insecticides. It was not she who was culpable for the children’s tragic deaths. She was doing her best in a system which places no value on her and the indigent children she taught and fed. School meals across the country are grossly under-resourced. Allocations for cooking costs have not been enhanced despite runaway food and fuel inflation in recent years. Many schools have not been invested with the basic infrastructure for cooking and storage, utensils, a clean eating space and potable water. Cooking staff is poorly

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paid. For a programme as scattered as this, the most effective systems of monitoring are always those which are also decentralized. We need systems of social audits, we need to hear the voices of children, and effective systems of regular monitoring by parent committees, school management committees and local panchayats. Much of this would entail additional public money, but also far greater political prioritization, administrative will and the willingness to be accountable. There should be a greater clamour to muster both the resources and will required for ensuring good-quality equal education for all children regardless of their birth. Because what can be a higher priority for public investment and attention than the health and futures of our children? All our children. I will argue in this chapter that our failures to invest sufficient public resources in providing high-quality education to children born into disadvantage stems not from an absolute shortage of public resources, but instead from a failure of public empathy, a profound indifference among people of privilege and public officials and a cultural comfort with inequality, and ultimately the malfunction, indeed the collapse, of the practice of fraternity that is guaranteed in the Indian Constitution. The opposition to larger public spending on state-delivered education and healthcare is couched sometimes in ideological terms. Arvind Panagariya, who is the Deputy Chairperson of the Niti Aayog which replaced the Planning Commission after the BJP-led government assumed power in India in 2014, explains, ‘Our differences with (Amartya) Sen . . . extend to how the government should deliver nutrition, education and health to the citizenry’. Sen firmly believes that the state must directly deliver food, employment, education and health through its elaborate bureaucratic machinery. So he passionately advocates the food security bill and employment guarantee scheme and rejects cash transfers, vehemently opposes education vouchers in favour of government-run schools and slams the door on private health services. Under Track-II reforms, we advocate an approach that empowers beneficiaries instead of public providers. We argue that revenues must be redistributed to the beneficiaries through cash, school vouchers and health insurance, allowing them to decide whether they want to buy food, education and health from private or public providers.2 Other commentators are even more withering. Sadanand Dhume describes in the Wall Street Journal India’s Right to Education act as a policy that has sunk India’s already abysmal math and reading scores (teachers aren’t allowed to fail students) (Dhume 2013). The basic premise of many visceral critiques is that a morally and intellectually bankrupt government is desperately using the honest taxpayers’ hard-earned money to bribe impoverished voters with freebies. Economist Pranab Bardhan, one of the

India’s education policy and failures of empathy 325 minority of prominent economists who spoke out against this dominant pro-market discourse, protested this description of public moneys being spent on anti-poverty programmes as the ‘politics of dole’. ‘Most of the subsidies of the Indian government’, he pointed out, are actually to the business class and middle and upper classes, but that is not regarded as dole. Giving help to the poor for education, health, food or employment is called dole, and to me, this is really tendentious. This serves to distract from the huge amount of subsidies and handouts of the government to betteroff people in the form of petroleum subsidies, diesel, fertilizer, LPG and several other subsidies. There are estimates that suggest that the amount of subsidies for better-off people is about three to four times more than the money the government spends on anti-poverty programmes (‘Dirty D-word and Unspoken Subsidy’ 2013). Jean Dreze similarly points out that the ‘mythology of social policy’ fostered by a section of India’s media hides the truth that ‘if anything, India is among the world champions of social underspending’ (Dreze 2014). Economist Sabina Alkire, in an article published in The Hindu, offers a telling global comparison. She points out that India has a higher proportion of stunted children than nearly any other country on earth yet spends half the proportion of GDP that lower-middle-income Asian countries spend on social protection and less than one-fifth of what high-income countries in Asia spend.3 In lower-middle-income countries, social protection spending is 3.4 percent of the GDP. India’s is a mere half of that at 1.7 percent, and even this low level is reached largely because of the rural jobs guarantee programme that ensures 100 days of paid work to all poor households in villages. The average for social welfare expenses in upper-middle-income countries is 4 percent of the GDP and 10.2 percent of the GDP for high-income countries. Japan spends 19.2 percent and China 5.4 percent. Even Singapore spends more than twice as much as India, at 3.5 percent of its GDP. Further, it is not right to assume that the pot of public revenues is fixed and given – that if we spend more on food, we will either have to pull back on other important expenditures or raise deficits. There is a third option, and that is to raise our tax revenue. In 2012–2013, the revenue lost because of exemptions on customs and excise was worth 5.7 percent of the GDP (Bandopadhyay 2013). UNESCO estimates that if 20 percent of this had been spent on education, the sector would have received an extra US $22.5 billion in 2013, an increase of 40 percent over what the government was then spending (UNESCO 2014b: 10). India’s former finance minister Chidambaram has himself admitted that, ‘In 2011–2012, the tax–GDP ratio was 5.5 percent for direct taxes and 4.4 percent for indirect taxes. These ratios are one of the lowest for any large developing country and will not garner adequate resources for inclusive and sustainable development’

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(italics mine) (Oxfam International 2014). But, as pointed out by one of India’s most insightful commentators on poverty and the agrarian crisis, Palagummi Sainath, Chidambaram did nothing to correct that by raising revenue and instead balanced his books only by curbing expenditures in the social sector (Sainath 2013). We need to demand greater equity and integrity in India’s efforts at taxation rather than a moratorium on more public spending for the poor. We also need to weigh the costs of not making much larger public investments in the nutrition, health and education of the poor. These are the enormous effects of poor education, hunger, preventable diseases and deaths on the morale and productivity of several hundred million working people and growing children. There are also many who believe that education will reform best if the public sector gives way to private schooling. Even poor families are opting for private schools because public schools just do not function. But a truly egalitarian educational system can be built only with a common school system in which children in a neighbourhood – rich or poor – attend the same publicly funded school. Private education will only enhance inequality. This is the experience globally. Max Lawson of Oxfam observes that the World Bank Group has in the past been a great champion of universal free primary education, but it has now started to get much more excited about private education instead, promoting this in Pakistan and elsewhere. Yet UNESCO research shows that for the poorest 20 percent of families in Pakistan, sending all children to a private school would cost approximately 127 percent of that household’s income (Lawson 2014). The situation is not very different in India. Philosopher and public intellectual Noam Chomsky remarked that the idea of social protection is basically the idea, simply, that we should take care of each other. There can be no better encapsulation of the idea of the good state, a state which must be founded on the idea of social solidarity, on the continuous mindfulness of the obligation of the state to care for every person, weak and strong. But Chomsky goes on to say that we live in times when this is considered a profoundly ‘subversive’ idea. For many today, this idea of social protection – or the duty of social caring – is indeed a dangerous philosophy which must be crushed at all costs (Chomsky 2011). Those opposed to this idea are either people who believe that markets by themselves are both necessary and sufficient to end poverty, hunger and want or those who restrict their idea of solidarity to narrow notions of identity, whether of race, ethnicity, community or caste or any other. These two ideas often converge, as in India’s political arena today, which renders the opposition to agendas of social protection and the caring state even more adamant and powerful – and for some, so much more charismatic.

India’s education policy and failures of empathy 327 It is not in the nature of markets to care for people who are not useful in a direct utilitarian way as producers or consumers, or to those who do not conform. Popular philosopher Michael Sandel reminds us of the vital difference between a market economy and a market society. ‘A market economy is a . . . valuable and effective tool for organizing productive activity’. A market society is different, he declares, A market society is a place; it’s a way of life where market relations and market incentives and market values come to dominate all aspects of life. And that’s my worry. Without quite realizing it, over the past three decades, we have drifted from having a market economy to becoming a market society, a society where just about everything is up for sale. (Sandel 2012) In the age of the hegemony of markets, this is what the India of the middle class has become, a market society. We are easily persuaded when the state tells us that it simply does not have the money to ensure that every child gets nutritious food and good schooling; that old people do not have to sleep hungry; that homeless people do not have to sleep out in the cold; and that children do not have to die only because they cannot afford healthcare. These are people for whom markets can never work. They enter the already crowded zone of our collective amnesia and we are unconcerned that neither markets nor the state nor even in most cases non-state public action are reaching them. We are being convinced that the markets will get to them one day, and until then, they can do nothing better than wait and suffer patiently, without complaint and without resistance. Elie Wiesel, Holocaust survivor and a peace worker who lost both his parents and sister in Auschwitz, reminds us that the opposite of love is not hate. The opposite of love is indifference.4 And while I am dismayed by reports of Wiesel’s fierce opposition to Palestine, it is to these luminous words that I turn for an initial, tentative exploration of the possibilities of love, empathy and public compassion being fashioned into instruments of social and political resistance, justice and, indeed, social transformation. In the strange new ‘social common sense’ cultivated for our times in new India, it is the rich and the privileged who are being led to feel oppressed and short-changed by the poor rather than the other way round. The dominant narrative is: ‘We work hard and earn an honest living, and then we are taxed to supply freebies to the undeserving poor, rather than encouraging them to work hard and pull themselves up by their own efforts’. Likewise, it is the religious majority which feels persecuted by the minority, rather than the reverse: ‘Cynical political parties cultivate religious minorities as “votebanks”, and in return they are soft on terror, the mafia, their regressive

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clerics, religious conversions by fraud and bribery, and on their proclivity to breed large families’. The Preamble to India’s Constitution identifies four pillars of constitutional values: liberty, equality, justice and fraternity. Each has been compromised in many ways in India’s journey as a republic, but what is often least acknowledged is the dangerous fraying of our fraternity. In an interview he gave in the middle of 2013, Noam Chomsky observed that India’s ‘misery and oppression are so striking, much worse than in any country I have ever seen. And it is so dramatic’ (Borpujari 2013). Tellingly, Chomsky also noted, What is really striking to me . . . is the indifference of privileged sectors to the misery of others. You walk through Delhi and cannot miss it, but people just don’t seem to see it . . . they put themselves in a bubble and then they don’t see it. (Borpujari 2013) There is indeed a startling absence of compassion among a majority of well-to-do Indians towards the millions who have no advantages of birth to shield them from hunger, oppression, violence, squalor and humiliation. A dispassionate external observer would be bewildered by middle-class India’s capacity to look away when confronted with enormous injustice and suffering, by our society’s cultural comfort with inequality. That the accident of where a child is born still determines her chances in life almost irrevocably – whether and how long she would be able to study and with what quality, the vocations open to her, the limits of her wealth and social standing, even her most basic well-being and dignity – is widely considered unproblematic, even legitimate. Many people of wealth and privilege are convinced that they have what they do because they deserve it and that those who are in want and need also deserve their lot – because of laziness, addiction to drink, lack of education, lack of ambition, low capabilities in general and the profligate breeding of large families. Indifference is primarily born out of the failure and the fatigue of empathy. Empathy requires both a leap of imagination – to imagine how the other feels – and solidarities of feeling – to feel the suffering and humiliation of the other as though they were one’s own. In other words, empathy has both a cognitive and affective element: it engages both the mind and the heart. Empathy tends to flow more naturally when the suffering person is someone I can relate to and understand, someone whom I feel is similar to me in some essential, relatable way, because I can then better imagine what the other person is feeling. Empathy breaks down when I can persuade myself that the ‘other’ is, in some ways, not like me, not fully human in the way I and the people of

India’s education policy and failures of empathy 329 my family, my community, my caste, my gender, my race and, indeed, my sexual preferences are. I can do so when I refuse to see or acknowledge that people who are of a different gender, caste, class, religion, sexuality or culture from me are essentially human in the same way as I am, when I am in the sway of normative frameworks and politics which cultivate difference and foster indifference. Pratap Bhanu Mehta speaks of the ‘equality paradox’ – we don’t care because we are unequal, and because we don’t care inequality will persist (Mehta 2012). Empathy dies when one child eats, plays and studies without a care in a middle-class home and another is made to slave 12 hours a day or lie unprotected on the streets or sleep on an empty stomach. This happens only because this other child is not perceived to be a child who is like one’s own. We do not care that herding cattle and weaving carpets, on city wasteheaps, at traffic lights, in roadside eateries, in farms and in factories, in brick kilns and coal mines, in brothels and in our homes, children of the poor work at an age when our own are in school or at play. In the world’s largest democracy and fastest-growing economy, millions of children continue to be trapped in toil and early marriage, ill health and hunger, only because of the accidents of their birth. Of the many injustices that have scarred India for much too long, the most unconscionable are those of unequal childhoods combined with the indifference of people of privilege. What is unconscionable is not just our collective acceptance of such diverging destinies of children merely because of the accident of where they are born. I find astounding that the law in India for very long permitted most children of any age to work, except in a relatively small band of prohibited ‘hazardous’ occupations, such as in foundries, firework factories, mines and kilns. Even these limited prohibitions were rarely enforced; the entire country reports no more than a few thousand prosecutions every year and even fewer convictions. There was no ban on children working, for instance, in farmers’ fields, inhaling toxic pesticides and chemicals – agriculture, in fact, accounts for over 70 percent of waged child workers; nor on children in rag picking, tea stalls or domestic work. The 2001 census reported over five lakh children working below the age of 5 and 13 million children in various forms of work. Child rights activists argued that the numbers are much larger, because every child who is not in school is a hidden child worker, rearing younger siblings, tending the home or helping parents earn. The official explanation of why it is acceptable for children to work was summarized in the Gurupadaswamy Committee Report, 1981: ‘as long as poverty continued, it would be difficult to totally eliminate child labour and hence, any attempt to abolish it through legal recourse would not be a practical proposition’. This ‘pragmatism’ continues to dominate government’s

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stand on working children. Even many progressive activists and thinkers are agnostic about a complete ban on child labour, because they see few options for an impoverished family than to send their children to earn rather than to school. I have no doubt that desperation drives indigent parents to send their children to work at a young age. Under no circumstances, therefore, should any law penalize parents for the hopeless hunger, unemployment and debt in which they are trapped. But this cannot be an alibi for the state, freeing it from its duty to ensure that children are not in work but at school. Child labour is not just the outcome of poverty but also its cause. It is only by escaping work into school that a child has any hope of escaping the drudgery and want of her parents and grandparents. Child work takes a permanent toll on a child’s body, mind and spirit. Without education, chances are that a landless agricultural worker’s child will remain a labourer and a rag picker’s child a rag picker. And the experience in districts where child work is effectively eliminated is that when child workers are unavailable, adults are employed instead, getting higher wages than children, and the entire family is better off than when children worked. An even more worrying defence of child work by government departments is that banning child labour would make several Indian exports uncompetitive, because adults would have to be paid more for the same work. Empirically, only a small proportion of Indian exports employ child labour. Even if they did not, surely India’s economic growth cannot be built on the thin shoulders of our working children. But there is worrying evidence that many companies are increasingly relying on work contracted to households, which evades their legal responsibilities to workers, and spreads a legal shroud on employing child workers within homes. I am privileged to work with a few hundred children who only a few years ago begged in temples and dargahs, recycled trash in trains or waste dumps, or picked pockets. We knocked on the doors of many schools, but only a few opened their gates to them. Today they already excel among their classmates, sing, dance, play and enjoy a childhood long denied to them. When they grow into adulthood, they will not beg or pick rags or sleep on city pavements as their parents did. But even the incomplete restrictions on child labour in the law have been diluted by recent amendments to the law related to child labour. The two major amendments to India’s child labour law on the face of it seem welcome. These amendments prohibit all work, hazardous or otherwise, for children under 14, who now also enjoy the constitutional right to free and compulsory education. And for adolescents between 14 and 18 years, whose labour was entirely lawful until now, the law prohibits their employment in work that is scheduled as hazardous.

India’s education policy and failures of empathy 331 Yet on closer scrutiny, the reality of what is being offered is the reverse of what appears on paper. The ban on hazardous adolescent work is accompanied by changes in the schedule of hazardous work in the statute, bringing these down from 83 prohibited activities to only 3. Apart from mining and explosives, the law only prohibits processes that are deemed hazardous under the Factories Act 1948. In other words, the amended law prohibits only that child work which is considered hazardous for adult workers, without recognizing the specific vulnerabilities of children in their growing years. Much more damaging, however, is the caveat in the amended law that permits even children under 14 years to now work in non-hazardous ‘family enterprises’ after school hours and during vacations. The family is defined to include not just the child’s parents and siblings but also the siblings of the child’s parents. And a family enterprise includes any work, profession, manufacture or business in which any family member works along with other persons. In effect, what this proviso accomplishes is the very opposite of what it claims to do. Instead of ending child labour, it actually makes lawful once again a large part of child work that was earlier unlawful. It is estimated that around 80 percent of child labour is in work with family members. This is in farms, forests, home-based work such as bidi rolling, carpet weaving, making of bangles and handicrafts, home-based assembly tasks, domestic work, eateries, roadside garages and street vending. Child rights activists had fought long and hard to compel governments to include many of these occupations in the statutory list of hazardous occupations, thereby lawfully prohibiting child work in these. But by the double whammy of legalizing child participation in non-hazardous ‘family enterprise’ work and drastically trimming the list of hazardous occupations, in effect the government has again legalized the bulk of child work. Reopening the floodgates for child labour by these amendments is part of a larger package of weakening labour protections for enhancing labour market flexibility to facilitate higher corporate investments. The quarter century of economic reforms has witnessed the steady dismantling of factory floor manufacture by organized adult workers into a preference for unorganized migrant, adolescent and child workers and contractual and home-based production systems. Employing migrants, adolescents and children helps create an army of submissive low-paid workers. I recently witnessed for instance the plight of thousands of adolescent girls who are confined to jail-like hostels as they work illegally long hours in spinning mills in Tamil Nadu. We may argue that working with one’s hands is integral to a full education. I agree that it is. But in that case, the opportunities and the obligation

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to work must surely lie with children of privilege at least as much as it does with children of disadvantage. Children enrolled in schools but rising from disadvantage already face many barriers compared to more privileged students. They may be poorly nourished; be first-generation learners; have no place for study in their homes; and be unable to afford tutors. For many, school enrolment is soon reduced to a token entry in government records. Others are forced to drop out early. It is they who would be further disadvantaged by this amendment, by lawfully working after school instead of playing and dreaming (or studying for the next day in school). ‘We don’t want to redraw the social fabric of Indian society where children learn by participating in work with family elders’, a government official is quoted to declare. Another senior officer I spoke to asked, ‘What is wrong with this? Should not the son of a lohar or ironsmith learn to be an ironsmith, or of a weaver to be a weaver?’ My answer is – why indeed should the son of a blacksmith learn to be a blacksmith – or a rag picker’s daughter to pick waste? Why can’t he learn to be a poet and she a nuclear scientist if these are where their dreams soar? And why can’t your son or my daughter learn to be an ironsmith or a weaver? And secondly, when your child and mine come home from school, they rest, play, watch television, receive tuitions, do their homework and in general enjoy the delights of carefree childhood. During their vacations, we plan for them travel, recreation, leisure reading, sports and hobbies, the best that money can buy. They never spend these post-school hours, weekends and holidays labouring in farms and shops, in embroidery or weaving, cleaning dishes and sweeping floors, making bidis, moulding bricks and sorting waste. Why then are we so comfortable with such different childhoods for children born elsewhere? Why is it all right for children of the poor to labour after school, and for our children to rest and play? And why must workingclass children be trained specially in the trade of their parents and children born to the middle classes exempted from all working-class responsibilities and options? This is nothing if not the idea of caste, which remains deeply embedded in the world-views of the upper-caste middle classes. The social common sense persists that children of the poor and disadvantaged castes basically need to be trained not to work their minds but their hands; and upper caste and class children for intellectual vocations. The alternate democratic idea that the potential for intellectual achievement is likely to be evenly distributed within all social, economic and religious groups has not permeated. We must indeed argue for the dignity of labour. Let us conduct a social debate about including work with one’s hands as an intrinsic part of school education. This was an idea which Gandhi favoured in his nai taleem. But

India’s education policy and failures of empathy 333 for this let first children of the rich labour with their hands during or after school hours. Let them sweep floors and toilets, mould iron and bricks, weave cloth. I think this would be a magnificent education for them. Only then would I be content in endorsing these exertions for children of poor and low-caste parents. These amendments, sadly passed unanimously by India’s lawmakers, are one more spur to India’s ancient tradition of unequal childhoods. Children’s bodies and minds will continue to be trapped in the rigours and drudgery of toil, because their dreams are still barred in our land from taking flight. Amartya Sen, in The Idea of Justice, makes an important linkage between human empathy – combined with reason and the love of freedom – and the pursuit of justice. ‘We could have been creatures incapable of sympathy’, he says, unmoved by the pain and humiliation of others, uncaring of freedom, and – no less significant – unable to reason, argue, disagree and concur. The strong presence of these features in human lives . . . does indicate that the general pursuit of justice might be hard to eradicate in human society, even though we go about that pursuit in different ways. (Sen 2009: 415) The existence of empathy in human nature provides a clue to why, even though injustice has been a feature of all human societies throughout history, every human society has also seen stirrings for greater justice. Closely related to the idea of empathy is that of compassion. The Dalai Lama – one of the living men in the world I most admire – often stresses the highest value of being a compassionate human being, one who is moved by the suffering of others. I am most drawn to the idea of what I describe as egalitarian compassion, because it does not place the giver on a pedestal above the receiver. The idea is that of two human beings, each equal in dignity and worth, but one in difficult circumstances, to whom the other reaches out with care and – importantly – with respect. Compassion is constructed through feeling the pain of the other as one’s own. The related idea of empathy involves both the cognitive act of imagination, of understanding the feelings of another human being; and the emotional, of actually experiencing the feelings of another. Ideas of love, compassion, empathy and justice recur in most ethical systems, both religious and secular, in diverse language but often with common meanings. Sometimes an explicit linkage is also made, in the way Amartya Sen does, between empathy and justice. Socrates was once asked

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how long injustice would continue in the world. He replied that it would last as long as those who do not suffer injustice themselves do not feel the same pain and the same humiliation as those who actually endure injustice. In so doing, he underlines the importance of solidarity in struggles for justice. In the Hindu tradition, seeking justice is deemed essential to dharma – a comprehensive idea that includes duty and morality – although this same dharma also prescribes ritual injustice to persons deemed to be of the lower castes and gender, and for this it is a deeply flawed civilizational idea. Liberation theology nurtures the radical potential of Christ’s great compassion. In Muslim teachings, it is set down that ‘when injustice is law, resistance is duty’. Prophet Mohammed taught that the highest ethical duty of every human being who observes injustice is to resist it. At the very least, he enjoined, when you observe injustice, feel badly in your heart – which is nothing but empathy. The next higher level of duty is to respond not just from the heart but also the mouth, which means speaking out against injustice. The highest duty is to respond with one’s hands, to act against that injustice. Some scientists and philosophers believe that empathy is a uniquely human trait, inborn in human beings but also one which can be taught and nurtured. Equally, as we can learn empathy, we find that barriers can be constructed against the natural surge of empathy which would otherwise have arisen had it not been actively blocked. Hierarchies and the politics of difference are two of the most significant walls which can block out empathy from our minds and hearts. In drafting India’s Constitution, Ambedkar laid great stress not just on liberty and equality but also on fraternity. He said, ‘Fraternity means a sense of common brotherhood (and sisterhood) of all Indians – if Indians are seen as being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve’.5 He was convinced that ‘without fraternity, equality and liberty will be no deeper than a coat of paint’.6 Ambedkar dreamed of an India in which divisions of caste and religion would gradually fade away. However, it is fraternity which has been most forgotten in our Constitution. It is forgotten not just by those chosen to uphold our Constitution, it is lost even in our public and social life, in which the aggressive use of oppositional identities remains for most political parties the most reliable instrument to harvest votes with, and prejudice and inequality are produced and reproduced in our hearts and homes. The idea of fraternity is closely linked to that of social solidarity, which is impossible to accomplish without public empathy; the daily, lived realization that human beings who look different, wear different clothes, worship different gods, speak different languages, have different political persuasions, actually have exactly the same intrinsic

India’s education policy and failures of empathy 335 human dignity and experience the same emotions – dreams, hopes, despair, pain, happiness, anger, love, triumphs and defeats – that we do. As society pursues the goal – or mirage – of galloping economic growth, even with all of these caveats, it must care for everyone left out of this growth story. I believe that in a good society, people of every social class and identity should be involved in a huge public debate about what is the floor of human dignity, socially, below which no human being should be allowed to fall. For me, this is the floor of human dignity below which it is morally unacceptable for any human being, any human being, to have to live. We should build a new social contract in new and rapidly growing India that we seek a country – and world – in which no child will sleep hungry, no child will sleep under the open sky, no child will be sent to work instead of a school which is as good a school as for any other child her age, no person will be subjected to discrimination or violence because of her identity, no person will be denied free, good-quality healthcare and no old person will have to work or beg to live with dignity. We can debate the details and add to, delete or refine this list. But it is imperative that we have this public debate to build a social consensus on a minimum agenda of universal and equal education and universal social protection. This floor of human dignity should also become the yardstick against which the performance of every government of any political hue should be evaluated. It is through such a collective exercise that we will be able to build an India and a world which truly, actively cares for all, and which recognizes the intrinsic equal dignity of all persons, regardless of gender, class, race, nationality, caste, faith, sexuality and disability. I am convinced that this is not a utopian set of goals. Far from it, it is both achievable and imperative, within our lifetimes. But for it to be possible, we first need to reclaim the idea which Chomsky spoke of, that we owe it to each other as human beings that we all take care of each other (Chomsky 2011). It requires ultimately the kindling of empathy, of social caring, of the ideas of solidarity and fraternity.

Notes 1 Kiran Bhatty, Centre for Policy Research; Annie Namala, Centre for Social Equity and Inclusion; Archana Dwivedi, A. Nirantar and A. Sharma, Ambedkar University; Madhumita Bandyopadhyay, National University of Educational Planning and Administration; Farah Farooqi, Jamia; S. Anant, NEG-FIRE; Naaz Khair, Radhika Alkazi, A. Aastha, Subrat and Jawed, Centre for Budget and Governance Accountability; S. Hassan, A. Shah and A. Bhasin, Centre for Equity Studies. 2 Interviews of Amartya Sen and Jagdish Bhagwati by, respectively, Subhabrata Guha and Surojit Guha, The Times of India, April 30, 2014, http://

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timesofindia.indiatimes.com/home/lok-sabha-elections-014/news/Minor ities-have-reason-to-fear-Modi-Amartya-Sen-says-Gujarat-CM-has-visionof-where-he-willtake-us-Jagdish-Bhagwati-argues/articleshow/34392562. cms (accessed on 15 January 2014). ‘This Bill Won’t Eat Your Money’, The Hindu, July 29, 2013, www.thehindu. com/opinion/op-ed/this-bill-wont-eat-your-money/article4963938.ece (accessed on 23 July 2015). Elie Wiesel in an interview with Alvin P. Sanoff, ‘One Must Not Forget’, U.S. News and World Report, October 27, 1986. Constituent Assembly of India Debates (Proceedings), Vol. 11, http://164.100. 47.132/LssNew/cadebatefiles/C06121948.html (accessed on 18 January 2014). Constituent Assembly of India Debates (Proceedings), Vol. 11.

Bibliography Bandopadhyay, Sankhanath. 2013. ‘Tax Exemptions in India: Issues and Challenges’, Centre for Budget and Governance Accountability, New Delhi, www. cbgaindia.org/files/recent_publications/Tax%20Exemptions%20in%20 India.pdf. Borpujari, Priyanka. 2013. ‘What Is Striking in India Is the Indifference of the Privileged: Chomsky’, Tehelka, July 6, www.tehelka.com/what-is-striking-inindia-is-theindifference-of-the-privileged/ (accessed on 13 January 2014). Centre for Equity Studies (CES) et al. 2014. India Exclusion Report 2013–14. New Delhi: Books for Change. Chomsky, Noam. 2011. ‘The State-Corporate Complex: A Threat to Freedom and Survival’, Text of Lecture Given at the University of Toronto, April 7, www. chomsky.info/talks/20110407.htm (accessed on 17 January 2014). Dangle, Arjuna (ed.). 2009. Poisoned Bread: Translations from Modern Marathi Dalit Literature. Noida: Orient Blackswan. Dhume, Sadanand. 2013. ‘New Delhi’s Hunger Games’, The Wall Street Journal, June 20, www.wsj.com/articles/SB100014241278873233938045785 57050745156758 (accessed on 23 January 2015). ‘Dirty D-Word and Unspoken Subsidy’. 2013. The Telegraph, 30 December, www.telegraphindia.com/1131230/jsp/nation/story_17733538.jsp#. UtWj8tIW2tM (accessed on 14 January 2014). Dreze, Jean. 2014. ‘On the Mythology of Social Policy’, The Hindu, July 8, www.thehindu.com/opinion/lead/on-the-mythology-of-social-policy/ article6186895.ece (accessed on 15 January 2014). Government of India (GOI). 2006. Social, Economic and Educational Status of the Muslim Community in India: A Report, November, www.minorityaffairs. gov.in/sites/default/files/sachar_comm.pdf (accessed on 14 January 2015). Government of India (GOI). 2012. Statistics of School Education 2010–11, Ministry of Human Resource Development, http://mhrd.gov.in/sites/ upload_files/mhrd/files/SES-School_201011_0.pdf (accessed on 13 January 2014).

India’s education policy and failures of empathy 337 Human Rights Watch. 2014. They Say We’re Dirty: Denying Education to India’s, Marginalized, www.hrw.org/sites/default/files/reports/india0414_ForUpload_1.pdf (accessed on 15 January 2015). Lawson, Max. 2014. ‘Heads of IMF and World Bank Must Support a Global Goal to End Extreme Inequality’, Huffington Post, April 9, www.huffingtonpost. co.uk/maxlawson/global-banks fight-poverty_b_5116582.html (accessed on 15 January 2015). Mehta, Pratap Bhanu. 2012. ‘Why We Don’t Talk about Inequality and How to Start Again’, Cetri, October 16, www.cetri.be/spip.php?article2792&lang=fr (accessed on 12 January 2014). Oxfam International. 2014. ‘No Effort in Budget to Close the Gaps’, November 22, www.oxfamindia.org/news/134 (accessed on 22 January 2015). Sainath, Palagummi. 2013. ‘The Feeding Frenzy of Kleptocracy’, The Hindu, March 16, www.thehindu.com/opinion/columns/sainath/the-feedingfrenzy-of-kleptocracy/article4513159.ece (accessed on 15 January 2014). Sandel, Michael J. 2012. ‘What Isn’t for Sale?’, The Atlantic, February 27, www. theatlantic.com/magazine/archive/2012/04/what-isnt-for-sale/308902/ (accessed on 13 January 2014). Sen, Amartya. 2009. The Idea of Justice. New York: Penguin Books. Shah, Ghanshyam et al. 2006. Untouchability in Rural India. New Delhi: Sage Publications. Social and Rural Research Institute (SRI). 2009. All India Survey of Out-ofSchool Children of Age 5 and in 6–13 Years Age Group. Ministry of Human Resource Development, www.educationforallinindia.com/Survey-Reportof-%20out-ofschool-children-IMRB-MHRD-EDCil-2009.pdf (accessed on 13 January 2015). UNESCO. 2005. World Inequality Database on Education (WIDE), www. education-inequalities.org/countries/india (accessed on 14 January 2015). UNESCO. 2014a. Teaching and Learning: Achieving Quality for All, www. unesco.org/new/en/education/themes/leading-the-international-agenda/ efareport/reports/2013/EFA Global Monitoring Report 2013–14 (accessed on 15 January 2014). UNESCO. 2014b. Teaching and Learning: Achieving Quality for All. Paris: UNESCO, http://unesdoc.unesco.org/images/0022/002256/225660e.pdf (accessed on 15 January 2015).

13 The ‘right’ music Caste and ‘classical’ music in south India Krishna Menon

I. Introduction: rights, democracy and music Democracy, social exclusion and rights in contemporary India maybe studied from various entry points, including the vantage point of the somewhat esoteric world of classical music of south India. Who could sing, who could compose and what was considered classical? Did everyone have access to the musical heritage, and would everyone’s music be allowed space in the ‘glorious’ traditions of classical music? The world of ‘classical music’ in south India is the context of inquiry here, and the question being asked is do all sections of society have the right to access, participate in and perform this music? In an unequal and hierarchical society, all dimensions of life are arranged unequally, including the music. The attempt here is to examine how the institution and practice of caste constructed, restricted and recast the world of classical music in south India. ‘We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy . . . castes bring about separation in social life’ (Ambedkar 1949). The key phrase from Ambedkar’s last speech delivered to the Constituent Assembly of India in the winter of 1949 is ‘separation of social life’. He is suggesting that unless different groups share social experiences and social situations, social democracy cannot be built, and without that a political democracy would be redundant. Caste-based inequality has a way of permeating all aspects of the social fabric including the arts. In south India it resulted in music and dance being divided along caste lines. The question to ask is ‘whose music is it?’ Who determines the aesthetic standards for a society, and do all sections of society have the right to participate in the evolution of artistic and aesthetic imaginations? Music is a very important part of social life and creates social bonds and shared memories. Musical gatherings, music performances and performance ambience and etiquette, music compositions, music training and

The ‘right’ music 339 appreciation have to a very great extent been influenced and constructed by the institution of caste in south India. However, when caste has divided society, is such a shared experience possible? How might this impact the nature of social democracy?

II. Cultural rights, exclusion and the arts At the outset a nuanced distinction needs to be made between the formal meaning of rights and the substantive experience and worth of rights. This makes it possible for us to move beyond a focus on the formal and procedural dimension of rights and examine closely the more substantive and indeed experiential dimension of rights in a democracy. The experience of democracy is contingent upon the experience of and access to rights to all citizens. While rights might be granted to all citizens equally, however, are citizens able to enjoy these rights equally, or are there structural, cultural and other factors that inhibit this? Do citizens, for instance, feel that they are treated equally; do they have easy access to the media or the university? Do they feel somewhat lesser in public places such as hospitals, government offices? Are their voices heard? Do all citizens feel equally welcome in a music concert, and does their artistic and aesthetic sensibility get reflected or acknowledged in concert spaces and performance arenas? The grant of universal rights assumes a public sphere where all citizens are granted equal rights. This is one of the fundamental features of a liberal democracy. However, the institution of caste has resulted in social separation, dividing India into small and exclusive enclaves. The question that is being asked here is, could such a social context generate a cultural and more specifically musical expression that all citizens have a right to? Social exclusion is not a new phenomenon nor is it unique to India. Historians have recorded varied instances of exclusion the world over. Slavery, for instance, was a system of exclusion; women have been excluded from many aspects of social life in various parts of the world. Apartheid was a system of social exclusion based on race. Caste has been a system of social, economic, political and cultural form of exclusion, resulting in a hierarchical arrangement of people where the upper caste could justify the appropriation of the labour and the bodies of the lower castes. Contemporary India has a remarkable constitution that guarantees to us citizens a considerable set of rights. However, the implicit grant of the right to demand and struggle for expanding the horizons of these rights is the most significant. It is this that makes India democratic. The idea is that democracy is an open-ended project and a work-in-progress, and rights are central to this project.

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Cultural disempowerment and exclusion mar the project of building a democracy. T. H. Marshall’s classical theory of citizenship theory identified three very important stages in the evolution of the modern ideas of citizenship rights as civil, political and socio-economic rights (Marshall 1950). Cultural rights were long considered to be implicit in political rights. However, that is no longer the case. ‘Culture’ is no longer understood to be the preserve of a privileged few. In fact such an understanding of culture would be denounced for its elitist predilections. Culture is increasingly understood as a storehouse of human civilizational diversity, as a repository of varied artefacts, cultural values and practices wherein each and every human being would have the right to create, participate and receive. There is no denying that in order to enjoy the formal grant of cultural rights, the access to socio-economic rights and opportunities in a substantive way become very crucial. Access to books, records, a habit of attending concerts and the theatre, listening to music, opportunities to learn and train in the arts and most importantly access to leisure are very crucial conditions for the exercise of the right to culture. Human expression takes many beautiful and appealing forms; indeed art is one of the most attractive ways in which human beings express themselves and communicate their feelings. The world over, civilizations and cultures have evolved various forms of artistic expression. Art has been seen as the upholder of standards of beauty and pleasure and is often described as something that is edifying and uplifting of the mind and the spirit. Ellen Dissanayake, for instance, has argued that the value of all art lies in making us ‘feel good’ (Dissanayake 1995). John Carey, a professor of literature at Oxford, puts together all the wellknown answers to the question, what good are the arts (Carey 2006)? He has suggested that art provides us with powerful pleasures. It expands our imaginative sense. It is like a window into historical epochs and into realms of pure fancy and fantasy. It sharpens our intellectual and discriminative powers and develops human technical capacities to the highest degree possible. Arts incite emotional experience of an intensity and variety nowhere else available and take us deeply into alternative human sensibilities. Art records some of the most profound ideas human beings have ever had. Cultures and civilizations come to be identified with certain artistic expressions, for instance the Chola bronze or the Ming vase. Art can increase human sociality for artistic performers and their audiences alike. Social scientists seek to understand art in general and music more specifically not in isolation from other aspects of society but within a specific social context. If art and cultural activities in general are so precious and pertinent, why is it that a large section of our citizens is excluded from this experience? The question that needs to be asked from a democratic vantage

The ‘right’ music 341 point is what happens to the artistic expressions of the non-elites. And would the non-elites have access to what is considered high art? So who has access to art, what is considered art and more significantly, what is considered as high culture? All this gives us answers to who is included and who is excluded. Being excluded or denied access to cultural rights is tantamount to a violation of human rights of a people. A civilization is created, consolidated and affirmed only when people have access to their cultural traditions as well as being able to participate in the creation of new cultural accounts. The world of art is full of powerful hierarchies. Some art is considered high and others folk or popular, and high art is more often than not the preserve of the privileged. The art of the lower classes/castes is excluded from the ranks of national/classical or high culture and thus valued less. Art ironically is also capable of bridging social and cultural divides. The issue is of the right to access to the arts.

III. Old raagas, new sabhas:1 Karnatik2 music in south India The esoteric world of classical music of south Indiais at the centre of one of the world’s biggest – and longest – festivals of classical music and dance, with its epicentre in Chennai, the capital of Tamil Nadu, every winter (Narayanan and Velayutham 2014). The transformation in the social composition of the performers and the audiences, the location and the content of this music is intimately linked to the nature of change in south Indian society, especially in the Tamilspeaking areas. The strength of the non-Brahmin movements, the assertion of Tamil identity, colonial modernity, rise of a new English-educated middle class, collapse of feudal land arrangements, the emergence of new urban centres, new recording technology and cinema amongst many other reasons worked together to overhaul the nature of Karnatik music (Subramaniam 2006). Until the early 1900s, apart from the male Brahmin musicians, two other groups of artists and performers belonging to the Isai Vellalar community also played an important role in nurturing the music and dance traditions of this region. The first group was the Devadasis, female artists attached to Hindu temples, and the musicians who accompanied the dancers. The second group consisted of the very venerated nadaswaram3 musicians. Both the groups were intimately linked to temple economy and rituals. Their social and familial arrangements differed considerably from the Brahmins and other upper-caste groups that were based on strict patriarchal ordering of marriage, sex, work and property relations (Srinivasan 1985).

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With the advent of British colonialism, the new social group of Englisheducated upper-caste men of Chennai engaged in a process of careful selection, choosing from the available artistic traditions. This resulted in the crafting of new ‘traditions’ that were supposedly ‘authentic and pure’, unmediated by the art and sociality of the non-Brahmin musicians and dancers. The art was wrested from the practitioners while the context of the art gradually eroded. It was re-packaged and represented as a pure and highminded form suitable for the nationalist elite and its claims to cultural superiority. The huge artistic contribution of the traditional communities continued to be praised in a rather nostalgic and condescending manner by the new custodians of south Indian art and culture. Today, the nerve centre of Karnatik music is undoubtedly the city of Chennai or Madras. But this was not the case in the eighteenth and the early nineteenth centuries, when Thanjavur was the capital of Karnatik music. The journey of Karnatik music from the temples and courts of Tanjore to the sabhas and their public concert halls and recording studios of Madras tells us a lot about the changes in music specifically and the nature of social change in south India in general (Subramaniam 2006). The story of modern south India cannot be narrated without the story of the artistic disenfranchisement of the traditional caste of musicians and dancers. The obliteration of this community was not without implications for the dance and music of south India. The system cracked and was finally wiped out as a result of the changes advanced by the new Brahmin middle class with its new political and aesthetic considerations. Style, compositions, presentation, nature of musical accompaniments, language etc. experienced a profound transformation, apart from the performers themselves, who now were drawn almost exclusively from the Brahmin community. The reforming Brahmin elite, for instance, did not integrate nadaswaram players into the new concert framework. The latter’s music was projected as nothing more than a part of a quaint ritual tradition, not necessarily of any great musical worth. The Devadasis were of course condemned as symbols of moral decadence and artistic vulgarity and were wiped out of existence through moral and social campaigns and finally legislations. Very significantly, shared caste and community ties consolidated and inscribed a specific understanding of the classical on the musical practices and traditions that were in vogue. Sons of Brahmins from declining landowning families of the old districts who came to the colonial city of Madras clung to some elements of their traditions, and music played an important role in this context. Among many other things, this required the presence and practice of the non-Brahmin communities to be expungedby invoking the law, (Devadasi abolition), by rendering their musical traditions as merely ritual music and not classical enough, by moving to secular

The ‘right’ music 343 performance platforms (sabhas) away from the traditional temple setting that had patronized the traditional performing communities and of course by creating a new canon of compositions. Thus Karnatik music came gradually to be seen as the musical and aesthetic expression of the Brahmins, and the non-Brahmin community that was hitherto a strong participant in this musical tradition was squeezed out. Prior to the ‘modernized’ concert format of Karnatik music of the twentieth century, there was greater prevalence of creative interactions between musicians belonging to the Brahmin and the Isai Vellalar communities (Krishna 2013). Leading Brahmin musicians are known to have been trained by great gurus who belonged to the Isai Vellalar community. It was in 1930 that the hallowed Madras Music Academy, the citadel of classical music in south India, was inaugurated (Ghosh 2012). The academy sought to define Karnatik music, represent it by altering its aesthetics. There was an unmistakable correspondence of caste, village and community between the new patrons and performers. Tiger Vardachari, Muthaiah Bhagavathar and Ariyakudi Ramanuja Iyengar (all co-incidentally Brahmin men) were some of the leading musicians who were actively involved with the academy’s project of redefining the aesthetics of Karnatik music. The new concert format eschewed ‘applied’ music (a euphemism used to discredit the music of the traditional musicians). Instead, the compositions of the ‘trinity’ of composers Thyagaraja, Shyama Sastri and Muthuswami Dikshitar(all Brahmins) came to be the staple of a Karnatik concert or kutcheri,4 or a new concert regimen with its own attendant aesthetics and practices and most importantly practitioners drawn largely from the Brahmin community. It brought together the upper-caste educated elite of Madras, and later of other parts of south India, like nothing else did. The kutcheri with its unique sensibilities and tradition became in a manner of speaking the symbol of cultural reassertion of the upper-caste nationalist elite in south India. The kutcheri provided an ideal location for socialization of the upper-caste elite of Madras by bringing together the listener, the critic, the student and the performer. The aim was to redefine the practice and experience of music and the middle-class elite of Madras, who became the self-appointed custodians of the musical heritage of south India. The new elite of Madras and the Karnatik musicians, who were predominantly male, were held together by caste and community ties helping in the rapid spread of the newly forged canon as a revered tradition. The purpose of the new format was to create a performance space and style that would be distinct from the court and the temple of the past and sanctified by the new aesthetic and moral considerations. The order of the day was to design and create a format that would cater to the ever-growing concert-going audiences in Madras.

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In order to be accepted by the gatekeepers of the new concert format, the ‘canonical’ compositions had to be sung to the near exclusion of the songs and aesthetic styles of the pre-kutcheri format. Many of the nonBrahmin women of the Devadasi community who had busy music careers came to be excluded. It is however one of the abiding ironies of history that the most well-known Karnatik musician in our times is M. S. Subbalakshmi, who was both a woman and a non-Brahmin, but not before a careful reordering of herself as well as her music.

IV. Vivadi5 swaras: dissonant notes and critics It is this history of exclusion that has led some critical voices, best illustrated by a leading Chennai-based vocalist T. M. Krishna, to describe the Chennai music season as one of the most restrictive music festivals in the world, where the exclusion is subtle and not overt (Silverman 2003). The patrons (sabha), the performers and the audience are tied together by caste and community ties. Performers who do not share these ties have found it difficult if not impossible to make their mark in the world of Karnatik music. Non-Brahmin musicians often languished for want of patronage of the sabhas that organized the concerts (these sabhas are mostly controlled by Brahmin men of great influence) or for want of good accompanists (often Brahmin), who were unwilling to perform on stage with them. As a step towards rectifying this imbalance, some musicians including T. M. Krishna are attempting to recover and showcase the music and art traditions of the local communities in Chennaiin neighbourhoods far removed from the sabhas and their patrons. This initiative, like many others, is a very important step in challenging social exclusion and reinforcing democratic citizenship and creating possibilities for citizens to assert their cultural rights.6

V. The universal sound of music If cultural rights are part of the human rights heritage, then it can be argued that robbing a group of people of their artistic heritage is a human rights violation similar to denying an individual the right to free speech. Human beings make sense of the world largely by sharing their understanding of the world around them. It is only when many people talk to each other and exchange opinions, as Hannah Arendt, has argued that a sense of the world begins to emerge. This argument could be extended to music as well, for music is a manner of speech and communication. A civilization that does not permit the right to all individuals to sing freely and openly and share each other’s music would be deeply divided and unequal. Democracy requires that speech and music flow freely and fearlessly.

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Notes 1 An organization for the support of classical arts in Chennai, https://sriramv. wordpress.com/2011/11/18/the-sabha-culture-of-chennai/. 2 Carnatic, Karnatak, Karnatik – these are the three commonly used spellings. In this chapter, the last-mentioned spelling has been used. 3 Nadaswaram is a wind instrument that is an intrinsic part of temple rituals. 4 A Karnatik music concert. 5 Vivadi: Dissonant note. It is a note which should not be used in a raga. As an exception, however, it is used by skilful musicians in an implied form in order to enhance the beauty of the raga. Vivadi notes are often addressed as enemy notes (www.ragopedia.com/raga/vadi.html). 6 See details on Urur-Olcott Kuppam Vizha – Celebrating Oneness (www. facebook.com/Urur-Olcott-Kuppam-Vizha-Celebrating-Oneness-70090 2283357977/) (accessed on 12 June 2017).

Bibliography Ambedkar, B. R. 1949. Dr. Babasaheb Ambedkar’s Concluding Speech in the Constituent Assembly, 25th November, 1949. Carey, John. 2006. What Good Are the Arts. Oxford, UK: Oxford University Press. Dissanayake, Ellen. 1995. Homo Aestheticus. US: University of Washington Press. Ghosh, Bishwanath. 2012. Tamarind City. New Delhi: Tranquebar Press. Krishna, T. M. 2013. A Southern Music. India: Harper Collins Marshal, Thomas Humphrey. 1950. Citizenship and Social Class, and Other Essays. Cambridge, UK: Cambridge University Press. Narayanan, Jayakrishnan and Chandrasekaran Velayutham. 2014. ‘A Study on the Framing of “Margazhi”/December Music Festival in the English and Regional Language Newspapers in Tamil Nadu’,International Review of the Aesthetics and Sociology of Music, 45(1): 77–98. Nettl, Bruno, http://www.quizover.com/oer/course/a-concert-of-carnaticmusic-by-bruno-nettl-videolectures-net-oer (accessed on 6 June, 2017). Silverman, Julian. 2003. ‘Pariah Beats’, https://newint.org/features/2003/ 08/01/india/ (accessed on 12 June 2017). Srinivasan, Amrit. 1985. ‘Reform and Revival: The Devadasi and Her Dance’, Economic and Political Weekly, 20(44). Subramaniam, Lakshmi. 2006. From the Tanjore Court to the Madras Music Academy: A Social History of Music in South India. Oxford, UK: Oxford University Press. UNESCO. 1970. Cultural Rights as Human Rights, http://unesdoc.unesco. org/images/0000/000011/001194eo.pdf (accessed on 2 June 2017).

14 The trajectories of work, sexuality and citizenship The rights of the transgender in India Skylab Sahu A citizen is the individual who lives within a state or a specific boundary and enjoys all legal and constitutional rights of that state. Citizenship, although associated with an ideal condition of equality, in actuality it remains levelled through hierarchies of class, caste, sex, religion, race, ethnicity and so on (Roy 2008). However, in a multicultural society the universal and uniform understanding of the citizenship loses its rigour if is not contextualized. Since the 1980s, with the emergence of multiculturalism, plurality and diversity have been reference points for citizenship. Scholars such as Kymlicka (1996) and Marion Young (1990) argued that the uniform or the universal theory of citizenship fails to capture the diffracted and excluded groups who are excluded from the common rights of citizenship within a society. Young has rightly stated that in the multicultural society, some groups are privileged and other groups are oppressed. For example in Indian context, if one perceives the gender positioning, women are seen as second-class citizens in comparison to male, and the transgender were seen as non-citizens for a long time. Furthermore, citizenship is not always a given concept but rather is an evolving one, whereby the individual realizes different rights in a progressive manner. Becoming a citizen can either be understood as the extension of the status of citizenship and assurance of right to the excluded group or as breaching the structure or system of oppression. In the process of ascribed citizenship, recognition of any excluded group of the community is essential. Recognition ensures the rights to the vulnerable community in a much nuanced way. Recognition of some excluded groups of the population such as transgender is necessary, as it ensures affirmative action or makes welfare measures accessible to the group members in more nuanced ways. The recognition of the transgender as ‘third gender’ provides rights to the community with dignity. The transgenders constitute 4.9 lakh of the total Indian population.1 Out of the total number of transgenders identified by the census, almost 55,000

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are in the 0- to 6-year-old population group. It is a little astonishing that many parents have identified their children as the third gender.2 Transgender people are individuals of any age or sex whose appearance, personal characteristics or behaviours differ from stereotypes about how men and women are ‘supposed’ to be. In its broadest sense, transgender encompasses anyone whose identity or behaviour falls outside of stereotypical gender norms. The term ‘transgender’ is also considered an umbrella term which includes gay people, lesbians, bisexuals and cross-dressers within its scope. In India, they are named differently in different parts of our country such as Hijras, Enunch, Kothis, Aravanis, Jogappas, Shiv-Shakthis and so on. Transgender people have existed in every culture, race and class since the story of human life has been recorded.3 Only the term ‘transgender’ and the medical technology available to transsexual people are new. Indian historical archives, ancient texts, mediaeval court customs, epics and tantric rituals have several visible examples of discourses and representation about homosexual acts and relationships (Dasgupta 2011; John and Nair 1993). Indian historians and queer scholars Vanita and Kidwai (2000) trace these discourses back to ancient India. Menon has argued that ‘the normalization of heterosexual identity [is] a part of the processes of colonial modernity’ (2005: 38). Moreover, there are huge differences of perceptions across cultures, traditions and practices of the north, south, east or north-east towards the communities of transgender. In the north-eastern states, transgender hijras identify themselves as ‘homo’. In Manipur, they are commonly seen working as makeup artists and hairdressers in beauty parlours. In Odisha, transgender people are often called Maichia, a word which means an effeminate male, often perceived to be woman-like, more malleable, close to womenfolk. They generally are seen as part of the society and do the job of cooks, maids and people who take care of the village property like those who take care of the deity temple, math and so on. In one case they are not discriminated against and are considered as part of the society, yet they face subtle types of stigma, such as when they are blamed for being the instigators of conflict. They are also often perceived to be asexual and are compelled to follow a socially sanctioned asexual life. In the process the transgenders who were engaged in professions which are community based (cook, caretaker or guard of temple property) were expected to imitate a traditional imaginary role4 of the transgender. However, despite their marked presence in the society, hetero-normativity being the norm of the society, these communities often face rejection and discrimination, and their rights have been violated. Although the Indian state, of late, has recognized them as third gender, several other rights of the transgender and especially right to sexuality are yet to be recognized.

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State, identity and rights of transgender people In the year 2006, with response to widespread incidences and patterns of abuse and discrimination, a distinguished group of international human rights experts met in Yogyakarta, Indonesia, to outline a set of international principles related to gender identity and sexual orientation. As a result, the Yogyakarta Principles as a universal guide to human rights were formulated (2017).5 The principles state that all human beings are born free and equal in dignity and rights. Human beings of all gender identities and sexual orientations are entitled to the full enjoyment of all human rights. In order to achieve this goal under the human rights the states shall (a) amend any legislation, including criminal law, to ensure its consistency with the universal enjoyment of all human rights ad (b) undertake programmes of education and awareness to promote and enhance the full enjoyment of all human rights by all persons, irrespective of sexual orientation or gender identity. The document further states that everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. States shall (a) embody the principles of equality and nondiscrimination on the basis of sexual orientation and gender identity in their national constitutions or other appropriate legislation, if the principles are not yet incorporated therein, could be included by means of amendment and interpretation, and ensure the effective realisation of these principles (Yogakarta Principles 1 and 2). The right to recognition is one of the vital rights of the transgender, as recognition ensures human dignity to people who are different and who have often faced discrimination because of their gender non-conformity. Recognition of the third gender also brings to notice the vulnerabilities generally faced by the transgenders. It is expected further that the recognition of the vulnerable gender also ensures better welfare to the excluded community. In India, the transgender community faces a lot of stigma and discrimination, and the transgenders remain deprived of social and cultural participation, are shunned by family and society and have only restricted access to education. They have less access to health services and public spaces. They exercise limited civil, political and economic rights such as right to marriage, right to contest elections, right to vote, employment and livelihood opportunities and so on. The life, citizenship and identity of the transgenders has transited between legality and illegality of civil and criminal law. For a long time till 2014, the transgenders were not recognized as a different gender identity and as a non-recognized community, were treated as legal non-entities and were not substantively covered under Article 14, 15, 16 and 21 of the Constitution of India. As far as their existence, identity and recognition as a different gender is concerned, it was recently,

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in April 2014, that the Supreme Court of India has identified them as ‘third gender’. Transgender, as mentioned in the introduction section, is an umbrella term which includes gay people, lesbians, bisexuals and crossdressers within its scope. In this judgement, judges have not adopted the wider meaning of the expression ‘transgender’. In the Indian context, however, Hijras, Enunch, Kothis, Aravanis, Jogappas, Shiv-Shakthis are considered transgender. Therefore the state recognized third gender, which excludes gay, lesbian and bisexual. Thus the state has recognized only gender but not the sexual aspect of identity, and it is considered abnormal and illegal under the IPC 377. It derecognized the homosexuality and the sexual orientation of the transgender. A close interpretation of the act also makes sex work by transgender people (often homosexual) as a profession illegal or abnormal.

The Indian state and rights to sexuality: the IPC 377 The IPC 377 reads: ‘of unnatural offences: whoever voluntarily has carnal intercourse6 against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to 10 years and also be liable to punishment of imprisonment and fine’.7 Homosexual intercourse was declared ‘unnatural’, which made it a criminal offence under Chapter 16, Section 377, of the Indian Penal Code, 1860. This colonial law was maintained even during the post-Independence era, and homosexuality remained an offence. This would violate the constitutionally protected right to privacy under the expanded definition of right to life (Art 21) (‘Kharak Singh vs. Union of India’). The definition of ‘unnatural offences’ is obsolete. It invites questions such as what is the order of nature? It leaves to the discretion of any particular bench of judges to interpret the order of nature. In the past, under ‘order of nature’, sex was basically perceived as a means for reproduction, but in the contemporary time, under ‘order of nature’, sex is often seen as the means for both pleasure and reproduction. Similarly, in the Indian society, heteronormativity is usually interpreted as order and homosexuality as against nature or other. This section has the potential to target sexual minority populations, as they are erroneously seen as the population which engages in carnal intercourse termed ‘against the order of nature’. The act introduces and implements a new sense of morality. A morality that denounces many forms of intimate relationship based on the consent of adults could be decided by the judges as falling within the definition of ‘carnal intercourse against the order of nature’ (People’s Union for Civil Liberties, Karnataka 2003). In India there has been a constant demand and pressure by homosexuals and transgenders towards the amendment of the IPC, 377. On 2 February

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2016, a curative petition had challenged the court’s judgement delivered on 11 December 2013, when it had upheld Section 377 of the IPC, which criminalizes ‘carnal intercourse against the order of nature’. A three-judge bench of the Supreme Court comprising the three senior judges on the court – Chief Justice T. S. Thakur, Justice Anil R. Dave and Justice Jagdish Singh Kehar – sat to hear curative petitions that have been filed challenging the Supreme Court’s decision in December 2013. Chief Justice Thakur said the petitions pose several questions with ‘constitutional dimensions of importance’ while dictating the order of reference to a Constitution Bench (he would be setting up shortly). This Bench neither admitted the petitions nor issued notice to the government, leaving it to the future Constitution Bench to do so, if found necessary (Rajgopal 2016). It is pertinent to mention that the right to self-determination of a transgender has been recognized by the Supreme Court under right to life in Article 21 of the Constitution of India. The SC stated during the NALSA judgement, ‘right to self-identity as an inalienable right under Article 21 of the Constitution of India’. However, the Supreme Court dismissed a review petition filed by the Central Government, NGO Naz Foundation and others to reconsider the 11 December verdict on Section 377 of IPC. On 18 December 2015, Parliamentarian Shashi Tharoor introduced a bill to Lok Sabha for the decriminalization of Section 377. The bill was rejected by the house by a vote of 71–24. By the middle of 2016, Pakistani clerics declared transgender marriages legal in Islam. Homosexuality still remains a criminal offence with a sentence of up to 10 years in jail. A rape sentence is 7 years (Mukherjee 2016). It is essential to understand that by denying the right to sexuality the state acts as a tool towards annihilating human rights. The state legal system also follows a narrow approach towards understanding the contested sphere of homosexuality. Possible problems which could occur because of non-recognition of the sexuality of transgenders are that it would not address sexual violence and other forms of violence that persist or may emerge within the sphere of homosexuals (the sphere of heterosexual relationships is also a sphere which is not devoid of violence). Hence, violence within intimate relationships and partners and the possibility of rape and sexual harassment within the homosexual sphere of relationships will never be a legal concern in the state. Transgenders are also restricted from opting for sex work as a profession. Sex work is the exchange of sexual services for reimbursement or material gain. Over the last four decades, sex work has been one of the prominent socio-economic affairs in some South Asian countries. According to Lim (1998), the scale of sex work has increased to such an extent that it can even be called the ‘commercial sex sector’. Sex workers’ community is

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not homogeneous. They belong to different gender (female, transgender, male), class and religious lineages8 to the extent that a large section of them are women; a majority of them are poor and driven into the profession by poverty (Kala and Baru 2013; Sariola 2010). As far as the sex work is concerned, they are covered under the ITPA Act. The Immoral Trafficking Prevention Act (ITPA 1956) does not criminalize prostitution or prostitutes. However, it punishes the act if it is intervened in by third parties and is facilitated through maintenance of brothel. Moreover, solicitation of customers and sex work in the vicinity of public places are prohibited under law. However, as most of the transgenders practice homosexuality, legally, they are restricted from having any sexual life. They are also legally hence not allowed to choose sex work in any condition. Thus, although sex work is partially legally permissible, transgender people as a community are fully restricted from exercising the right. Sex workers and especially transgenders are powerless to the extent that it remains difficult for them to negotiate for usage of condoms. Second, in the process of sexual intercourse, they face several kinds of violence. The state and legal system hardly provide scope to the transgender to discuss the issue of violence faced by them. The transgender sex workers usually face violence from the police on the basis of the IPC 377 as well. Such experiences remain unnoticed or noticed very rarely.

The state and transgender citizens: violation of civil and constitutional rights The defence sector of India, especially the Army and Navy, under different sections like Section 46 (a)9 could discriminate against transgender people and could sack a person if they were found to be not normal as per the social normativity. The economic and legal rights and benefits available to heterosexual marriages are restricted for homosexuals. Same-sex couples are deprived of several rights, such as the right to common property and inheritance, ‘next of kin’ privileges in the event of illness or death of their partner and custody maintenance and adoption rights. Homosexual relationships are not recognized when it comes to defining the family for the purposes of insurance claims, compensation under the Workman’s Compensation Act, gratuity benefits and for the purposes of nomination. There have been incidences where the state public authorities were found discriminating against transgenders. A young athlete in Tamil Nadu, daughter of a municipal conservancy worker, got selected to the police force. Within months, following a routine medical examination, her intersex condition was revealed, and the young woman was dismissed from the force, for which she had all other qualifications. In India, the best-known

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case of such discrimination was that of Santhi Soundarajan from Tamil Nadu, who won the silver medal at the 2006 Asian Games in Doha. Following questions about her gender and medical tests that merely confirmed her intersex condition, her medal was taken back (Swami 2012). Majority of the transgender population is uneducated or undereducated. Along with teachers’ apathy within a classroom setting, exclusion from society, poverty and violence are some of the important factors that contribute to the poor participation of transgender students in educational activities. The average qualification for transgender is secondary (Matric) or senior secondary level. The enrolment is significantly low, and the dropout rate at the primary and secondary levels is still very high. As highlighted by MoSJE report (2013), there is an urgent need for addressing the community concerns in the education sector in a holistic way while giving attention to the four core issue of access, equity, enabling environment and employment. Transgenders face discrimination in housing and jobs that affect the ability to ensure healthcare (Marks 2006). HIV prevalence among MSM populations was 7.4 percent as against the overall adult HIV prevalence of 0.36 percent. Until recently, transgenders were included under the category of men having sex with men (MSM) within the HIV preventive and care policies and implementation strategies. Recent studies among transgender (TG) women further have indicated a very high HIV prevalence (17.5 percent to 41 percent) among them (UNDP 2010). However, the national health policy has no reference to general health concerns of the transgenders. The national AIDS policy addresses MSM as one of the vulnerableto-risk groups. The Indian state has been focusing on the target-specific approach towards controlling and combating HIV/AIDS through the sex worker community. Along with that a few new categories of others like the homosexual, women and eunuch sex workers were also targeted on these grounds. In the process, on one hand, it address their health issues but simultaneously maintains silence towards understanding the totality of the problems faced by sex workers and transgenders. The HIV/AIDS policy is applicable partially to the sexual health of transgenders and avoids addressing overall health of transgenders (Government of India. 2013). It also does not mention the difficulties like discrimination faced by the transgender even while accessing healthcare for any common health problems. As far as some of the general health needs are concerned, remains inadequately addressed by the state. There is also a requirement of providing community-friendly services free of stigma and discrimination. To ensure better sexual and reproductive health (SRH), sex re-assignment surgery (SRS) etc., there is need of trained and sensitized public healthcare providers on SRS and other health issues. Since transgenders are prone to several health risks, they need proper medical facilities, including health insurance

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and clinics, where free or subsidized treatment should be made available to them (Government of India. 2013). However, it is equally pertinent to note that recently a few states within India and the central government also have been taking some steps towards inclusion of transgenders. The 2011 Census for the first time counted transgender persons separately instead of including them within the ‘male’ category, as was done earlier. The Aadhaar card recently has a column for transgenders. The Delhi Election Commission has been organizing registration camps for marginalized sections, including transgenders. Karnataka’s state transport department has included an ‘others’ box in the application for a driving licence. Tamil Nadu has been the pioneering state towards providing citizenship to the third gender. A Transgender Welfare Board in Tamil Nadu has developed welfare measures, but their acceptance by society as an equal sex still remains a far cry (Mukherjee 2013). The University Grants Commission has also come up with the direction of inclusion of the third gender in higher education (The Deccan Herald 2014). The state of Kerala, furthermore, came up with the policy on transgender citizens in the year 2015. It aims at providing barrier-free access to education, employment and education to the transgender community. Similarly, the government of West Bengal also has come up with the plan of including the transgenders in a civic police transgender force (The Indian Express 2015). The above-mentioned initiatives were recently taken by the state and central governments, and the prevalence of the discrimination against transgenders still remains very high in society. In India, the Transgender Persons (Protection of Rights) Bill, 2016 was introduced in Lok Sabha in August 2016, which is currently pending with the Standing Committee on Social Justice and Empowerment. In December 2016, the committee sought a 3-month extension for submitting its report on the bill. The bill makes provisions for and prohibits discrimination against a transgender person with respect to education, healthcare, access to goods, services, facilities and opportunities available to public; right to movement; right to reside in, rent, own or occupy property; opportunity to hold public or private office; access to government or private establishments etc. The bill makes penal provisions for compelling transgender for begging, forced or bonded labour, denial of use of public place, denial of residence or household, physical, verbal, emotional or economic abuse etc. In such case the bill mandates penalties that include imprisonment between 6 months and 2 years and fines. The bill states that relevant government agencies will take measures to ensure the full inclusion and participation of transgender people in society and will take measures to ensure rescue and rehabilitation, vocational training and self-employment of the transgenders.10

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Despite the state governments taking several such affirmative steps, one needs to realize that the position of the transgender has not automatically changed, and it is not that the state has spontaneously taken all the steps towards ensuing rights of the transgender. In most of the cases, civil society organizations, individual activists, activist and community representatives and a few academicians together have been leading the movement and are constantly negotiating with the state towards assurance of the rights of the LGBT community in better ways. The movement broadly demands the right of the transgender to be treated as fully human, without considering their sexuality or their gender as less than human. The movement not only influenced the policy formulation but also the implementation of the policy. For example, NAZ Foundation, Lawyers Collective from Delhi, Sangama and Reach Law, two Bangalore-based minority rights groups, have been negotiating at the policy level with the state to ensure different rights. These organizations also intend to bring legal changes with the help of the judiciary of the state to protect the rights of sexuality of the transgender. As the experience of the transgender community has been one of ascribed citizenship, the effort of the movement has remained noteworthy in recognition and expansion of transgender rights.

Conclusion Recognition or non-recognition of any gender contributes towards the recognition and provisioning of dignity to the transgenders. The community of the transgender faces several forms of violation of rights by both the society and the state. The state while working through legalities, institutions and state personal hold immense power in constructing the identity. It is the state which has authority to provide a community such as transgender recognition or gender identity. Initially, in India, at least till 2014 they were not legally recognized as a distinct group. However, till their recognition, although they were supposed to be treated equally under Articles 14, 15 and 16, they could hardly get equal opportunity along with the other groups in the population. The transgenders lagged behind in several categories such as education, health and so on. However, the Indian state and state governments have started taking some steps towards inclusion of transgenders, but merely legal rights do not necessarily translate into social and cultural acceptance and do not automatically lead to recognition by the various state and non-state agencies. The IPC, 377 restricts the rights to sexuality for the transgender community and prevents them from opting for sex work. In a multi-cultural, multi-religious society, the real meaning of equality and liberty could reign when the dominance of particular genders and

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groups is displaced by ensuring rights and citizenship to transgenders. In this process of extension of citizenship, decriminalization, freedom from stigma and discrimination and right to privacy could be considered as the first few steps towards realization of an ethos of equality and dignity of the individuals in general and transgender persons in particular.

Notes 1 The organizations working for the community of the transgender provide a large figure of transgender people which is five to six times more than the figure given by the Census (The Times of India). 2 The census counting happened well before the Supreme Court order which legally recognized the third gender in April 2014. However, despite such a large prevalence within the population, there has been large ignorance persisting towards acknowledging the existence of the identity and right. 3 Even within Hinduism, the lord Shiva’s Ardha-nariswar avatar is a similar depiction of the presence of the transgender as part of the humanity. 4 Many religious myths and stereotypes see the hijras as traditionally asexual, due to which they have supernatural powers to bless or curse people. History is replete with stories of their non-threatening bodies because of which they were, more or less, entrusted with guarding the royal harems during the rule of the Mughal dynasty. The king of course ensured that the hijras were castrated and therefore unable to impregnate the women in the harem (Goel 2014). 5 These are international legal standards which are expected to be followed by all countries. 6 Penetration is sufficient to constitute the carnal intercourse necessary to constitute the offence described in this section. 7 High Court of Delhi decriminalized IPC Section 377. 8 For details see Vanita, Ruth and Saleem Kidwai. 2000. Same-sex Love in India: Readings from Literature and History. New York: Palgrave-St Martin’s Press. 9 ‘Any person subject to this act who (a) is guilty of disgraceful conduct of a cruel, indecent or unnatural kind . . . can be removed from service’. There are similar provisions in the Navy Act that subject all employees of the Indian Navy to the disciplinary requirements under a similar enactment. 10 The bill does not recognize right to self-determination to a transgender, which has been rightly recognized by the Supreme Court. The appointment of the District Screening Committee is also against the NALSA judgement, which recognized right to self-identity as an inalienable right.

Bibliography Dasgupta, Rohit K. 2011. ‘Queer Sexuality: A Cultural Narrative of India’s Historical Archive’, Rupkatha Journal on Interdisciplinary Studies in Humanities, 3(4). ISSN 0975-2935. The Deccan Herald. 2014. ‘UGC Notifies Transgenders as Third Gender’, July 23, https://www.deccanherald.com/content/421467/ugc-notifies-transgendersthird-gender.html (accessed on 23.05.2016).

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Goel, Ina. 2014. ‘Beyond the Gender Binary’, Economic and Political Weekly, 49(15): 77–78. Government of India (GOI). 2013. National Expert Committee on Issues of Transgender Persons, Approach Paper on Education and Employment Opportunities & Challenges for Transgender. New Delhi: Ministry of Social Justice and Empowerment. The Immoral Traffic (Prevention) Act. 1956. ‘Central Government Act’. Indiakannon, https://indiankanoon.org/doc/69064674/ (accessed on 01.07.2017). The Indian Express. 2015. ‘West Bengal Government Plans to Enrol Transgenders in Civic Police Volunteer Force’, October 1, http://indianexpress. com/article/cities/kolkata/kolkata-govt-mulls-to-enroll-transgenders-incivic-police-volunteer-force/ (accessed on 12 March 2017). John, Mary E. and Janaki Nair. 1993. ‘Sexuality in Modern India: Critical Concerns’, Voices for Change: A Journal on Communication for Development, 3(1): 4–8. Kala, Kush and Priyanka Baru. 2013. Right of Prostitutes to Live with Dignity. New Delhi: Vij Books. Kymlicka, Will. 1996. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford, UK: Clarendon Press. Lim, Lean Lim (ed.). 1998. The Sex Sector: The Economic and Social Bases of Prostitution in Southeast Asia. Geneva: International Labour Organization. Marks, Suzanne M. 2006. ‘Global Recognition of Human Rights for Lesbian, Gay, Bisexual, and Transgender People’, Health and Human Rights, 9(1): 33–42. Menon, Nivedita. 2005. ‘How Natural Is Normal: Feminism and Compulsory Heterosexuality’, in Gautam Bhan and Arvind Narrain (eds.), Because I Have a Voice: Queer Politics in India. New Delhi: Yoda Press. Mukherjee, Susmita. 2016. ‘A Timeline of India’s LGBTQ Movement and Struggle against Section 377’, The Times of India, July 4, https://www.indiatimes. com/news/india/lgbtq-a-timeline-of-india-s-lgbtq-movement-and-struggleagainst-section-377_-255429.html, (accessed on 5 February 2016). Mukherjee, Trisha. 2013. ‘Equality for Transgenders’, Economic & Political Weekly, 48(49): 4. People’s Union for Civil Liberties, Karnataka. 2003. Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, http://ai.eecs.umich.edu/people/conway/TS/PUCL/ PUCL%20Report%20Contents%20and%20Foreward.html (accessed on 23 January 2016). Rajagopal, Krishnadas. 2016. ‘Five-judge Constitution Bench to take a call on Section 377’. The Hindu, February 2, https://www.thehindu.com/news/ national/Five-judge-Constitution-Bench-to-take-a-call-on-Section-377/ article14056992.ece (Accessed on 3.1.2017) Roy, Anupama. 2008. ‘Citizenship’, in Rajeev Bhargava and Ashok Acharya (eds.), Political Theory: An Introduction, pp. 130–139. New Delhi: Pearson and Longman,

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Sariola, Sala. 2010. Gender and Sexuality in India: Selling Sex in Chennai. New York: Routledge. Swamy, V. Narayan. 2012. ‘Asiad Silver Medallist Santhi Soundarajan Labours at Brick Kiln’, The Times of India, July 24, https://timesofindia.indiatimes.com/sports/ off-the-field/Asiad-medallist-labours-at-brick-kiln/articleshow/15112611.cms (accessed on 12 May 2015)UNDP. 2010. Hijras/Transgender Women in India: HIV, Human Rights and Social Exclusion, www.undp.org/content/dam/india/ docs/hijras_transgender_in_india_hiv_human_rights_and_social_exclusion.pdf (accessed on 17 November 2016). Vanita, Ruth and Saleem Kidwai (eds.). 2000. Same-sex Love in India: Readings from Literature and History. NY: Palgrave-St Martin’s Press, Macmillan: New Delhi. The Yogyakarta Principles: An Overview, www.yogyakartaprinciples.org/ principles-en/the-yogyakarta-principles-an-overview/ (accessed on 18 February 2017). Young, Iris Marion. 1990. Justice and the Politics of Difference. Princeton, NJ: Princeton University Press.

15 People and the terrains PESA reconsidered Ajay Dandekar

This chapter takes into account the condition of the people in the context of rights and entitlements ceded to the state as the state strives to assert itself on commanding extractive and centralized mobilization of resources, paving way for a long-term and terminal decay of the people and their resources in the context of the Schedule V areas. It, therefore, argues that the policy status is the result of the uncertainty regarding the larger framework of governance of Panchayats Extension to Scheduled Areas Act (henceforth PESA) in the Schedule V areas that has been adopted as well as a steady decline of the engagement of the state with the ‘Adivasi’ and the terrain they occupy. The chapter discusses the context in which we need to understand the dynamics of deficit and terrains first before the discussion moves into the context of PESA and understanding it. The last part of the chapter addresses the nature and the consequences of the governance deficit and the resultant implications.

I Arguably, 1991 was a watershed moment in the history of India. To many it is the official starting premise to map out the processes emanating from globalization, privatization and liberalization. As is well known, in the year 1991 India entered into what has now become a trinity: liberalization, globalization and privatization, but of what? We will explore this precise question in greater detail. In order to do so there is a need to now revisit the context in which this trinity entered the lexicon of ‘development’ in the policy prescriptions. In December of 2014, Dr Raghuram Rajan, the outgoing governor of the Reserve Bank of India, made a startling admission. Dr Rajan, while analysing the trends in the global economy, articulated that slow growing industrial countries will be much less likely to be able to absorb a substantial additional amount of imports in the foreseeable

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future. Other emerging markets certainly could absorb more, and a regional focus for exports will pay off. . . . Any emerging market wanting to export manufacturing goods will have to contend with this new phenomenon. Third, when India pushes into manufacturing exports, it will have China, which still has some surplus agricultural labour to draw on, to contend with. Export-led growth will not be as easy as it was for the Asian economies who took that path before us. (Rajan 2015) So the agenda of ‘growth’ led by exports with massive concessions to the corporations has come a cropper and has to be abandoned. It is against this complete cynicism that we need to now look at the terrain and governance structure as mandated by the constitution that should have existed in the Schedule V areas of India.

II The Panchayats (Extension to Scheduled Areas) Act, 1996, was enacted after the Bhuria Committee submitted its report in the year 1996. The chairperson of the committee was categorical in his analysis about the need for PESA. In his letter to the prime minister it was stated that the most important fact of the proposed law is that it will remove the dissonance between tribal tradition of self-governance and modern formal institutions, which has been at the root of simmering discontent and occasional confrontations. We are confident that this will mark the beginning of a new era in the history of tribal people. After the new institutional frames become operational, the people will be able to perceive the state apparatus as an extension of their own system in the service of the community, that too, in a crucial phase of modernization firmly rooted in tradition. (Sharma 1995) The challenge of governance has also been duly recognized by the structure of government at the highest levels. Thus, the then Prime Minister Dr Singh conceded as much, we cannot have equitable growth without guaranteeing the legitimate rights of these marginalized and isolated sections of our society. In a broader sense we need to empower our tribal communities with the means to determine their own destinies, their livelihood, their security and above all their dignity and self-respect as equal citizens

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Ajay Dandekar of our country, as equal participants in the processes of social and economic development.

What has been the reality on that count so far? The governance model thought of for instance for the Schedule V areas was nothing short of revolutionary in its conceptualization. The Panchayati Extension Scheduled Areas Act deemed the community competent to govern, to manage its resources, to adjudicate, to preside and approve developmental plans and to monitor them. This was really bringing democracy from below rather than prescribing it from above. The act recognized the gram sabha (a habitation as the natural unit of the community and its adult members as the constituent members of grama sabha, as against the elected gram panchayat) to be pre-eminent. PESA imagines the notion of self-governance in the context of certain features that are embedded in the act. Thus as per Sec. 4 (b) it was accepted that a self-governing community i.e. the gram sabha as its expression would be the basic unit of governance at that level. In the act therefore the gram sabha occupies a pivotal position, and the entire act is centred on the premise that the entity of gram sabha is preeminent. It also is given in the act that the adult members of the habitation constitute the gram sabha at the hamlet level. The act then bestows on that village community, as expressed in the gram sabha, the constitutional authority by stating that the community thus constituted was competent to safeguard the interest and preserve their culture and traditions. The act grants rights over resources such as water bodies, minor minerals, and minor forest produce to the gram sabha and also vests it with rights to regulate the village market and settle disputes. As per the specific provisions of PESA Act, 1996, the gram sabhas and the panchayats are empowered to assume total responsibilities for planning and implementation of plans, programmes and projects. It was agreed in the Raipur Roundtable conference of Panchayat Ministers in 2004 that Gram sabha in PESA areas should be reconstituted on a habitation basis and appropriate powers must be devolved to these gram sabhas so that they have the final say in decisions related to Jal-Jangal-Jameen (water, forest and land) in their geographical jurisdictions. However, in most PESA states, gram sabhas have not been reconstituted. Even the Planning Commission’s Expert Group (2008) maintained that the most crucial task in the implementation of PESA is to redefine the ‘village’. The existing ‘villages’ are purely administrative units. The ‘village’ as envisaged in PESA is a social unit, a habitation or a group of ‘habitations’, ‘comprising a community and managing its affairs in accordance with customs and traditions’. It was suggested through the National Advisory

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Council that the gram sabhas in the PESA areas should be immediately reconstituted on the basis of tribal habitation. It may happen that in some locations the size of gram sabhas may be too small. That is not an issue as long as the reconstituted village reflects tribal homogeneity and conforms to the territorial-cum-habitation boundaries of traditional sabhas of tribes. In terms of administrative management of such gram sabhas (gram sabha meetings, agenda setting and decision making), best practices of Ward sabhas and Palli sabhas from different experiences could be the basis for promoting good practices. It was further suggested that concrete steps as outlined were required to make the structure of gram sabha functional. Thus in a note to the National Advisory Council by a member of Planning Commission it was recommended that (Shah 2012): •

•

•

•

•

•

•

In all areas, a habitation or a group of habitations or a hamlet or a group of hamlets comprising a natural or customary community shall be taken to be the village for the purposes of PESA. Forest villages, unrecorded settlements and settlements within municipal boundaries should always be treated as villages for the purposes of this act. Any settlement being treated as a ‘village’ shall normally consist of less than 100 families in size, except where the collector, for reasons to be recorded in writing, is of the opinion that the village in question is larger. Each gram panchayat should prepare a list of the hamlets/villages of this nature within its boundaries, which should be passed as a resolution by the gram sabha of that panchayat with a quorum of no less than 50 percent. They may seek data from the electoral rolls that are geographically prepared. In addition, public notice should be given that any settlement that wishes to declare itself as a village may do so through passing a resolution to that effect within a time period (with a 66 percent quorum of all adult residents of the settlement) and communicating the same to the district collector and the concerned gram panchayat. A draft list of hamlets within a sub-division shall be prepared by the district collector assembling the lists received from each gram panchayat and any declarations received from individual settlements (which shall override the panchayat list where the two are inconsistent). This draft list will be made public for objections and comments for a period of two months. It will be prominently displayed and widely publicized through audio and visual and print media. On the basis of comments and objections received and physical verification in consultation with the concerned settlement if necessary, list shall be modified.

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Ajay Dandekar In case any village has not been identified through the above process, any resident of such a village may approach the district collector, who should fix a date for and announce a meeting of the said settlement to discuss and decide (through passage of a resolution accepting or rejecting the proposal) whether the same should be treated as a village. This process should be done within a month of receiving such an application. Where the act has already been implemented prior to the division into separate villages, the process should be reinitiated, but rights already recognized may remain undisturbed except where the new village seeks their cancellation. The entire process should be completed in a time-bound manner of not more than three months. Punitive sanctions may be in place on the officers for non-compliance. An independent social audit should be carried out in a time-bound manner to verify the process and rectify mistakes if any in the above process.

The process outlined above would have streamlined the act and made a possible roll out of the act a viable option. However these recommendations, made at the highest level were not adequately considered and addressed. However, even in areas where the gram sabha is clearly empowered to take a decision, such as land alienation, the results leave much to be desired. Here the community had been given only consultative rights, an anomaly that was corrected later in the Forest Rights Act subsequently in the Land Acquisition Act. Over all however, the act, perhaps ambiguous in some ways had complete clarity on three vital issues, viz; • • •

restoration of alienated land to the people as non-negotiable as nontribal cannot possess lands in schedule V areas, the power to control local plans, and resources for such plans including tribal sub-plans, and the power to issue utilization certificates for government works undertaken in their village.

Thus, while the constitutional position is clear the deficit stems from the nonimplementation of the same. What is the nature of this non-implementation? The Ministry of Panchayati Raj in its proposed amendment to PESA provisions argued that The major causes of extremism in areas witnessing the Maoist movement are indifference to the needs of the people in governance, distress

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caused by land alienation and displacement (loss of land, livelihood, collective identity, culture) and lack of control over local resources. Peoplecentric governance and people centric planning & implementation in these areas are essential for containing Left Wing Extremism, and can be brought about through the implementation of PESA in letter and spirit (Dandekar 2016) The National Advisory Council had a trenchant comment on the state of affairs. When passed in 1996, the central PESA envisaged that the nine states with Schedule V areas would enact their own legislations devolving power to their respective tribal communities, as well as amend pre-existing laws to bring them in harmony with PESA within a year. Very little has been accomplished along these lines. Indeed, the gram sabhas have not been appropriately empowered; no serious effort has been undertaken to build their capacity. Land alienation has continued apace. Important resources such as bamboo and tendu have been kept out of the ambit of minor forest produce, over which gram sabhas would have control (NAC 2010). The Sixth Report of the Administrative Reforms Commission revealed that while all states in the Fifth Schedule Area have enacted compliance legislations vis-à-vis PESA, their provisions have been diluted by giving the power of the gram sabha to other bodies. Subject matter laws and rules in respect of money lending, forest, mining and excise have not also been amended. This needs to be done. In the case of defaulting states, the government of India would need to issue specific directions under Proviso 3 of Part A of the Fifth Schedule to establish a forum at the central level to look at violations and enforce corrective measures. The importance of the Annual Reports of the Governors under the Fifth Schedule of the Constitution needs reiteration (ARC 2007). As per the iconic Article 243 N of the Constitution, Notwithstanding anything in this Part, any provision of any law relating to Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier [. . .] Notwithstanding the clarity in the article of the constitution the implementation of the same remains below sub-par. The ARC report pointed that out. As per the ARC report, a large number of Centrally Sponsored Schemes is not compatible with PESA. In addition to that the centres

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policies on a number of issues that affect the Fifth Schedule areas have not been brought in alignment with PESA. Such policies include Mines and Minerals, Resettlement and Rehabilitation of Project Affected Persons, National Water Policy, 2002, National Minerals Policy, 2003, National Forest Policy, 1988, Wildlife Conservation Strategy 2002 and National Draft Environment Policy, 2004, to name a few. As mentioned above, PESA rules must supersede all these acts and orders. It must be the responsibility of the governments and departments concerned to amend the respective acts and orders so that they confirm to PESA rules and regulations. For all practical purposes these acts, orders and schemes, except those modified, should be treated as legally co-opted under the PESA rules. States should however be provided time-bound opportunities to strengthen their administrative machinery in the Fifth Schedule Areas by addressing the issues related to (i) special administrative arrangements, (ii) provision of hardship pay, (iii) other incentives and (iv) preferential treatment in accommodation and education. All expenditure in this regard should be treated as charged expenditure under Article 275 of the Constitution. The Forest Rights Act as passed in the year 2006 is intrinsically linked to the system of tribal governance and PESA as it legislates on the key resource and livelihood arena, the forest. The Forest Right Act 2006, when it came into being, was regarded as very crucial to the rights of millions of tribals and other forest dwellers in different parts of our country, as it provides for the restitution of deprived forest rights across India, including both individual rights to cultivated land in forestland and community rights over common property resources. The notification of rules for the implementation of the Forest Rights Act, 2006, on 1 January 2008, was supposed to pave the way to undo the ‘historic injustice’ done to the tribal and other forest dwellers. Subsequently, detailed guidelines issued by the Tribal Affairs Ministry in August 2009 laid down the practicalities of ensuring the gram sabhas’ participation and consent to projects where forestland is proposed to be diverted for non-forest uses. Besides many other issues, very fundamentally, it has been found that all states have not reconstituted their gram sabhas in accordance with the provisions of FRA, thereby making the FRA dysfunctional and ineffective. Gram sabhas have often been bypassed by the officials of the Forest and Revenue Departments. The parallel bodies such as the department-controlled JFM committees have been empowered in violation of the law. Such violations include constitution of Forest Rights Committees and deliberate efforts to use Joint Forest Management to divide villages and substitute Forest Department–controlled JFM committees for community bodies. All nonland rights in the Act – most of which are community rights – have largely been ignored in implementation.

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Thus, we are at an impasse. Is there a way out of such an impasse and a policy status on the ground? In the last part of the chapter, we will examine the consequences of such an impasse.

III The urgency and indispensability of this approach has already been cogently made out by recent committees such as the Planning Commission– appointed group’s report, ‘Development Challenges in Extremist Affected Areas’ (2008). This stalled process has had its ripple effects. A rough estimate indicates that more than 55 million tribals were displaced since Independence due to the large ‘developmental projects’ by the state. It would appear that land and resource acquisition of individuals and community and the resultant loss of dignity are perhaps at the heart of the growing insurgency in the central Indian tribal heartland areas. Let us examine the implications of how the status has now resulted in a situation that is nothing short of volatile in the tribal areas. In class conflicts, unlike in ordinary sport, it is impossible to have an impartial referee who cries foul whenever there is a violation of the rules by either side. For class war is no game played out between equals based on rules that apply to both sides equally. It is an unequal war between the mighty militarized state that stands in defence of the propertied classes and their ‘right’ to exploit the majority at will and the vast majority of the wretched of the earth – hungry, homeless, emaciated, docile, helpless masses – who, in the eyes of the ruling elites, are not much distinct from the slaves of bygone millennia. Rules are pre-set by these very same exploiters through their constitution with enough provisions for violating the same. Those who imagine themselves to be impartial referees in class war and try to set the rules equally for both sides will ultimately end up as apologists for the oppressors, in spite of their good intentions and sincere attitude. Anyone who thinks that he/she is being impartial in a class-divided society is only a victim of his/her fanciful imagination. So while the state grapples with an inhuman insurgency where the people are caught in a pincer there are deeper challenges that now shape the context in which PESA needs to be looked at. Given the nature of the economy, the extractive tendency which is centralized and the push for make in India, the pace of resource extraction will go up substantially in near future. However as is well-known and articulated by the ex-deputy governor of the Reserve Bank of India, the global economy had slowed down in fact is in recession and is not in a position to absorb another production-led export. This context will determine the shape of things to come, and some signs are already visible. There is a visible out-migration of youth from the rural

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and tribal areas, as livelihood opportunities have shrunk in their habitats. However, the peri-urban and urban economy can only offer cheaper wages and no more, thus allowing for a volatile situation to be created in the near future. Coupled with this is the simmering agrarian crisis that has shaped much of the agrarian landscape. We need to understand this new normal in the Schedule V areas as we look at the issue of PESA and its implementation on the ground. In the rather short history of the republic while the intent of the governance has often been on the side of change the tardy translation of such intent has always remained a question mark. Only in this case, however, the delay may now result in an extremely complex and volatile situation on the ground.

Bibliography Administrative Reforms Commission (ARC). 2007. Sixth Report. New Delhi: Government of India. Dandekar, Ajay. 2016. ‘PESA, the Impasse of the Legislative Process: Democracy and Challenges of Participation in central Indian Tribal Regions’, in Vipul Mudgal (ed.), Claiming India from Below: Activism and Democratic Transformation, New York: Routledge. Expert Group. 2008. Development Challenges in Extremist Affected Areas-Report of an Expert Group. New Delhi: Planning Commission, Government of India. National Advisory Council (NAC). 2010. Recommendations on Panchayat (Extension to the Scheduled Areas) Act, 1996, https://fra.org.in/document/ NAC%20Recommendation%20on%20PESA,%201996.pdf (accessed on 25 June 2018). Rajan, Raghuram G. 2015. ‘Make in India, Largely for India, RBI Bulletin’, https://rbi.org.in/Scripts/BS_ViewBulletin.aspx?Id=15337 (accessed on 25 June 2018) * Talk delivered by Dr. Raghuram Rajan, Governor Reserve Bank of India at the Bharat Ram Memorial Lecture at FICCI on December 12, 2014 in New Delhi. Shah, Mihir. 2012. National Advisory Council (NAC) Recommendations on Panchayat (Extension to the Scheduled Areas) Act. 1996 a Note. Sharma, B. D. 1995. Whither Tribal Areas: Constitutional Amendments and After. New Delhi: Sahyog Kutir.

16 Dilemmas in Kashmir A human rights perspective Simple Mohanty

In the following 5 months since HizbulMujahideen,1 Commander Burhan Wani was killed on July 8 2016, the Kashmir Valley has erupted in protests which have left 96 civilians dead, over 16,000 injured and more than 10,000 arrested by security forces. About 1,200 of those injured have been fully or partially blinded by pellet guns used by security forces on protesters. This now-familiar cycle of protests and killings in Kashmir Valley started in 2008. In 2008, an environmental campaign in the Valley against the transfer of land to the Amarnath shrine board snowballed into violence that left close to 70 civilians dead. Close on its heels, Jammu protests against the revocation of the land transfer to the Hindu cave shrine in the Valley, turned ugly as Hindu right-wing parties orchestrated an economic blockade of supplies to the Kashmir Valley. This resulted in a deep polarization between a Hindu Jammu and a Muslim Valley and for the first time after years of relative peace, cries of azadi rent the air in Kashmir. The 2010 protests, which were a reaction to the Machil2 fake encounter, peaked at the death of an innocent, 17-year-old TufailMattoo, from a tear gas canister. The protests left around 120 civilians dead. In 2013, the protests triggered by the execution of Afzal Guru3 were controlled by stepping up security and putting in place an indefinite curfew in the Kashmir Valley. But the pent-up popular feelings that considered the execution to be a selective one that flouted routine procedures such as allowing Guru to meet his family members before he was hanged found a vent in the 2016 protests triggered by Wani’s death. Another significant factor that fed into the 2016 protests was the sentiment that the People’s Democratic Party (PDP) had betrayed the people’s mandate by allying with the Hindu nationalist Bharatiya Janata Party (BJP) to form a government. This chapter will be divided into the following sections. The first section will trace a brief history of the conflict in Kashmir. The second section will examine the chief arguments of the human rights discourse in the Kashmir Valley and contextualize the conflict in Kashmir in terms of this discourse.

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Then it will turn to the claims of the state–national security discourse predominant in Jammu and parts of Ladakh and counterpoise it with those of the rights discourse in the Valley. The fourth part of the chapter will look at the specific set of demands framed also in terms of human rights by the Kashmiri Pandits and some of their organizations such as the Panun Kashmir. The final leg of the chapter will try to make sense of the dilemmas thrown up by over three decades of conflict which have drifted people apart and seen human and material loss of gargantuan proportions; it will pursue a dialectical approach in an effort to weave together elements of truth in contradictory positions (claims and counter-claims) and, falling short of offering solutions, will nonetheless make prescriptive arguments for things that need to be fixed urgently in Jammu and Kashmir to stem the tide of alienation of the masses.

Historical background The history of the conflict in Kashmir is convoluted and goes back to the Treaty of Accession signed by Maharaja Hari Singh of Kashmir on 26 October 1947. However, a few words about its earlier history would be elucidating. A princely state during the British colonial period, Jammu and Kashmir was created by the British in 1846 with a Hindu Maharaja, Gulab Singh, ruling over a Muslim majority population. It consisted of three religiously and linguistically diverse regions: the Kashmir Valley with a largely homogeneous Muslim population since the 1989 Hindu exodus, the Jammu region, which is Hindudominated, and the Ladakh region which is half Buddhist, half Muslim. Successive generations of Dogra rule saw widespread discrimination against Muslims throughout the princely state. For instance, the 1927 ‘state subject ordinances’ protected employment chiefly for citizens of the state but primarily benefited the Hindu minority in both the Valley and the Jammu region. Muslims in the Valley could not carry firearms and were debarred from joining the army. The Dogra rule was beneficent to the Kashmiri Pandits, however, who enjoyed positions of power and perks along with the ruling clan of the Rajputs. The misery of the Kashmiri Muslims, driven to penury under Dogra rule, has been well documented.4 The episode of the Pashtun tribal raiders backed by Pakistan following closely on the heels of Partition in 1947 was another trial for the Kashmiris, leaving plunder and rape in its train. With the British exit from India earlier that year, the princely state of Kashmir as well as the 560 other princely states had been advised by the departing colonial power to join either of the two dominions – India or Pakistan. The then Maharaja of Kashmir, Hari Singh, who had been hesitating to join India, was forced to

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request military assistance from India, as he was unable to defend Kashmir from the invasion by the tribal raiders (Tremblay 2009: 927). His hesitation was prompted by two factors. One, he nursed ambitions of ruling an independent Kashmir. Second, the National Conference party, which had been launched in 1939 against the Maharaja and to improve the lot of the impoverished Muslim peasants of Kashmir under the leadership of Sheikh Mohammad Abdullah, enjoyed the support of the Indian National Congress. Both parties cherished secular and socialistic goals. Sheikh Abdullah successfully united Hindus and Muslims in their opposition to Dogra rule by espousing the composite Kashmiri identity of Kashmiriyat, irrespective of religion. The ‘Quit Kashmir’ movement against Dogra rule in 1946 was supported broadly by the Indian National Congress, including Congress leader Jawaharlal Nehru, who was a Kashmiri Hindu. If anything, the raid had turned popular Kashmiri sentiment against Pakistan. India, however, insisted on providing military assistance to the maharaja only on the condition that he formally acceded to India. Hence Maharaja Hari Singh signed the Instrument of Accession on the morning of 27 October 1947. India’s governor general, Lord Mountbatten, accepted the offer of accession under special circumstances and informed Maharaja Hari Singh that the question of accession would be placed before Kashmir’s population once the territory had been cleared of tribal raiders. Nehru immediately confirmed this conditional acceptance and in a detailed statement to the Constituent Assembly of India reiterated the ultimate right of the people of Kashmir, under the supervision of an impartial international tribunal such as the UN, to decide their future political association (Tremblay 2009: 928). The subsequent war between India and Pakistan in 1947–1949 saw the princely state being divided between India and Pakistan along the ceasefire line, later known as the Line of Control. Two-thirds of Jammu and Kashmir was liberated from the tribal invaders with the help of the Indian army and brought under Indian jurisdiction. The other third, under Pakistan’s control, came to be known as Azad Kashmir. In Pakistan, Kashmir is often seen to have been wrested away by Indian force, while India sees Pakistan as an irredentist aggressor seeking to take Kashmir by force (Staniland 2013: 933). Meanwhile, in Jammu and Kashmir, the Maharaja left the state after the conditional accession, and Sheikh Abdullah was appointed as the head of an interim emergency administration, which was replaced shortly thereafter in 1948 by an interim popular government with the sheikh as prime minister. The next few decades of politics in J&K saw cycles of cooperation and confrontation between Abdullah and New Delhi. Initially, the Indian Constituent Assembly and later the Indian Constitution accommodated a

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distinct Kashmiri identity through Article 370 which reflected Jammu and Kashmir’s unique and asymmetric constitutional relationship with India. It created a special status for the state, unlike any other state in the Indian federation. Article 370 restricted the central government’s powers solely to the areas of foreign affairs, defence and communications, allowing the state government full legislative powers in all other areas. Further, the provision reaffirmed the ‘state subject requirements’ which precluded non-citizens (of J&K) from state employment and ownership of property. But Jammu’s Dogra population did not approve of a special status for Jammu and Kashmir, and in 1952, the PrajaParishad – a Jammu-based party which had affiliations with numerous pro-Hindu organizations – launched an agitation for the full integration of the state with India. This movement had a profound impact on Sheikh Abdullah, who began seriously considering the option of independence for Jammu and Kashmir. Abdullah was concerned that given the overt expressions of Hindu chauvinism in Jammu, it would be difficult to convince the Valley’s population that their Muslim identity could be effectively protected within India. Hence the NC’s working committee adopted a resolution seeking complete independence for the state in 1953. In the same year, Abdullah was dismissed from office and incarcerated by New Delhi, which feared that he was growing too independent from the centre and cosying up to external powers like the United States. (He was released in 1964 at Nehru’s urging.) A rift was engineered in the NC, and puppet governments backed by New Delhi dominated the Valley. National governments at the centre took great care to manipulate the local political scene in Jammu and Kashmir in order to push integration of the state with India. The 1952 Jammu agitation and Abdullah’s independentist response prompted the Indian state to begin integrating the state of Jammu and Kashmir into the Indian federation as a matter of deliberate policy (Tremblay 2009: 931). There was social resistance to the centre’s project. Mass protests erupted in Kashmir Valley in the 1960s, triggered by the disappearance of a holy relic – a hair from the beard of Prophet Mohammad – from Srinagar’s Hazratbal shrine. The watering down of J&K’s autonomy was sorely resented by many Kashmiris. Nevertheless, these protests were eventually defused by co-optation, repression and distribution of widespread patronage to quench informal nationalism. A final deal inked between Abdullah (after several rounds of incarceration) and Indian Prime Minister Indira Gandhi in 1975 saw him end his opposition to Delhi and return to the helm of Kashmir’s politics. Abdullah had not abandoned his views on Kashmir’s autonomy, but the altered geo-political South Asian scenario which saw Pakistan lose the Indo-Pakistani War of 1971 and the liberation of Bangladesh with India’s assistance left him in a weak bargaining position. India’s

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aim was to consolidate its position in J&K using Abdullah’s good offices. The period from 1975 until 1982 was one of relative stability, though it was never institutionalized beyond the personal prestige of Abdullah (Staniland 2013: 934). Upon re-entering the political arena, in 1975, Abdullah reintroduced the issues of identity and autonomy into the state’s political discourse. Abdullah’s demands amounted to a call to return to the pre1953 asymmetrical federalism and autonomy within the Indian Union – a far cry from the patronage politics of 1953–1975 (Staniland 2013: 934). However, Abdullah’s death in 1982 shifted power to his son Farooq, whose weak leadership abilities intersected with Indira Gandhi’s centralizing agenda to disastrously undermine stability in the Valley. As Delhi became more involved in manipulating politics in the Valley, dissident voices gained strength and contested the 1987 state elections under the banner of the Muslim United Front (MUF) (Staniland 2013: 934). These elections were rigged to maintain NC and Indian National Congress Party control, and political activists linked to the MUF were imprisoned without bail for months under the state’s draconian Public Safety Act and treated inhumanely (Habibullah 2011: 73). Many of these young men, with important material backing from Pakistan, went on to lead the 1989 insurgency that directly challenged Indian control. The violent insurgency which was originally confined to the Valley soon affected the Muslim majority areas of Jammu province. The Jammu and Kashmir Liberation Front (JKLF) was its chief secessionist arm, while the HizbulMujahideen and later Lashkar-e-Toiba represented its irredentist wings. While the period from 1990 to 1995 (intifada phase) saw massive street demonstrations, killings and bombings primarily by the JKLF, the years from 1996 to 1998 (phase of atrophy) saw a fragmentation of the insurgency into azadi and pro-Pakistan camps. This was a precursor to the fidayeen phase (1999–2002) which saw a renewal of insurgency with a radical Islamist ideological colour and the ascendancy of Pakistan-based militant groups using fidayeen (suicide-squad) tactics against Indian forces (Bose 2003: 107). India has followed a dual strategy of aggressively eliminating militants while trying to engage moderate separatist groups in dialogue (Tremblay 2009: 937).

Human rights discourse in the Kashmir Valley Let’s begin with some statistics that sum up the whole story of violent conflict in Kashmir Valley. Since 1989, an estimated 70,000 people have been killed (Amin 2016: 54). As many as 8000 civilians have been subjected to enforced disappearance. As many as 6217 unmarked graves and mass graves

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have been found in five districts: Kupwara, Baramulla, Bandipora, Poonch and Rajouri . It is contended that these mass graves contain the bodies of the disappeared persons and those killed in fake encounters in the Valley during the insurgency. The Association of Parents of Disappeared Persons (APDP) has repeatedly demanded a free and fair investigation into these and demanded DNA tests for identification. In 2011, the State Human Rights Commission (SHRC) endorsed the findings on mass graves and demanded their identification through DNA investigations. However, New Delhi’s position is that the bodies are of foreign militants and hence do not need identification. It turned down the suggested investigations on the plea that it has the ‘potential of hurting the local sentiments’ and can ‘trigger serious law and order disturbances’ (Amin 2016: 54). In their 804-page report titled‘Structures of Violence: The Indian State in Jammu & Kashmir’, the International People’s Tribunal on Human Rights and Justice in Indian-administered Kashmir (IPTK) and APDP document extrajudicial killings of 1080 persons and enforced disappearance of 172 people. This report illustrated the pattern of violence through individual cases and exposed the complex interplay of army camps, intelligence agencies and other armed groups which act as structures of violence in each crime. In a first, this report calculated the strength of the armed forces in Kashmir, putting the numbers between 656,638 and 750,981(Amin 2016: 54). Hence the main arguments of the human rights discourse in the Kashmir Valley can be summed up as follows: •

•

•

•

•

Kashmir has had a history of being ruled by unrepresentative, corrupt, puppet regimes installed at the behest of the central government, which also oversaw the erosion of its promised autonomy and the undermining of the asymmetrical federation envisaged by the Indian Constitution. The root cause of the armed insurgency of 1990 was that opposition to such undemocratic rule was denied legitimate institutional space, leading to it acquiring an anti-systemic character. The demand for autonomy soon crystallized into the rallying cry for azaadi. The Indian state hit back with sustained counter-insurgency operations that often involved crackdowns,5 repression and human rights violations, drawing censure from human rights watchdogs Hence India’s military presence in the Valley is viewed as that of an occupation force, seeking to crush not just the armed insurgency but also the resistance movement for azaadi. Third-degree torture at the infamous Papa 2 interrogation centre (one of the causes of the enforced disappearances and shut down

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since 1996), several cases of firing on unarmed protesters causing heavy civilian casualties which have gone uninvestigated (Gawakadal massacre,6 Tengporaand Zukoora massacres), allegations of mass-rape (Kunanposhpura case) and fake encounters (Machil, Pathribal)7 were the order of the day in Kashmir when counter-insurgency operations were at their peak. While there is a relative decline in the scale and tenor of human rights violations by security forces with the successful decimation of armed insurgents by the early 2000s,8 an environment of impunity for the security forces, especially the armed forces continues, with much-hated laws like the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act (PSA) still in place. These laws supplant the ordinary criminal justice system, which has its own procedures and human rights safeguards, leading to loss of faith of the common masses in the rule of law. While the former bypasses accountability of army personnel in causing civilian deaths, the latter has seen tens of thousands of people, often teenagers, being arbitrarily arrested and detained. These laws contravene instruments of international law such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, United Nations Convention against Torture and the International Convention for Protection of All Persons from Enforced Disappearance, among others, to all of which India is a signatory. (Amin 2016: 52) What the people want in cases of killings of innocents due to mistaken identity such as happened in Budgam in 2014 is not compensation but closure and punitive justice. That would drive home the message that human life is not cheap and dispensable in the Kashmir Valley. The path to justice for many Kashmiri Muslims yearning for selfdetermination goes through the plebiscitary route. Kashmiri Muslims across the board crave democratic freedoms, an end to the existing level of militarization of their lives and society, an end to human rights violations and justice for the families of victims of human rights violations.

To this end, several Kashmiri human rights defender groups have sprung up and, with the support of Kashmiri writers, academicians, journalists, scholars and students unions, dialogue groups, the Bar Association, trade unions and business chambers, have resisted and documented atrocities committed by the Indian military and paramilitary forces and have demanded the right to self-determination. Prominent among the organizations contributing to a vibrant human rights movement in the Kashmir Valley are the Jammu & Kashmir Coalition of Civil Society (JKCCS), the

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Kashmiri Women’s Initiative for Peace and Disarmament (KWIPD) and the Jammu and Kashmir Trade Union Centre (JKTUC) and the Jammu and Kashmir High Court Bar Association to name a few. However, there are not many takers for these arguments in Hindu-dominated Jammu and Buddhist-dominated Ladakh regions of Jammu and Kashmir, where an alternative discourse prevails. It is to this that we turn our attention now.

State-security discourse prevalent in Jammu and Ladakh Most Hindus of Jammu, who have always resented the end of Dogra rule and expressed antipathy towards the Kashmir-centred state leadership, have demanded more resources and a greater say in the governance of the state. They cannot relate to the azaadi movement or the right to self-determination of Kashmiris and brand the Kashmiris anti-national for their refusal to integrate fully with India. They generally support the role of the military and paramilitary forces in Jammu and Kashmir as being necessary in a militancyinfested state and in the national interest.9 Their grouse is that the Kashmiris have been a pampered lot by the Indian government, which has neglected the interests of Jammu despite their nationalist and integrationist positions. During the Amarnath Land agitation of 2008, the demand of the Hindus was articulated as return of Baba Bhole’s land to the Shri Amarnath Shrine Board (SASB). Among other demands of the agitation were an end to Jammu’s discrimination, full integration of the state with the Indian Union and even trifurcation of the state. Ladakh, which aspires for union territory status within the Indian State, has a similar narrative to Jammu’s. As the interlocutors to the state appointed by the UPA government have observed in their 2012 report, communal polarization has gone quite far in Jammu and Ladakh, both in relation to the Valley and between parts of the two regions. Each of the three regions feels it is held hostage by the other(s), and this fuels volatility. Each of the three regions also feels discriminated against by the state government in terms of the allocation of funds, jobs, selections and promotions. This perception refuels communal tensions with an impact within the regions as well as between them. The Muslim and Hindu majority districts of Jammu, for example, are steadily drawing apart rather than coming together; similarly, the Muslim and Buddhist districts of Ladakh are becoming increasingly distant, even acrimonious; indeed the two Autonomous Hill Development Councils have not held a single joint meeting, though each would benefit from cooperative planning. There is a general sentiment in Jammu and Ladakh that they need to be ever more strident in their expression in order to have their grievances and aspirations heard by the State and Union governments. In

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Jammu, additionally, the cumulative impact of migration, especially of Pandits, has contributed to political radicalization. (Kumar et al. 2012) The main arguments of the discourse prevalent in Jammu and Ladakh are as follows: • •

•

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•

Jammu and Kashmir is an integral part of India and there is no political dispute regarding its status. Militants are more responsible than the security forces for the human rights abuses in Jammu and Kashmir. Militancy is actively fuelled from across the border by Pakistan. The military, paramilitary and police forces must be lauded and given full support in their counter-insurgency operations; hence any move to rollback AFSPA or demilitarize would jeopardize the security of the state. Through the decades of conflict in Jammu and Kashmir, there has been a huge inflow of developmental resources from the central government to the Kashmir Valley, largely bypassing Jammu and Ladakh. Hence the nationalistic and patriotic people of Jammu and Ladakh have been given a raw deal by the Kashmir-centric state leadership as well as by the central government, while the ‘anti-national and secessionist forces’ in the Valley have been pampered and rewarded. Most influential shades of opinion in Jammu resent the special status enjoyed by the state under Article 370 of the Indian Constitution and hold it responsible for breeding alienation among Kashmiri masses.

The Kashmiri Pandit discourse on human rights Kashmiri Pandits’ demands include a return to their homeland from which they were ousted by the gun culture and increasing Islamization of the Valley in 1989–1991. They want compensation packages from the government and resources for their rehabilitation and above all want to be guaranteed a safe return to the Valley. The politically radicalized Pandits played an active role in the Amarnath land agitation in Jammu. The main arguments of the Kashmiri Pandit discourse are: • •

The conflict in Kashmir is not an indigenous political struggle for freedom but a hardcore Islamist movement backed by Pakistan. One of the chief representative organizations of the Kashmiri Pandit migrants, the Panun Kashmir, claims that Islamic terrorists in Kashmir created fear and insecurity among Kashmiri Pandits by murders and

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Simple Mohanty rapes in 1989–1991, forcing them to leave their homes and hearths at gunpoint. This was responsible for the exodus of 95 percent of the Kashmiri Pandit population in Kashmir, numbering approximately 300,000.10 Calling it an ‘ethnic cleansing’, Panun Kashmir claims that it was effected with the intention of clearing the Valley of religious minorities so that its Islamization could be speedily achieved. A separate homeland should be carved out for the Kashmiri Pandit refugees within the Kashmir Valley to ensure their safe return and that this homeland should be placed under the central administration with a Union Territory status.

Dilemmas and the dialectics of their reconciliation The preceding discussion brings to the fore the deep divisions and dissensions characterizing inter-communal relations in Jammu and Kashmir which have both been aggravated by and further entangled the knotty Kashmir conflict. Even the results of the Assembly elections in 2014 reflected the polarization in Jammu and Kashmir with the neat division of seats between the ultra-nationalist Bharatiya Janata Party (BJP) and soft-separatist People’s Democratic Party (PDP) in Jammu and the Valley respectively. There are elements of truth and exaggeration in each of the afore-mentioned human rights discourses, throwing up dilemmas before all the stakeholders of Jammu and Kashmir besides policymakers, writers, scholars, scribes, academicians, thinktanks and other entities grappling with the Kashmir imbroglio. If the practitioners of each discourse remain entrenched in their rigid positions, refusing to see the shades of grey, then in all likelihood the wounds of Kashmir would continue to fester and precious lives – whether of the people of Kashmir or of the security personnel – would continue to be lost. The only way to break the stalemate in Kashmir would be to dare to be open to an idea from the contradictory/opposite camp. If ever a crisis needed a dialectical approach, the Kashmir conflict needs one. Take the rights discourse in the Valley. There is no running away from the fact staring you in the eye of past and continuing human rights abuses by security personnel in the Kashmir Valley. There is no justifying the erosion of the promised autonomy to the state or the rigged elections scenario and the denial of democratic politics for decades. Even an apology from New Delhi acknowledging wrongs committed in Kashmir would go a long way in pacifying the sentiments of the people. Provided also that New Delhi changes its status quo of seeking a military solution to the Kashmir problem and seeks a political solution by initiating dialogue with all stakeholders. And talks need not wait for the guns to fall silent.

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Yet even this discourse is not completely free from chinks in its armour. For instance, there is also a great degree of truth in the contradictory discourses (whether Jammu-Ladakh or Kashmiri Pandit) that not enough has been done to clamp down on certain elements in Kashmir, who harboured hatred for and targeted Kashmiri Pandits which caused their exodus. Hardened extremists have also caused human rights violations as in the cases of the Sangrampora (1997), Wandhama (1998), Chhattisinghpora (2000) massacres to name a few, where Pandits and Sikhs in the Valley were killed in most cases by Lashkar-e-Toiba (LeT) militants. It may be argued that the local Kashmiri Muslim population had nothing to do with these and were equally outraged by these dastardly acts of militants. Yet some introspection is called for within the azaadi camp especially today, when tens of thousands of locals turn up at the funerals of slain militants (and here I don’t have in mind Burhan Wani, whose death raises some question marks, as locals claim he was a Robinhood-like figure without a single FIR filed against him and was killed in an ‘encounter’ that lasted hardly 5 minutes) – even foreign militants-to pay their last respects and civilians also rush to the encounter site where fire is being exchanged between security forces and militants, to help the latter escape. This was seen in the recent Kulgam encounter where a video shows locals attacking the army van carrying the bodies of the martyred soldiers after the operation. Bearing hatred towards soldiers or security personnel stationed on the ground who are merely carrying out their orders legitimately (this was no Macchhil or Pathribal) will lead nowhere. Hence when it is demanded – and rightly so – that the Indian state eschew a military approach to the Kashmir tangle, this logic should equally apply to the supporters of azaadi. If they claim to be peaceful protesters, the protests should be ‘peaceful’ in letter and spirit. If it is true that the Indian state cannot retain Kashmir with the barrel of the gun, it is equally true that violent extremism backed by Pakistan cannot bully the Indian state into acquiescing on Kashmir. Having said that, the other discourses (Jammu-Ladakhand Kashmiri Pandit) are also riddled with dilemmas. Not to empathize with the genuine suffering of several generations of their fellow subjects in the Kashmir Valley facing brutalization and at the receiving end of human rights violations by the Indian state and its security apparatus is to show a rare insensitivity, which has prompted the accusation that all India cares about in Kashmir is the territory, not the people. To look at every Kashmiri as a militant or a Pakistansympathiser is to see things from the prism of Islamophobia. To deny the ethno-political roots of the Kashmir conflict, although it may have acquired religious overtones in recent years, is to turn a Nelson’s eye to the reality. To want to force the Kashmiri Muslims to integrate with India and give up their autonomous status guaranteed under Article 370 of the

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Indian Constitution is to cause a serious breach of trust as accession to India was premised on the guarantee of an autonomous status for Jammu and Kashmir. Emotional integration of the people must precede legal integration if at all. It is not the article in question which has bred alienation among the Kashmiri masses; rather its dilution and erosion over the years, leaving it bereft of substance, has. Finally, Kashmiri Muslims alone cannot be accused of taking recourse to a strident assertion of their religious identity in conflict-ridden times. It may well have been their response to the highhandedness of a de-facto Hindu state.

Concluding remarks Summing up, there is the need for a fundamental shift in the response of the Indian state and its security apparatus in terms of addressing the core political demands of the Kashmiris – be it demilitarization, autonomy or self-determination. Had the autonomy intended for the state by the makers of the Indian Constitution been respected, the demand for azadi may never have been articulated. History bears witness to the observation that when smaller voices of dissent articulating legitimate demands are stifled, it only begets a larger conflagration, with more serious consequences. Hence policymakers in India as well as other state subjects need to accept that many Kashmiris want greater autonomy or independence. They want demilitarization and the phasing out of draconian laws such as the AFSPA and PSA. They want an end to crackdowns, illegal detentions and human rights violations. In turn, the proponents of azadi must factor in the political inclinations of the non-Muslim subjects of Jammu and Kashmir and not be self-obsessed. They must actively aid the return and rehabilitation of Kashmiri Pandits in the Valley, though the idea of separate enclaves for them would create more problems than it would solve.11 All this points to the immediacy of dialogue with all stakeholders and shades of opinion in Jammu and Kashmir. Finally, even the Supreme Court has found unacceptable the ‘prolonged, permanent and indefinite’ deployment of armed forces in Kashmir as it mocks our democratic process. If the Indian state truly values its heroic soldiers and other security persons, it should seriously rethink its strategy of pitting its forces against its own defiant and now fearless population.

Notes 1 HizbulMujahideen is an indigenous militant group in Kashmir holding a pro-Pakistan ideology. A proscribed terrorist organization in India, it is understood to have a strong nexus with Pakistan-based terror outfits. 2 In the Machil fake encounter in north Kashmir in 2010, the army had picked up three young men on the promise of finding them jobs and had killed them by passing them off as militants trying to infiltrate into India

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from Pakistan. An army court martial in 2015 has awarded life sentence to six of its personnel found guilty, making this the first instance where armed forces have been punished for human rights abuse in the Valley. Afzal Guru, a former Kashmiri fruit merchant, was sentenced to death for the 2001 attack on India’s Parliament. On death row since 2002, he was executed at Tihar jail in Delhi in February 2013. He was found guilty of arranging weapons for the attackers and of membership in Jaish-e-Mohammed, both of which he denied. For a detailed account, see Schofield (2003: 9–17). See Bose (2003: 113–14). The term ‘crackdown’ ‘denotes operations in which large detachments of gun-toting troops arrive in convoys of jeeps and trucks, cordon off an urban neighbourhood or a village, and require all men to come out of their homes and gather in an open space, such as a school yard. Masked mukhbirs (informers) would then be set to work identifying “militants” (the term for guerrillas) and those civilians especially active in helping and harbouring them. In the meantime, soldiers would conduct house-tohouse searches looking for weapons, explosives and hidden insurgents. Allegations of theft of money and valuables, vandalism and molestation of women and girls during these intrusive searches rapidly became commonplace’. For a more detailed account, see Schofield (2003: 148). In the Pathribal ‘encounter’ in Anantnag district in March 2000, five innocent civilians were allegedly killed by Indian Army personnel, passing them off as ‘foreign militants’ responsible for the Chattisinghpora attacks. See RiyazWani. 2014. ‘Justice Eludes Pathribal’, Tehelka, 11(6). See South Asia Terrorism Portal. From 4507 annual fatalities in terrorist violence in J&K in 2001, the figures have come down to 43 in 2016. Author’s personal interview of Prof.RekhaChowdhary in Jammu on 28 December 2013. For greater details, see ‘Kashmir Documentation: Pandits in Exile, Panun Kashmir Movement’ (2004: 61), http://www.panunkashmir.org/publications/ Kashmir%20Documentation%20-%20Pandits%20in%20Exile.pdf (accessed on 25 June 2018). Author’s personal interview of Shujaat Bukhari, Editor, Rising Kashmir, in Srinagar on 13 July 2014.

Bibliography Amin, Mudasir. 2016. ‘Civil Society and State in Armed Conflict: A Historical Perspective of Their Contestation in Indian-Controlled Kashmir’, Economic and Political Weekly, 51(46), November 12: 54. Bose, Sumantra. 2003. Kashmir: Roots of Conflict, Paths to Peace. New Delhi: Vistaar Publications. Habibullah, Wajahat. 2011. My Kashmir: The Dying of the Light. New Delhi: Penguin Books India. Kumar, Radha, M. M. Ansari, and DileepPadgaonkar. 2012. A New Compact with the People of Jammu and Kashmir. Final Report of the Group of Interlocutors for J&K. Schofield, Victoria. 2003. Kashmir in Conflict: India, Pakistan and the Unending War. London: I. B. Tauris.

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Staniland, Paul. 2013. ‘Kashmir since 2003: Counterinsurgency and the Paradox of Normalcy’, Asian Survey, 53(5): 931–957. Tremblay, ReetaChowdhari. 2009. ‘Kashmir’s Secessionist Movement Resurfaces: Ethnic Identity, Community Competition, and the State’, Asian Survey, 49(6): 924–950. Wani, Riyaz. 2014. ‘Justice Eludes Pathribal’, Tehelka, 11(6).

17 Beyond conclusions Discourse on rights in India: a case for reflective autonomy Bijayalaxmi Nanda and Nupur Ray

The structural unity of the chapters spread over the three sections in the book lies in the fact that they strive to identify analytical gaps in the existing rights discourse in India and systematically map out a nuanced approach to engaging with the debates and dilemmas. The chapters address the analytical gaps by exploring the methodology of the construction of the rights discourse and its critique. The debates and dilemmas in the rights discourse in India are critically evaluated and illuminated by using the various tractions of class, caste, gender, religion, region, disability and age. They bring to the forefront two important dimensions of political and social complexity: the interaction between these social structures and the multiple ways of understanding and analysing the debates and dilemmas. The collective outcome of this volume, we hope, is to bring about a systematic treatment of the rights discourse in India through a theoretical, historical and contemporary understanding. The volume represents an interlinking of theory with practice and has as its goal to identify the debates and dilemmas in the rights discourse as well as provide insights towards negotiating and resolving the issues. In this conclusion first, we strive to provide the various insights towards confronting, negotiating and developing strategies to address intersectional issues in the development and application of the rights discourse in India. Next, we discuss the relevance of the feminist critique which has emerged in some of our chapters as a significant approach to understanding the issues and concerns. We have provided the understanding of the historical foundation of the theory of rights in the introductory chapter. Here in the conclusion, we mainly emphasize the significance of the feminist critique of the same in order to draw on its relevance for the larger theoretical mapping of the rights discourse. The Indian philosophers and leaders have also heavily leaned towards an analysis which has included gender as a crucial category in order to nuance both discrimination and rights. By using their ideas as an example, we claim the feminist critique as a crucial tool not just

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for understanding women’s subjectivity and oppression but as a method to enrich the larger discourse of rights. The theoretical concepts of intersectionality, diversity and autonomy are discussed at length in order to develop a better understanding of the complex world which unfolds therein. In the last section, we present our approach of reflective autonomy to address the issues and contestations emerging from the rights discourse.

Mapping theory and practice in India’s rights discourse In the section of ‘Theorizing Rights: Diversity and Difference’ our main aim was to provide an overarching framework to the understanding on rights. In the opening essay Manoranjan Mohanty, after elucidating the various patterns of exclusion and inclusion present in the class, caste, gender structures in India, suggests the new terminology of ‘creative society’ in order to understand and enrich the rights discourse in India. A ‘creative society’ is one in which subdued contradictions become active and manifest. Oppressed classes, castes and women seek fulfilment of their creative potentialities and become aware of the hurdles that lie in the path of creativity. The simultaneous recognition of dimensions of power and actual life experience leads to interconnecting and finally individuals and groups with both their specific and multiple identities and their contradictions move forward. Ashok Acharya’s chapter argues for a reading of the constituent assembly debates in order to understand how the constitution combines citizenship rights with group-differentiated rights. Vidhu Verma in her chapter explicates the global feminist and transnational feminist approaches and argues for looking at the limitations of both. She engages with the institutional processes and practices and the ground realities in order to have an effective understanding of the rights discourse. Anita Tagore’s chapter specifically looks at the questions of gender, law and family. She examines court judgements in order to reveal their limits in providing gender justice in India. She argues for an ideological consciousness of equality which permeates the family, state, its laws and institutions. Brooke Ackerly’s chapter explores the project of climate justice in order to explain the rights discourse within the environmental concerns of India. It provides a range of well-thought-out principles which combines methodological approaches in order to retrieve human rights theory which bridges the relativists’ concerns about universalizing and the activists’ commitment to justice. Mitu Sengupta’s chapter examines the state-led measures to curb corruption and points out its limitations. She argues instead for a human rights approach, thereby resolving the vast economic inequalities among people in the country and dealing with the corruption and inefficiency.

Beyond conclusions 383 The second section, ‘Gender, Religion, Caste, Family, Politics, Work and Religion: Issues and Contestations’, uses Gender as a useful category to reflect on the overlapping concerns of caste, family, work, disability, politics and religion. Bijayalaxmi Nanda in her chapter examines the practice of sex-selective abortion in India. She analyses the state, feminist and global discourses around the issue especially the debates around pro-life versus pro-choice perspectives. She argues for a syncretic feminist approach to conceptualize and counter sex-selective abortion in India. Nupur Ray’s chapter critically examines the arguments around prostitution in India. She dissects the approach regarding prostitution as work and lays down the basic premises of work as dignity and self-respect. She argues for a combination of a liberal equality argument drawn from Dworkin and a capabilities approach drawn from Nussbaum and Sen as resolving the debates around women in prostitution and sex work in India. Mary John’s chapter by using the example of reservation of seats for women in Parliament enriches the debates around class, caste and gender interconnections. She critiques the women’s movements for not being alert to the sensitivities of these interconnections and argues for a nuanced and intersectional approach for women’s inclusion in Parliament structured through an understanding of the power relations mediated through class and caste on gender. The chapter in this section by Flavia Agnes critically examines the interplay between gender, religion, state and judiciary by the case study of the recent debates about triple talaq in India. She argues that using of the trope of the triple talaq by a right wing state and other groups has reinforced stereotypes about the Muslim community. Her article has focussed attention on the Supreme Court’s directive issued at the end of the hearing regarding the use of a conditional nikahnama to restrain husbands from pronouncing arbitrary and instant triple talaq. Flavia has made an argument about raising legal awareness about their rights amongst Muslim women. Anita Ghai’s chapter draws attention to the caregivers of persons with disability and the need to deconstruct the rights of persons with disability in order to include legislative provisions with focus on the intersections of gender, disability and caregiving. The final part of this volume refers to ‘The myth of conflicting and competing rights: A Critique of the Indian State’ in the new intersections that have emerged. The issues related to children, caste-based discrimination, disability and care work, sexual minorities, regional security, tribal and forest rights are examined succinctly. The chapter by Harsh Mander emphasizes on the argument that recognizing child rights as rights will provide a deepening of the rights discourse. It offers the profound implications of engaging with empathy as an approach to resolving the debates and dilemmas. Krishna Menon’s chapter by using an empirical study of

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the exclusion of Dalits from Karnatik music develops a narrative of their experiences of the rights discourse. She attempts to analyse the outcome of the same on the Dalits and based on this narrative argues for recognizing ‘cultural liberty’ as an important domain for providing a foundation for inclusive equality. Skylab Sahu studies the debates and dilemmas of the rights discourse regarding the transgender community in India. She argues that a mere legal recognition of transgender people as citizens does not provide them the right to dignity and inclusion as equal members of the state. A reassessment of the understanding of dignity, equality and freedom in terms of sexual identities is necessary for any rights to be substantively available to the transgender community in India. The chapter by Ajay Dandekar critically examines the conflict between forest rights and the rights of the marginalized communities in India. He argues for a nuanced approach of weighing options across development indicators and democratic mechanisms and strengthening the indices of democratic participatory processes in order to ensure the ending of domination and deprivation. Simple Mohanty’s chapter on the much-discussed Kashmir issue examines the debates and dilemmas related to people’s participation and securitization of the region. It ultimately appeals for a human rights approach in order to achieve a middle ground between the two, keeping in mind the multiple areas of deprivation and disadvantage that exist in the region. All the chapters in this volume refer to the debates and dilemmas on the rights discourse in India. They raise important questions about the various structures and categories at play. The role of the state, market and family are also brought into the ambit of the discussion. All the essays also provide a theoretical mapping and a nuanced approach to engage with the debates and dilemmas. These approaches are not in unity, however very clearly there is a certain syncretic quality to their answers. There are references to a human rights approach, the environmental perspectives and use of feminist lens to unfold and bring out the nuances of rights discourse in India. The feminist approach has also been used by some authors to enrich their debates or provide a peg to underline the strength of their arguments. Drawing on the moderate, syncretic and combined approach provided by them and the centrality of feminist theorizing in some of the leading essays, we strive to forward the concluding arguments for resolving the debates and dilemmas around the rights discourse in India.

Feminist interventions: a critique of the theoretical foundations of rights In this section we look at some of the significant feminist critiques of liberal theory of rights with a focus on John Rawls’s proposition of rights

Beyond conclusions 385 embedded in his two principles of justice being the breakthrough in rights discourse. We eventually make an attempt to argue for these feminist interventions as analytical tools to delve into the larger discourse on rights, taking into account questions of intersectionality and marginalization.

The scope of ‘justice as fairness’ and its critique Over the years, Amartya Sen has formulated two lines of critique of Rawls’s theory – one related to Rawls’s use of primary goods for interpersonal comparisons and a second critique related to a limited scope of his theory for gender justice. Sen begins with the argument that ‘justice as fairness’ deals with physically and mentally disabled people in an unsatisfactory manner (Sen 1980). The ‘difference principle’, which determines how well off someone is in terms of income and wealth only, would not justify any redistribution to the disabled on grounds of her disability. This disability could be due to physical characteristics, environmental diversities, variations in social climate, differences in relational perspectives and distribution within a family. It could also be due to different identities of caste, race or class and gender as responsible for discrimination in allocation of primary goods. The reason for this neglect Rawls provides is that he argues for a robust and convincing theory of justice for ‘normal’ cases and then tries to extend it to ‘extreme cases’ (Rawls 1972). By ‘normal’ he means citizens as ‘free’ and’ equal persons’ and as ‘normal and fully cooperating members of society over a complete life’ (Rawls 1972). With reference to women, most women in the world lack basic support and resources to be capable of acting as ‘free’ and ‘equal’ persons, thus putting them outside the boundaries of his theory. Sen’s critique of the inflexibility of primary goods goes beyond the case of the disabled. As he argues, the problem does not end with the disability. He points out a more generic problem in Rawls idea of primary good that inadequately deals with pervasive inter-individual differences among people, saying, ‘the primary goods approach seems to take little note of the diversity of human beings in health, longevity, location and work conditions. So what is being involved is not merely ignoring a few hard cases, but overlooking very widespread and real differences’ (Sen 1980: 215–216). Primary goods are supposed to be means to pursue one’s life goals but the real opportunities or possibilities are not just determined by primary goods but also a range of factors that determine to what extent these primary goods can be converted to valuable states of being and doings. In the light of this debate, the questions that have emerge are that Rawls in his

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exposition of rights and setting the principles of rights ignores all ‘who are not free and equal persons’, and that includes women’s rights. This critique has been discussed by Martha Nussbaum (2000), among others. Martha Nussbaum is one of the contemporary liberal feminist thinkers who has contributed extensively to the debates in law, social justice, political philosophy and feminist politics. She has identified three main areas in Rawls theory of justice that suggest critical implications on the nature of rights. Nussbaum begins with an attack on the social contract tradition in Rawls’s theory by stating that he imagines society as a contract for mutual advantage, premised on an assumption that the contracting parties are roughly equals, without any relation of domination and asymmetry in power relations. This is drawn from the Kantian notion of contracting persons as ‘free, equal and rational’. The same perception is carried in Rawls’ theory as well where the citizens in well-ordered society are ‘full cooperative members of society over a complete life’ (Rawls 1972). This idea makes this contract exclusive, barring those who are unequal, underprivileged and do not enjoy equal status in society. Women in many parts of the world fall into this category. Thus, the principles of justice as given by Rawls exclude the groups who really need them. She makes a critical comment on Rawls’s formulation of the ‘Original Position’ that presumes that contracting parties are fully aware of their need for material goods; for they are imagined as competent contracting adults, roughly similar in needs and capable of a level of social cooperation that makes them able to enter a contract with others (Nussbaum 2000). According to Nussbaum, the ‘Original Position’ theory ignores the magnificence of human diversity and different access to the fulfilment of these ‘needs’. Men and women have distinctly different needs depending upon the socio-economic political and cultural contexts. Secondly, not all women are aware of their material needs due to what Nussbaum calls ‘adaptive preferences’ (Nussbaum 2000: 137) developed and inculcated through structured patriarchal gender relations in most communities. Women have long been denied minimum education and political freedom with their goals and aspirations being socially conditioned and appropriated making them internalize those internal preferences. Thus, Nussbaum questions this point and argues that any theory of justice and rights should include measures to resurrect these ‘adaptive preferences’ and ‘develop a sense of justice’ for oneself, by women and socially deprived groups.

Susan Moller Okin’s critique We have another significant critique from a feminist perspective of Rawls’s theory coming from Susan Moller Okin. Her merit lies in the evaluation

Beyond conclusions 387 of Rawlsian principles in the context of social institutions like ‘family’ to address the scope of gender in his theory. She begins with a minor observation of an often-repeated linguistic usage of male generic terms by Rawls as ‘men’, ‘mankind’ or ‘his’ for asexual references to ‘individuals’ or ‘moral persons’ (Okin 1989). She challenges the two assumptions of contracting individuals in ‘Original Position’ entering the contract under the veil of ignorance. First is the ignorance of their gender that would guide them to construct an impartial concept of justice. She objects to this assumption by arguing that it is important to acknowledge the different status and needs of both women and men in society in general and specifically in social, cultural and political institutions and structures. Further, Okin is also critical of the fact that Rawls is dismissive of the institution of ‘family’ since he regards it is a private institution based on mutual concern and affection. Family according to Okin is one of the key sites and sources of gender inequality and oppression; thus keeping it outside the purview of justice and rights would mean reinforcing the public–private divide. Secondly, individuals do not enter as ‘single individuals’ but as ‘head of families’ or ‘representative of families’. Considering that generally men are the head of households in most family structures, it automatically privileges the authority of men over women (Okin 1987). By this critique one comes to the conclusion that Rawls’s theory of Justice was designed for the dominant groups of various social and economic categories as they are ‘free and equal’, ‘capable of social cooperation’ and desire social cooperation for mutual advantage. Secondly, since he gives preference to the ‘liberty’ principle above equality and justice, it implies that the liberty of the free and equal would be prioritized as compared to ‘equality’ and ‘justice’ for the socially disadvantaged. Thus ‘rights’ as social primary goods become weapons in the hands of the powerful to justify their liberty over any constraint in the name of equality and justice. How would the liberty of ‘disadvantaged sections’ be safeguarded from the domination of the powerful, and what are the conditions to decide whose liberty to be prioritized against whom? Thirdly who defines what are the criteria to determine ‘who is the least advantaged: is it social, economic or political and what would be the maximum benefit’ just giving ‘rights’ or making them capable of exercising those rights? Thus what is needed are ‘rights’ on the basis of ‘equality’ and not just individual liberty. Last by excluding ‘family’ as a social category of analysis of justice he further limits the scope of his theory for oppressed women and complicates his theory as discussed extensively by feminists like Susan Okin (1987). Clearly while Sen and Nussbaum have used the exclusion of women in Rawls’s theory of Justice as a critique of the limitations of the theory, Okin

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has also brought this out as this central argument in her critique of Rawls. The significance of this intervention lies in the fact that they are striving to make a larger case for all individuals who do not fit into the category of ‘free and equals’ as presumed by Rawls, and that would certainly include marginalized groups like women, disabled, Dalits, the transgender community etc. So the feminist intervention does provide a wider lens to examine the various forms of discrimination in accessing rights.

Understanding rights in India: the liberal discourse The desire for civil rights in India has its roots deep in the nineteenth century, which got expressed in the formation of the Indian National Congress in 1885. Indians began to demand the same rights and privileges as the British. They wanted to end the discrimination inherent in the colonial regime and began to demand equal rights. Isaiah Berlin describes this language of rights or freedom of collective self-direction as ‘Positive’. ‘The positive sense of liberty comes to light’, wrote Berlin, ‘if we try to answer the question not’, ‘what am I free to do or be? by whom am I ruled?’ The demand for this particular aspect of positive liberty and the demand for negative freedom came to their logical fulfilment with attainment of independence with adult suffrage and fundamental rights (Austin 1966: 54). Inspired by the French Revolution and its slogan ‘Liberty, Equality and Fraternity’, the Indian leaders began their struggle for freedom as a nation. Gandhi with other leaders termed this a struggle for right to swaraj: an accumulated essence of social, political, economic and moral independence. This struggle culminated in various movements defending important economic, civil and political rights like the non-cooperation movement (1920), the civil-disobedience movement (1931) and the Quit India movement (1942) led by Gandhi during different phases of freedom movement. Gandhi was a mass leader and made every attempt, unlike earlier leaders to involve women in the struggle for rights to civil and political liberties against the British. His idea of ‘satyagraha’ further encapsulates the essence of moral force in individuals especially the oppressed to assert on their fundamental rights and liberties. What perhaps weakens his conception of rights is an overemphasis on ‘duties’ as prior to ‘rights’. Rather, he argued that rights flow from duties where fulfilment of one’s right depends upon the performance of duty. This perception has its limitations in a real world where individuals and communities under ages of oppression and injustices need some basic non-negotiable rights in the form of liberties and opportunities to uplift themselves. The history of human rights in India is incomplete without the contribution of Jawaharlal Nehru. Besides playing a crucial role in India’s freedom

Beyond conclusions 389 struggle, he laid emphasis on the vision of the formation of the ‘substructure’, i.e., foundations of human rights on which the political, social, cultural and economic ‘superstructure’ would be established in free India. The human rights agenda comprised four main components: (a) an entrenched bill of rights, (b) a limited but affirmative government, (c) state accountability and (d) independent judiciary for the enforcement of fundamental rights. These basic rights constituted the foundations of a free society. A free society, according to Nehru, is one that ensures political and economic freedom for all its individuals beyond caste, class or gender. This is prerequisite for the flourishing of individual capabilities and potentialities in a society. He not only advocated for basic rights for Indians but for individuals suffering across the world under various imperialist regimes during the eighteenth and nineteenth centuries (Kashyap 1982). He was also a great exponent of women’s rights and believed in eliminating different forms of injustices perpetrated through age-old customs and traditions in Indian society. However, this struggle against the British had different implications for women in India. Though India’s independence in 1947 brought a formal recognition of equal political and civil rights for women, limitations of the post-colonial state’s approach to women’s rights became obvious. This became evident with the declining status of women in post-Independence India such as increasing violence against them, the feminine face of poverty, alienation from the development process, and lack of multiple capabilities to lead a life of free choice etc. It was B. R. Ambedkar whose writings provide a deeper and a more critical understanding of rights. Ambedkar made a persuasive case for equality and inclusion. According to him, the freedom in the market must be linked to the realities of specific time and place and should be about real choices. His main criticism was against the Indian caste system. According to him, the caste system had brought powers, privileges, benefits and burdens which rendered any form of collective social action for equality unrealistic (Ambedkar 2014). In his ‘Annihilation of Caste’, Ambedkar reimagined liberal rights to include state guarantees for reservation as well as a social movement for conversion from Hinduism to Buddhism. Affirmative action, for Ambedkar as for Dworkin, was associated with right to self-respect and dignity. However Ambedkar’s strength lies in the fact that his theory was intended to be a pragmatic tool for the social emancipation of the marginalized groups in India. Since he was the chairperson of the drafting committee of the constituent assembly and known as the principal drafter of our constitution, rights to substantive equality became the formal guiding principle of the constitution of India. Any discourse on rights in India needs to be informed by this

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principle in order to be recognized as a legitimate claim for rights. Political ideologies which remain informed by Ambedkar’s ideas eventually unsettle the idea of India. Ambedkar along with other social reformers like Pandita Ramabai and E. V. Periyar had made significant contribution to the idea of women’s rights. The drafting of a new law that would allow Hindu women to choose their partners and to divorce them if necessary was initiated by Ambedkar. Ambedkar’s quest for democratic socialism was linked to notions of equality, fraternity, questioning of the caste system, equal rights for men and women and faith in constitutional means of social transformation. Pandita Ramabai Saraswati gained some recognition as a solitary woman leader of the movements of women’s emancipation in nineteenth-century Maharashtra. Ramabai’s writings were broad theoretical questions about the causal connection between the conditions of women, state of the nation and caste system. She made a case of women’s education in India as well as bringing out the oppressive elements that existed in the Hindu Caste system which led to the subordination of women. She critiques Brahmanical texts that emphasized the supremacy of men and the procreation of male descendants as the most important goal in their lives. Struck by the common degradation of women and low castes, about which the shastras were unanimous, Ramabai’s early Brahmanical socialization was deeply shaken (Chakravarti 2014: 8). In her own words, I had a vague idea of these doctrines of the Hindu religion in my childhood, but while studying the Dharamshastras, they presented themselves before my eyes with great force. My eyes were gradually opened; I was awakened up to my own helpless condition as a woman and it was becoming clearer and clearer to me that I had no place anywhere as far as religious consolation was concerned. (in Chakravarti 2014) While Ramabai converted to Christianity and her conversion became a ground to reject her ideas, she was the first public figure to solicit funds for setting up social institutions in the nation. She also critiques the conditions of the American Indian and the disadvantages experienced by women in the South of America compared to in the North.1 Ramabai in that sense was a writer, public person, an activist and an institution builder. She was able to point out the interlocking nature of patriarchies in caste, nation and colonial rule. She had a complex interaction with her times and has been compared with Ambedkar in terms of her life journey and a stormy relationship with her society.

Beyond conclusions 391 Ramabai exists in the fringes of our social reform movements and has been reclaimed only to speak about her contribution to women’s rights. However, it is important to claim her as an individual who had an emancipatory engagement with society at large and who worked towards the transformation of society to bring about greater social inclusion and egalitarian practices. Another important contributor who was able to interlink caste inequalities, patriarchy was E. V. Ramasamy, also known as Periyar. Periyar’s attention to caste and religion led to the promotion of what he called the self-respect movement. He took radical stands against religion for women’s rights and against Brahmanical supremacy.2 He was an atheist, and his writings concentrated on critically denouncing religion for its oppressive nature. He was an early and consistent advocate of widow remarriage, and he also supported contraception as a means for rights and freedom for women. He made a critical contribution by speaking about the burdens that are placed by marriage on women. In his own words, Generally speaking, not merely in our country, but in almost all countries of the world, as far as marriage is concerned women are subjected to unnaturally harsh treatments. This will be accepted as true by all impartial people. But, in this, our country is far worse than other countries. (in Veeramani 1996) He also argues, ‘Telling themselves that simply because they are married they must patently put up with everything, I would say that they betray absence of the essential human qualities and also want of self-respect’ (in Veeramani 1996). Periyar was known as an anti-caste radical, and he provided a nuanced critique of gender and his followers advocated reforms in marriage laws and supported women’s rights to education and employment. In that sense Periyar was no different from feminists of later times because he made important connections between relations of production and reproduction. His critiques of the caste system as well as religion also were intermeshed with his ideas around women’s rights. These thinkers have written and actively participated in shaping and reshaping the Indian society and promoting the principles of pluralism, equality and freedom. The argument we are making here is that they could very well be regarded as feminists who have made significant contribution to the idea of intersectionality and marginalization. The privileging of the feminist discourse over other discourses to understand rights that we have

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undertaken is provided more support and credence by engaging with these thinkers in the Indian context. These ideas of intersectionality, marginalization and differentiated conception of rights have been a central piece of the Western discourse of liberal rights also. While in the Indian context, these thinkers have not been claimed within this fold, the core elements in their thought make us realize their significance.

Intersectionality, diversity and autonomy The rights discourse whether in the Indian or Western discourse is enriched by an understanding of intersectionality, diversity and autonomy. Iris Marion Young emphasized diversity. According to her instead of a universal set of citizenship rights, we need a group-differentiated one and a heterogeneous public. In a heterogeneous public, differences are publicly recognized and acknowledged as irreducible. By that she meant that persons from one perspective or history can never completely understand the point of view of those with other group-based perspectives and histories. Yet the commitment to the need and desire to decide together the society’s policies foster communications across differences. She argues that the concreteness of individual lives and their needs and interests and their perceptions of the needs and interests of others are structured partly through group-based experiences and identities. According to her, it is required thus that groups are not silenced or marginalized and that they have a specific voice in deliberations and decision making (Okin 1987). The implicit understanding that has emerged from the strands of Indian and Western thinking on rights is that while acknowledging the importance of individual rights, it is also necessary not to ignore group rights. Intersectionality brings in another dimension because it explores the various ways in which multiple dimensions interact with each other and intersect in shaping structural, material and cultural aspects of inequalities and discrimination. As an idea it was Kimberly Crenshaw who elucidated this when she spoke of race and gender. According to her, her focus on the intersections of race and gender only highlight the need to account for multiple grounds of identity when considering how the social world is constructed. She divided the intersectionality into three kinds: structural intersectionality, political intersectionality and representational intersectionality. Speaking in the context of women of colour in the US, she illustrates how intersectionality might be broadly useful as a way of mediating the tension between assertions of multiple identity and the ongoing necessity of group politics. It is important to recognize that categories like class, caste, gender, region and religion may intersect and that an awareness of intersectionality

Beyond conclusions 393 is important. According to Crenshaw, it brings about acknowledgement and grounding of differences and provides ways of negotiating the means by which these differences find expressions in constructing group politics (Crenshaw 1991). Nancy Fraser’s intervention is one of the most sophisticated where she provides an integrative approach to discuss ideas about rights and social justice. Her approach engages with gender but is created with the purpose of being universally applicable. She makes an argument for ‘perspectival dualism’ wherein she tries to encompass redistribution and recognition in a single framework. According to her, the discourse of social justice is divided between claims for redistribution and claims for recognition of the other. These two claims for rights are disassociated from each other. In her own words, ‘Within social movements, activist tendencies look to redistribution as the remedy for male domination are increasingly disassociated from tendencies that look instead to the recognition of gender difference’ (Fraser 2008: 3). According to her, the feminist case is an example of more general tendency to decouple the cultural rights discourse from the political and economic rights. Fraser considers this as false antithesis and provides the idea of perspectival dualism where she says that one needs to probe beneath appearances to reveal the hidden connections between redistributive rights and rights to bring about recognition. It must make visible and criticisable both the cultural subtexts of apparently economic processes and the economic subtexts of apparently cultural practices. Treating every practice as simultaneously economic and cultural, it must assess all of them from the two different perspectives of distribution and recognition without reducing either one of its perspective of the other. It can be deployed critically moreover against the ideological grain. She gives the example of how while focusing on welfare programmes, one can assess the effects of institutionalized maldistribution on the identities and social status of single mothers. Fraser’s ideas can be recapitulated, and her argument for a comprehensive framework to encompass seemingly antithetical ideas can be made. It is only by looking at an integrative approach of uniting idea of rights, capabilities and cultural recognition can we meet the diverse demands and needs of the larger society. Nancy Fraser’s integrative approach where she makes a persuasive argument for bringing together both the ideas of redistribution and recognition is an important one in today’s time. According to her, redistribution and recognition do not necessarily conflict, and they can both be provided without reducing one of them for the other. Her idea which is known as ‘perspectival dualism’3 assesses need for an indispensable conceptual tool for interrogating, working through and eventually overcoming the disassociations. It believes that not all injustices of recognition can be remedied

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through redistribution. It is thus important that enough attention is paid to both economy and culture. In short there should be no redistribution without recognition. However, any proposal for recognition should be assessed from the standpoint of redistribution. She suggests that there is a need to think integratively by working out transformative approaches to redistribution and deconstructive approaches to recognition. While the integrative approach is a pertinent tool that reconciles recognition and redistribution and therefore makes a viable attempt to balance individual and group rights, it is important to reclaim individual autonomy as a centrepiece of rights.

The idea of autonomy: critiques and contestations The concept of individual autonomy has come to occupy a central, if contested, place in moral and political philosophy. For example, questions concerning the nature and value of individual autonomy and its compatibility with a recognition of the social embedding of persons are central to current debates in political philosophy among liberals, communitarians and feminists.4 However, despite the importance of the notion of individual autonomy within contemporary moral and political theory, there is no consensus about what the concept means or when it can be legitimately employed. In bioethics, autonomy is often equated with informed consent. In rational choice theory, autonomy is equated with voluntary, rational choice. In other contexts, for example, within liberal political theory, autonomy is considered to be about individual right. For liberals of a libertarian persuasion, the right to autonomy is construed as negative liberty, a right of the individual to freedom from undue interference in the exercise of choice (moral, political, personal and religious) and in the satisfaction of individual preferences. For Rawlsian liberals, autonomy is understood in Kantian terms as the capacity for rational self-legislation and is considered to be the defining feature of persons.5 The conceptual thread that links these different uses of the notion of autonomy is the idea of self-determination or self-government, which is taken to be the defining characteristic of free moral agents. Notions of autonomy as individual choice or as a political right flow from and are derivative of this defining characteristic. Because of the core role of the idea of autonomy as self-determination, it invokes critical questions when we begin to unfold the debates around rights. Despite the differences that we have identified among uses of the concept of individual autonomy, there are nevertheless important overlaps between the different senses of autonomy and between the different domains in

Beyond conclusions 395 which the concept is employed. There are clear historical and conceptual links among conceptions of choice, conceptions of rights and conceptions of individuality, autonomy and self-ownership. These links explain why the concept of autonomy is so contested among liberals, communitarians and feminists. And they also explain why debates about autonomy are often fraught with confusion – because the concept of autonomy is sometimes conflated with one particular conception of autonomy and its attendant conceptions of choice and rights. The most obvious example is the caricature of individual autonomy as exemplified by the self-sufficient, rugged male individualist, rational maximizing chooser of libertarian theory. It is this caricature that is often the target of feminist critiques of autonomy.6 Given the widespread cultural association of individual autonomy with this caricature, it has been and continues to be important for feminists to contest this particular conception of autonomy. However, it is also imperative for feminists to reclaim and re-conceptualize the concept of individual autonomy and to articulate conceptions of choice and of political rights that are more substantive from a feminist perspective. To do so, feminist theorists must draw on both mainstream philosophical theories of autonomy and on feminist critiques of culturally dominant conceptions of individuality, selfhood and moral and political agency. Apart from various feminist critiques of the idea of autonomy, what is of contemporary relevance in today’s context are the diversity critiques. The parallel post-modernist critiques in challenging the assumption that agents are cohesive and unified. Such critiques claim that each individual has a ‘multiple identity’ which reflects the multiple groups to which the individual belongs.7 Thus, the identities of individual women are ‘intersectional’ in that they combine the group affiliations unique to them. The idea of intersectionality may seem incompatible with the presuppositions of theories of autonomy. It implies that because different and sometimes conflicting group identities intersect in the formation of individual identity, many individuals do not have a unified or integrated sense of self. As with the post-modernist arguments, if theories of autonomy are thought to presuppose a transcendental self, the conception of the self offered by diversity theorists is incompatible with that offered by theories of autonomy. Even if theories of autonomy do not presuppose a transcendental self, notions of integration are central to many accounts of autonomy. Hence intersectionality does seem potentially to undermine conceptions of autonomy that require integration. Crenshaw claims that ‘in the area of rape, intersectionality provides a way of explaining why women of colour must abandon the general argument that the interests of the community require the suppression of any confrontation around interracial rape’ (Crenshaw et al. 1995). The resistance to seeing

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individuals as replicating the interests and identities of the groups to which they belong is congenial to an emphasis on individual autonomy. Thus, despite the problems posed for certain theories of autonomy by the notion of intersectionality, we argue that the insights of diversity critiques, especially that agents also have particular identities and not just group identities shared with other members of the group, enhance rather than reduce the need for feminist re-characterization of individual autonomy.

The concept of reflective autonomy In the present world there has been a backlash to group rights and to the ever-growing demand for the recognition of groups. It is important to understand that group rights as the earlier discussion demonstrates is inextricably linked to individual rights. The emphasis in the present-day world is moving towards an identity politics based on autonomy. The exclusion of certain groups especially on the basis of cultural grounds has become questionable. It is important therefore to make an attempt, in our limited opinion, to get both group rights and individual rights recognized within an understanding of reflective autonomy. The idea of reflective autonomy is drawn from psychoanalytical studies. A distinction is made between reactive autonomy and reflective autonomy. Reactive autonomy is an orientation which is focussed upon the need to have complete freedom and to exercise choice by differentiating oneself from the other (Slote 2007). Autonomy today has been continuously legalized through its focus on its individuals and articulated as rights for individuals. It has engaged with normative understandings around the state delivering rights to individuals. The questioning of autonomous rights emerges from the nuanced understanding of group inequalities and demand therefore of group rights. Individual autonomy cannot be secured unless certain forms of inequalities that groups face are addressed. The engagement with group rights provides deepening of the rights discourse. However, the continuous demand for group rights and recognition and accommodation of all groups has led to a sense of reverse discrimination by the majority. This has witnessed the re-emergence of individual autonomy argument as the basic starting point of rights. Our understanding developed by engaging with ideas of Nehru, Gandhi, Ramabai, Periyar, Crenshaw, Fraser and Young is that any form of individual autonomy will be severely affected if the idea of diversity and intersectionality are not part of the discourse. Reflective autonomy becomes a far more useful position to resolve some of the dilemmas. Reflective autonomy examines how an individual having an awareness of her goals is able to

Beyond conclusions 397 reconcile external influence with personal intentions. Though these ideas have been discussed by personality theorists like H. Murray, E. L. Decy and R. Ryan,8 the concept has been used here to as a possible approach to the debates and dilemmas of the rights discourse. This reflective autonomy is influenced by the ideas of Fraser’s perspectival dualism that we have mentioned earlier. The range of thinking with the engagement of feminist thinkers like Okin, Periyar, Ambedkar and Crenshaw on various facets of interstices makes them relevant for an integrative approach to rights. The chapter so far has analysed the various theoretical positions on rights. It makes an argument that the integrative approach which has been provided by the various feminist thinkers mentioned is a far more relevant tool to deal with the debates and dilemmas regarding rights. It also makes a case for reflective autonomy which is premised on the following values.

Engagement Any idea of rights needs to be deepened in order to understand the roots of discrimination and the criticality of achieving equality. Engagement here thus would mean delving into the history of the emergence of that set of rights and how these rights were constructed in the context of that time. At the next level, it requires engaging with the various movements which have shaped the discourse on those rights, the forces that have supported it and the range of stakeholders who have been affected by it. Rights cannot be demanded for in abstraction. They have to be connected with the larger values of democracy and freedom. Engagement in this way becomes integral to larger democratic processes. The idea of engagement has also found its place within Hannah Arendt’s and Habermas’s works. However, here the emphasis on engagement is to be able to reflect on both autonomy and the complex relationship between citizen and state. For Arendt the reactivation of citizenship in the modern world depends upon both the recovery of a common, shared world and the creation of numerous spaces of appearance in which individuals can disclose their identities and establish relations of reciprocity and solidarity. Rather, engagement is an attribute of citizenship which individuals acquire upon entering the public realm and which can be secured only by democratic political institutions. To be engaged in politics means actively participating in the various public forums where the decisions affecting one’s community are taken. Arendt’s insistence on the importance of direct participation in politics is thus based on the idea that, since politics is something that needs a worldly location and can only happen in a public space, then if one is not present in such a space one is simply not engaged in politics (McCarthy 2012: 274).

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Habermas’s idea of ‘engagement’ is derived from the idea of public autonomy which means that the legitimacy of ordinary legislation must ultimately be traceable to robust processes of public discourse that influence formal decision making in legislative bodies. Habermas summarizes this requirement in his democratic principle of legitimacy: ‘only those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted’ (in Hahn 2000: 369). As he goes on to explain, this principle articulates the core requirement for ‘externally’ institutionalizing the different types of practical discourse that are relevant for the justification of particular laws.

Empathy Empathy, which has found a place in writings of political thinkers like Martha Nussbaum, John Rawls, Michael Slote and others, is a natural tool human beings possess for making ethical decisions. It is again a synthesized idea which has derived insights from philosophy, psychology, history etc. It remains key to overcome polarization, and instead of alienating the other side, it engages with understanding persuasion and framing messages that pay attention to differences. Cultivation of empathy and increasing social consciousness to create an empathetic world is crucial to the process of resolving the debates and dilemmas of the rights discourse. Empathy needs to be distinguished from sympathy. It means feeling someone else’s feeling or suffering, while sympathy means feeling for someone else’s suffering. Slote defines empathy as involving, seeing or feeling things from the standpoint of others. It however does not involve losing a sense of one’s own identity or merging one’s identity with that of another person (Slote 2007). Martha Nussbaum argues for enhancing the ability of persons in general and legal decision makers in particular and to engage in metaphorical thinking by being guided through empathy, in their public roles. ‘[T]his imagination-including its playfulness, is the necessary basis for good government of a country of equal and free citizens. With it, reason is beneficent, steered by a generous view of its objects; without its charity, reason is cold and cruel’ (Nussbaum 1995: 43).

Emancipation Emancipation is an effort to procure, in order to set the marginalized groups free from their disenfranchised position. Karl Marx spoke about political emancipation on the Jewish question as well as human emancipation. Emancipation is also used in the context of women accessing rights

Beyond conclusions 399 in order to achieve equality. Emancipation in the context of reflective autonomy refers to the significance of rights for promoting equality and transforming the very nature of power and politics. We are not suggesting here that emancipation needs to transform the very nature of politics and power. However, it should have the potential of interrogating the rhetoric of formal equality and rights and critically examining the achievements of substantive rights. Using the example of affirmative action for women in politics, i.e., reservation of women in legislative bodies, there are certain assumptions that can be based on the three Es of reflective autonomy. 1

2

3

Engagement: By engaging with the idea of women’s political participation in terms of its history, the women’s movements and the various stakeholders, we would be able to understand both the practical and strategic needs that can be achieved and sustained in macro terms through political representation. Empathy: While women constitute 50 percent of the population demographically, their representation in parliament is only 10 percent. Expanding and deepening the understanding the roots of gender discrimination, it can be said that women’s access to power and decision making in the parliament is critical to achieving gender equality –not just feeling for them as subjects of development but to empathize in terms of seeing them as agents of change. Emancipation: A critical mass of women in the Parliament may not only promote the agency of women parliamentarians but would also lead to creating substantive equality for women by challenging and reframing their roles in the public domain.

The three Es, especially the idea of engagement, are also to dispel the myth that women’s access to political power will alter the nature of political power in the sense women would play politics differently and would exercise power accountably. The complex picture of the 73rd and 74th amendments of the constitution of India has revealed that some elected women have been placed under male control of their relatives, while others have triumphed amazingly and have delivered to their constituencies. Many have also fallen victim to inexperience and corruption, so therefore it is important that all dilemmas and debates around women’s rights to political participation in Parliament should be done through engagement with the three Es of reflective autonomy. When it comes to religious tolerance for example, empathy, engagement and emancipation become relevant since they enhance the human quality

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of life and do not create rigid confrontations and exclusions. An empathetic understanding of another community, engagement with their history of exclusion and inclusion and with a goal for emancipation, the autonomous individual may be able to develop a sense of equanimity in terms of religious distinctions. So while one may not be convinced about certain rigid norms and practices of certain communities, it is important to have a sense about rights by using the approach of reflective autonomy that is both attractive and plausible. So while one can stress autonomy, we need to understand that autonomy is not innately possessed. Rigid practices in communities do lead to stereotypes that clearly deprive individuals in those communities of making choices of their own. However, if there is an reflective autonomy approach used within community and outside it, then it will help to nurture individual autonomy along with a respect for group rights. Therefore, a suitable expanded form of reflective autonomy will enhance both individual and group rights. Reflective Autonomy can be understood in terms of incorporating the elements of the three Es. However, in order to make it plausible, we have to see why this is important. According to Slote, while feminists like C. Gilligan, N. Noddings and other ethicists of caring drew a contrast between supposedly masculine and feminine moral thinking, they put such things as justice, autonomy and rights under the first rubric and such things as caring, responsibility for others and connections together under the second rubric (Slote 2007). He makes a claim that it is important to combine the two especially by bringing the idea of empathy into the virtue of caring. He points to the limitations of the caring approach by saying that instead of claiming whether certain actions are right or wrong based on intuitions one can say that actions are right or wrong to the extent to which they exhibit or reflect normally or fully empathetic caring motivations. For example, other things being equal, it would be morally worse to prefer a foetus or embryo to a born human being because such a preference runs contrary to the flow of fully developed human empathy or to caring motivations that are shaped by such empathy (Slote 2007). The idea of reflective autonomy that we are proposing emphasizes and justifies the need for going beyond moral sentiments to individual concern for others based on a realistic, thoroughgoing and sensitive basis for expansion of rights. Some rights can be questioned or denied motivated by the three Es. Thus we would like to conclude that the expansion or curtailment of any set of rights should undergo the litmus test of the three Es we propose. First, ‘What is the engagement with the history of the issue concerned?’, ‘Has it come through important stakeholders and the vulnerable?’, ‘Is it inclusive or exclusive?’, ‘What is the point of empathy

Beyond conclusions 401 with other communities?’, and finally, ‘Whether it eventually would have emancipatory potential’. These are not final conclusions, but we propose that reflective autonomy may be considered a useful approach for analysing the rights discourse in India. Reflective autonomy may provide some answers to the debates and dilemmas which manifest themselves periodically around specific issues of rights.

Notes 1 Pandita Ramabai’s best-known work ‘The High Caste Hindu Woman’ was widely sold, and later her book on her US travels was a critical piece that engaged with the benefits of a liberal democratic country and its progressive ideas. 2 Periyar E. V. Ramasamy was the founder of a Dravidian Movement in Tamil Nadu called ‘Dravida Kazhagam’ (DK) in 1944. He is dearly called Periyar. He advocated social reforms prior to political. 3 For a detailed critique of her theory see Majid Yar. 2010. Beyond Perspectival Dualism, www.tandfonline.com/doi/abs/10.1080/03085140120071206 (accessed on 10 July 2017). 4 For example, Seyla Benhabib.1992. Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics. New York: Routledge; Michael Sandel. 1982. Liberalism and the Limits of Justice. Cambridge: Cambridge University Press; Will Kymlicka. 1990. Contemporary Political Philosophy. Oxford, UK: Oxford University Press. 5 For an elaborate discussion of Rawlsian liberalism and Autonomy refer to John Rawls. 2005. Political Liberalism. US: Columbia University Press. 6 See Marilyn Friedman. 1997. ‘Beyond Caring: The De-Moralization of Gender’, in D. T. Meyers (ed.), Feminist Social Thought: A Reader. New York and London: Routledge. 7 For example, Kimberley Crenshaw argues that ‘the experiences of women of colour are frequently the product of racism and sexism, and these experiences tend not to be represented within the discourses of either feminism or of antiracism’. For details see Kimberly Crenshaw et al. (eds.). 1995. Critical Race Theory: Key Writings That Formed the Movement. New York: New Press. 8 Detailed insights on these perspectives can be found in the writings of H. A. Murray. 1938. Exploration in Personality. New York: Oxford University Press and Richard Ryan and Edward Deci. 2000. ‘Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development and Well-Being’, American Psychologist, 55.

Bibliography Ambedkar, Bhim Rao. 2014. Annihilation of Caste: Annotated Critical Edition. New Delhi: Navayana. Austin, Granville. 1966. Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press. Chakravarti, Uma. 2014. Rewriting History: The Life and Times of Pandita Ramabai. New Delhi: Zubaan.

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Crenshaw, Kimberley. 1991. ‘Mapping the Margins: Intersectionality, Identity Politics and Violence against Women of Color’, Stanford Law Review, 43: 124–123. Crenshaw, Kimberley et al. (eds.). 1995. Critical Race Theory: Key Writings That Formed the Movement. New York: New Press. Fraser, Nancy. 2008. Social Justice in the Age of Identity Politics. New Delhi: Critical Quest. Hahn, Luis Edwin. 2000. Perspectives on Habermas. Chicago and La Salle: Open Court Publishing. Kashyap, Subhash. 1982. Jawaharlal Nehru and the Indian Constitution. MI: Metropolitan. McCarthy, Michael. 2012. Political Humanism of Hannah Arendt. New York: Rowman and Littlefield. Nussbaum, Martha.1995. Poetic Justice: The Literary imagination and Public Life. Boston::Beacon Press. Nussbaum, Martha. 2000. Women and Human Development: The Capabilities Approach. Cambridge: Cambridge University Press. Okin, Susan. 1987. ‘Justice and Gender’, Philosophy and Public Affairs, 16(1): 42–72. Okin, Susan. 1989. Justice, Gender and the Family. New York, USA: Basic Books. Rawls, John. 1972. A Theory of Justice. Cambridge, MA: Harvard University Press. Sen, Amartya. 1980. ‘Equality of What?’, in S. McMurrin (ed.), The Tanner Lectures on Human Values. Salt Lake City: University of Utah Press, Vol. 1. Slote, Micheal. 2007. Ethics of Care and Sympathy. New York: Routledge. Veeramani, Krishnasami. 1996. Periyar on Women’s Rights. Madras: Emerald Publishers. Young, Iris. 1998. ‘The Politics of Difference’, in Gurpreet Mahajan (ed.), Democracy, Difference and Social Justice. New Delhi: Oxford University Press.

Index

Aadhaar 2 Aam Admi Party (AAP) 152 Aayog, Niti 324 Abdullah, Sheikh 370, 371 abolition of untouchability, Article 17 51 abortion 102; trivialization of 102; see also sex-selective abortion Abortion Act, 1967 192 Adityanath, Yogi 276 Advisory Committee 69, 70 ageing 204 agency 217, 239, 240 Ahmad, Leila 94 Ahmed, Naziruddin 75 Ahmedabad St. Xavier’s College Society v. State of Gujarat, The 79 Aiyar, Mani Shankar 285 Akal Takht 199 Alexander, Jacqui 95 Ali, Ameer 287 All India Muslim Personal Law Board (AIMPLB) 275, 292 All Indian Democratic Women’s Association (AIDWA) 205 All India Women’s Conference (AIWC) 248, 249, 251, 253, 254, 257 Ambedkar, B. R. 48, 61, 62, 64, 69, 75, 76, 256–258, 270, 334, 389 Ambedkarite principles 10 Amitabh Kundu Expert Group Report 13 Anglo-Indians 62, 253 anti-caste movements 54

anti-corruption reform 151, 155–158; ethics of 161–170; human rights and 161–170 anti-discrimination 131 anti-Mandal agitations 263 anti-Muslim agenda 285 Aparajita, Goyal 207 Apoorvanand 280 Appadurai, Arjun 165 aravanis 349 Arendt, Hannah 344 ‘Are There Any Natural Rights?’ 113 Armed Forces (Special Powers) Act (AFSPA) 3 Article 21, fundamental right 2 arts 339–341 Aruna Parmod Shah v Union of India 118 assets 204 atishudras 38 Austin, Granville 71, 78 autonomy 392–394; critiques and contestations 394–396; women 204 Ayyar, Alladi Krishnaswami 75, 76 Babbar, Geetanjali 230 Babri Mosque 33 backward cultures 90 Bahadur, B. Pocker Sahib 74, 75 Bahadur, Mahboob Ali Baig Sahib 74 Bahujan Samaj Party 52 balkanization 65 Banerjee, Nirmala 55 Bardhan, Pranab 45, 324 Bartky, Sandra Lee 216

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Basu, Amrita 99 Batabyal, Sourav 153 Below Poverty Line (BPL) 153 Bentham 7 Beti Bachao Beti Padhao (BBBP) campaign 186, 187 Bharatiya Janata Party (BJP) 152 Bharatiya Kisan Union 45 Bharatiya Muslim Mahila Andholan (BMMA) 275, 286, 290, 292 Bhowmik, Sharit 47 black money 159 bodily rights 215–245; rights discourse 216–218 body–gender politics 21 Bordo, Susan 223 Brahman 38, 48 Brashtachar Virdoshi Jan Aandolan (BVJA) 170 British ‘Communal Award’ of 1932 253 Brown, Louise 234 Brownmiller, Susan 122 Butler, Judith 89 Cabinet Mission Plan 58, 63, 64, 66 ‘Can the Subaltern Speak? 90 capitalism 39, 41–43 capitalist globalization 44 capitalist liberalization 40 carceral feminism 105 Card, Claudia 243 Carey, John 340 Carty, Linda E. 100 caste 20–23, 33; interface of 37–41; politics and 48–53; social inequalities of 136; in south India 338–345 caste-based inequality 338 caste–gender linkage 34 caste order 38, 39 catastrophic climate change 142, 146 Central Bureau of Investigation (CBI) 156 Central Vigilance Commission (CVC) 156 Centre for Advocacy and Research (CFAR) 205 Centre for Monitoring Indian Economy (CMIE) 163 Centre for Research and Debates in Development Policy (CRDDP) 275

Centre for Women’s Development Studies (CWDS) 183 Chakravarti, Anand 46 Chandhoke, Neera 157, 165 Chatterjee, Partha 248, 259 Chaudhury, Nazrul 153 child labour law 3 child marriage 14 children 24, 25; sex workers 321 child sex ratio (CSR) 182, 188 Chomsky, Noam 326, 328 Chowdhury, Abdur 153 Christians 253 Chukri system 234 citizen report cards 166 citizenship 73, 77, 144; trajectories of 346–355 civil-disobedience movement 388 Clark, Helen 126 class 33; interface of 37–41 classical music, in south India 338–345 class structure, changing 41–47 climate change 18, 135–149; anticipated effects 137–138; impacts of 136–147; social, economic and political factors 139–142 climate justice 135–149; accountability and leadership for 147–149 Clinton, Hilary 181 common citizenship model 81 common-law marriage 119 Communal Award 61, 62 communalism 254–258 compassionate citizenship 197 ‘Compulsory Heterosexuality and Lesbian Existence’ (1984) 222 Comte, Auguste 7 Conditional Cash Transfer (CCT) strategy 185 conditional nikahnama 287 conflicting rights, myth of 23–27 consciousness of patriarchy 12 Constitutional Amendment Act, 1974 72 constitutional deliberations 73 constitutionalizing rights 57–86; diversity, deliberating 64–78; Indian Constitution, identity and rights in 78–80; multicultural

Index constitutionalism 80–83; ordering difference 58–64 constitutional resolution 258–260 Constitution Amendment Bill 51 Convention on the Elimination of All forms of Discrimination Against Women (1979) 180 Convention on the Rights of the Child (CRC) 13 cooking staff 323 corruption: human rights and 151–170; and poor 152–153 cow vigilantism 279 creative society 55 criminal immunity 123 Criminal Law (Sexual Offences and Related Matters) Amendment Act 126 cross-cultural scholarship 90 cultural disempowerment 340 cultural liberty 24 cultural nationalism 249 cultural non-recognition 127 cultural rights 71–78, 339–341 culture 92–94 curb-cut feminism 206 currency-swap policy 158 Cutchi Memons 75 Dalit–Bahujan discourse 49 Dalit movement 49, 50 Dalits 13, 25, 36, 37, 40, 49, 50, 52, 265, 267 Daly, Mary 301 daughter aversion 204 Dave, Anil 274 D’Cunha, Jean 228 debt bondage 234 decluster disadvantage 197 Dehejia, Vivek 160 democracy 338–339, 344 democratic traditions 11 demonetization 151; costs of ‘purifying’ India 158–161; merits of 158 depressed classes 62, 256–258 deprived caste groups 50 Desai, Manisha 97 designer baby 191 Deve Gowda, H. D. 44 developmentalism 97

405

‘Development Challenges in Extremist Affected Areas’ (2008) 365 Dhume, Sadanand 324 dialectal materialism 42 Directive Principles of State Policy 76; Article 44 in 80 discrimination 13, 24, 25, 117–122 disempowered agency 240 dissonant notes 344 diversity 392–394 diversity, deliberating 64–78; constituent assembly, minority protections 64–71; cultural rights 71–78 diwani adalats 74 Dixit, Rekha 280 domestic violence 12, 117–122, 131; criminalization of 117 Donnelly, Jack 162 dowry 116 Dowry Prohibition Act 117 Draconian law enforcement 164 Dreze, Jean 156, 207, 325 drought 139 Durbar Mahila Samanvaya Samiti Committee (DMSC) 227, 228 D. Velusamy v D. Patchaiammal 119 Dworkin, Andrea 180 Dworkin, Ronald 6, 8, 200, 216, 217, 241, 242 economic growth 165 economic policy reform 154 economic reforms 33, 34, 46, 331 education 39 education policy 319–336 egalitarian educational system 326 egalitarianism 217 egalitarians 201 Eisentein, Zillah 179 electoral democracy 42 electoral politics 39, 40 empathy, failures 319–336 employment opportunities 95 Engels, Frederick 179 English-speaking population 46 enunch 349 equality 42; paradox of 122–131 ethical-cum-socialist communitarianism 78 ethical principles 243

406

Index

ethnic identity 33 European Commission of Human Rights 125 Everett, Jana 251 extrajudicial executions 2 Factories Act 1948 331 Faiz, Farah 284 false consciousness 221, 231 family 20–23 Fandry 322 female infanticide 102 female oppression 94 feminist critiques, globalization 94–97 feminist interventions 105, 384–385 feminist political leadership 94 feminist re-articulation of norms 96 feudalism 39, 43 finance industrialization 38 Fineman, Martha 116 Firestone, Shulamith 180 Firozuddin, K. B. 253 Folbre, Nancy 299 Forest Right Act 2006 364 Forum Against Sex Determination and Sex Pre-Selection (FASDSP) 183 Foucault, Michel 9, 204, 223 foundations of rights 6–9 Fraser, Nancy 203, 314, 393 Freedom of Information Act (FIA) 167 Frontiers of Justice 196–197 Fundamental Rights sub-committee 72 Fundamental Right to Education (Art 21A) 13–14 Gandhi, Indira 262 Gandhi, Mahatma 61, 62, 70, 143, 256, 260, 289 Gandhi, Nandita 263, 266 Gandhi, Rajiv 155 Gandhian principles 10 Ganguly, Sumit 156 gender 20–23, 33, 54; concerns 273–293; discrimination 179, 208, 209; interface of 37–41; social inequalities of 136 Gender Development Index (GDI) 12, 189 gender-discriminatory practice 3 gendered stereotyping 120

gender empowerment measure (GEM) 12, 189 gender equality 89–91, 278 gender inequality 179 gender justice 53 gender neutrality 195 gender-neutral legal systems 115 gender oppression 97 gender responsiveness 131 genetic engineering 191 Gentoos 74 Ghai, Anita 309 Ghai, Yash 82 Ghosh, Suniti Kumar 45 Ghurye, G. S. 48 Gilligan, Carole 197 Girl-Child Protection Scheme 186 Glaeser, Edward 153 global anti-corruption agenda, ideological underpinnings 154–155 global capitalism 96 global feminism 92–94, 100 globalization 141; of capital 45; feminist critiques 94–97 global sisterhood 92, 100 Global South–North relationships 95 Goel, Arun Kumar 274 good governance 154 Gordon, Linda 314 governance feminism 104–106 Government of India Act of 1935 62, 257 Graham, Hilary 299 gram sabha 360 gratuity benefits 351 Gray, John 6 ‘Great Indian Middle Class’ 46 Green Revolution 38, 44, 48, 49 Grewal, Inderpal 99 ‘group’ rights 20 Gujral, I. K. 44 Guru, Afzal 367 Guru, Gopal 49 Gurupadaswamy Committee Report 329 Guy, Donna 224 Hale, Mathew 123 Halley, Janet 104, 105 Hart, H.L.A. 8, 113

Index Hartmann, Heidi 179 Hastings, Warren 74 Hayek, Friedrich 7, 8 Hazare, Anna 152, 157, 165 heatwaves 145 heterosexuality 222 hijras 347, 349 Hindu fundamentalism 273; rising wave of 279–280 Hindu Mahasabha 62 Hindu Marriage Act 122–123, 129 Hindu marriages 122 Hindu nationalism 73 Hiral P Harsora & Ors v Kusum Narottamdas Harsora & Ors 121 HIV/AIDS 205, 321, 352 Holy Quran 283 Human Development Index (HDI) 189 human dignity 335 Human Genome Project 191 human rights 16–20, 92–94, 135–149; accountability and leadership for 147–149; anticipated consequences for 138–139; corruption and 151–170; Kashmiri Pandit discourse 375–376; violations 142 Human Rights Clinic of the Chicago law school 199 human rights violations 2 Husain, Tajamul 76 Idea of Justice, The 333 Illaiah, Kancha 49 Imam, Hussain 74 IMF 154, 160 immigrant women 191 Immoral Traffic in Persons Prevention Act, 1986 (ITPA) 103, 225, 238, 351 imperialism 65 India Exclusion Report 320, 321 Indian bourgeoisie 45 Indian capitalism 38 Indian Christians 62 Indian Constitution, identity and rights in 78–80 Indian Councils Acts of 1861 and 1892 59 Indian National Congress 14, 253, 388–392

407

Indian National Movement 10 Indian political economy 45 Indian secularism 72 India’s education policy 319–336 Indra Sarma v V.K.V. Sarma 120 Insurance Regulatory Authority Bill 35 Intergovernmental Panel on Climate Change (IPCC) 136, 137, 139 International Conference of Population and Development (ICPD) 181 intersectional approach 104–106 intersectionality 392–394 IPC 377 349–351, 354 Irom Shamila of Manipur 3 irrigation demands 138 Jal-Jangal-Jameen 360 Jammu and Kashmir Liberation Front (JKLF) 371 Janani Suraksha Yojana (JSY) 188 Jethmalani, Ram 167 Jinnah, Mohammed 60 jogappas 349 Johnston, Michael 154 Joseph, Kurian 292 Joshi, Sharad 45 Judicial Plan 74 jurisprudence 113, 115 jurisprudential dissociation 130 justice 122–131 Justice, Gender and the Family 197 justice as fairness 8, 385–386 justice gap 17, 104–106 Just Responsibility 144 Kabeer, Naila 207 Kantola, Johanna 185 Kaplan, Caren 99 Kapur, Ratna 94 Karachi session 65 Kardak, Waman 323 Karnatik music 341–344 Karve, D. K. 250 Kashmir 367–379; conflict, historical background 368–371; human rights discourse in 371–374; reconciliation, dilemmas and dialectics 376–378; state-security discourse in 374–375

408

Index

Kashmiri Pandit discourse 375–376 Kaur, Rajkumari Amrita 68, 74 Keck, Margaret 94 Khalid, Syed 275 Khan, Arif Mohammed 284 Khehar, J. S. 275 khojas 75 Khurana, Mitu 194 Khurshid, Salman 284 Kidwai, Saleem 347 Kishwar, Madhu 269 Kittay, Eva Feder 299, 300, 302 kothis 349 Krishna, T. M. 344 Krishna Bhattacharjee v. Sarathi Choudhury 120 Kshatriya 38, 48 Kymlicka 346 labour, division of 38 Latifi, Danial 280–281 law: gender, debates 115–116 Lawson, Max 326 legal-institutional power 104, 105 Levy, Jacob T. 81 LGBT community 354 liberal constitutionalism 57 liberal democratic politics 40 liberal discourse, civil rights 388–392 liberalization 40 liberal theory 6 liberation theology 334 libertarians 201 License Raj 155 Lim, Lean Lim 350 Lingayats 48 Lohia, Ram Manohar 48 Lokpal 156 Lucknow Pact 59 MacDonald, Ramsay 61 MacKinnon, Catherine 9, 115, 116, 180 Maharaja Hari Singh of Kashmir 368 Maharashtra Regulation of Use of Prenatal Diagnostic Techniques Act 183 Mahometans 74 Mahrattas 60 Maichia 347 Mandal, B. P. 51

Mandal Commission report 33 Mander, Harsh 155 Manjule, Nagraj 322 mapping theory 382–384 marginalized communities 26 Marhattas 61 marital rape 122, 123, 127, 128, 131 marriage 127 Marshall, T. H. 340 Marx, Karl 42 Marxist feminism 202 Marxist feminists 98 Masani, Minoo 74 masculine sexuality 237 Massey, James 79 Maurya, Swami Prasad 276 Mayo, Katherine 90 Mazdoor Kisan Shakti Sanghatan (MKSS) 167–169 Mazumdar, Vina 261–264 Medical Termination of Pregnancy (MTP) Act 102, 182–184, 188 Mehta, Hansa 74 Mehta, Pratap Bhanu 329 Menon, Nivedita 264, 267 mental health conditions 141 Mill, Harriet Taylor 179 Mill, John Stuart 7, 142, 179, 222 Millett, Kate 180, 218, 222 Millian argument 75 Minority Rights sub-committee 69 minority safeguards 273–293 Modi, Narendra 158, 161 Moghadam 100 Mohanty, Chandra Talpade 95, 100 Montagu-Chelmsford Reforms 59 Montague-Chelmsford enquiry 250 Mookerjee, H. C. 64 Mookerjee, S. P. 77 Moon, Meenakshi 257 Morley-Minto reforms 59 Mosher, Steven 198 multicultural constitutionalism 80–83 multiculturalism 57 Munshi 76 Munshi, K. M. 66, 73, 75 Muralidharan, Karthik 152 music 338–339; universal sound of 344 Muslim asylum seekers 93

Index Muslim League 63, 74 Muslim Rashtriya Manch 3 Muslims 62, 63, 69, 253, 268 Muslim United Front (MUF) 371 Muslim Women’s Act (MWA) 278, 281 Naidu, Sarojini 249, 250 Nanjundaswami 45 Narayan, Jayaprakash 10–11 National Campaign for People’s Right to Information (NCPRI) 167 National Council of Women in India (NCWI) 248 National Family and Health Survey 127 National Population Policy (NPP) 181 National Rural Employment Guarantee Scheme (NREGS) 152 National Rural Health Mission (NRHM) 188 Nehru, Jawaharlal 14, 64, 388 Nehruvian principles 10 neoclassical economics 154 new sabhas 341–344 ‘new woman’ 248–254 Nickel, James 161 Niehaus, Paul 152 nikahnama 276–277; protective clauses 286–288 non-cooperation movement 388 non-discrimination 89–91, 278 ‘Not in my name’ campaign 2 Nozick, Robert 7–8 Nussbaum, Martha C. 194–197, 203, 217, 218, 221, 225, 242, 386 obligation 243 Official Secrets Act 169 Okin, Susan Moller 9, 203, 386–388 old raagas 341–344 Oliver, Mike 312 Omvedt, Gail 101, 256 Oommen 48 oppressed classes 55 optimism 157 Origin of Private Property, Family and State (1884) 179 Other Backward Classes (OBCs) 83, 258, 264, 267, 268

409

otherness, institutionalization of 115 oxymoron 123 Panagariya, Arvind 324 Panchayati Raj 34, 39, 53 Panchayats Extension to Scheduled Areas Act (PESA) 26, 358–366 Pant, Govind Ballav 65 parliamentary democracy, erosion of 2 Patel, Sardar Vallabhbhai 69, 70 Pateman, Carole 9 Pathak, Zakia 290 Patnaik, Prabhat 159 patriarchal ideology 221 patriarchal sexual economy 225 patriarchal sexual politics 222 patriarchal state 203 Paul, Samuel 166 Pawar, Urmila 257 People’s Democratic Party (PDP) 367 People’s War 44 perennial western malady 7 period of disruption 158 PGA v The Queen 126 Philips, Anne 266 philosophical traditions 2 Planning Commission’s Expert Group (2008) 360 Platform for Action for women 181 political community 147–149 political decision making 146 political democracy 338 political economy 42 political elites 39 political instability 35 political liberties 8 political minorities 77 political mobilization 51 political rights 42 political struggles 33 political theory 5 polygamy 288 Poona Pact 62, 265 post-modern feminism 207 poverty 136, 145 poverty-eradication programmes 40 power: dimensions of 33–56; social dynamics 41 pragmatic-epistemological strategy 91 Prakash v Phulawati 274

410

Index

Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT Act) 117, 185, 187, 188, 190, 193, 195, 198 prejudice 13 Pre-Natal Diagnostic Tests Act (PNDT Act) 183, 184 Prenatal Non-discrimination Act 190 Press Council of India (PCI) 167 Prevention of Corruption Act 1988 (PCA) 156 Prevention of Family Violence Act 1993 125 primary goods 385 primitive communism 42 private-sector corporations 95 pro-abortion feminists 186 Progressive Women’s Organization (POW) 262 proselytization 73 prostitution 102, 103, 215–245; debate, feminist responses 226–229; field study 229–239; women’s rights 223–226 Protection of Women from Domestic Violence Act (PWDVA) 117–119, 195 Provincial Legislative Assemblies 58 psychological violence 123 public distribution system (PDS) 155 purity and pollution, Brahmanic concept 48 Quit India movement 388 ‘Quit Kashmir’ movement 369 radical feminism 207 Rajan, Raghuram 358 Rajan, Rajeshwari Sunder 290 Ramasamy, E. V. 391 Ram Janamabhoomi movement 36 Ramsay MacDonald Award 253, 256 rape 116, 122, 124, 126 Rashtriya Janata Dal 52 Rawls, John 8, 196, 197, 242 Raz, Joseph 6 Reagan, Ronald 36 Reddy, Muthulakshmi 250, 255 reflective autonomy 381–401; concept of 396–401; emancipation

398–399; empathy 398; engagement 397–398 regimentation 76 religions 20–23, 39 religious minorities 74 rent-seeking activity 155 Report of the Fundamental Rights 68 Report on Minority Rights 69 reproductive justice 191 reproductive rights 179–210; customary rights 181; evolution of 180–182; natural rights 181; social rights 181 responsibility 144–145, 243 responsibility for injustice 144 Retzlaff, Ralph H. 66 Rich, Adrienne 222 rights: constitutionalizing 57–86; foundations of 6–9; theorizing 16–20 Right to Education Act 165 Right to Information Act (RTIA) 166, 167 right to practice 1 right to privacy 1–2 right to safe abortion 3 Robinson, Mary 163 Rohatgi, Mukul 277 Rorty, Richard 9 Round Table Conferences 61, 251 Roy, Aruna 156, 159 Roy, Arundhati 165 Roy, Marlene 140 Ruthnaswami, M. 73, 77 ‘Sabka Saath-Sabka Vikas’ development model 19 Sachar Committee Report 12 Sahib, Mohd. Ismail 74, 76 Sandel, Michael 192, 327 saptapadi 122 Sarda Act in 1929 251 Sarkar, Lotika 261–264 scattered hegemonies 99 Scheduled Castes 69–71, 77, 83, 258, 264, 265 Scheduled Tribes 70, 71, 77, 83, 264, 265 secularism 74 sedition laws 2

Index self-governance 359 self-ownership 21, 221–223, 241 Sen, Amartya 24, 188, 197, 217, 324, 333, 385 Sen, Ilina 55 Sen, Pronab 159 Sevenhuijsen, Selma 301 Sewadeshi Jagaran Manchi 35 Sex and Social Justice 194 sex determination 102, 183, 208 sexist-consumerist hypermarket 215 sex-selective abortions 102, 117, 179–210; criminalization of 186; discourses 187–202; equality discourse versus demographic discourse 187–190; in India 182–185; justice discourse versus crime discourse 190–198; policy responses 185–187; rights discourse versus ethics discourse 198–202 sex-selective family balancing 192 sexual abuse 124 sexual harassment 12 sexuality 53; Indian state and rights to 349–351; trajectories of 346–355 sexual objectification 122 sexual politics 218 Sexual Politics (1971) 180 sexual violence 124 sex work 103, 227, 228, 350, 351 sex workers 351 Shah, K. T. 76 Shah, Nandita 55, 263, 266 Shahabano 290 Shah Bano verdict 103 Shambhu and Another v State of Haryana 130 Shamim Ara v State of Uttar Pradesh 282 Shariff, Abusaleh 275 shelter 138 Sherin, B. S. 274 Sheth, D. L. 49 Shetkari Sangathana of Maharashtra 45 shiv-shakthis 349 shudras 38, 39, 48 Sibal, Kapil 277, 285 Sikhs 62, 69, 70, 253 Silvers, Anita 301

411

Singh, Kirti 194 Singh, Manmohan 320 Singh, V. P. 33, 49, 309 Sinha, Mrinalini 253 Smart, Carol 116 social abuse 161 social common sense 327 social conflicts 33 social discrimination 79 social dynamics, power 41 social hierarchy 39 Social Justice and Empowerment 353 social movements 114 social persecution 13 social protection schemes 207 social reform 248–254 social responsibility 221 social transformation 33–56 social welfare programmes, cutbacks 151 social welfare rights 7 south India: caste in 338–345; classical music in 338–345; Karnatik music in 341–344 Spivak, Gayatri 90 spousal rape 128 S. R. Batra v Taruna Batra 118 Srinivas, M. N. 48 standard nikahnama 288 State of M. P. v Madanlal 130 state-security discourse, in Kashmir 374–375 State v Vikash 129 STD/HIV intervention 227 Steans, Jill 203 stereotypes 347 Stoltenberg, J. 223 stridhan 121 Structural Adjustment Programme 55 Subbalakshmi, M. S. 344 Subjection of Women (1869) 179 sui generis 113 Sukhtankar, Sandip 152, 155 Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) 103 surgical strikes 3 Sustainable Development Goals 126 syncretic feminist approach 179–210; intersectionality approach 202–207

412

Index

Tanzi, Vito 154 Teltumbde, Anand 265 Thakur, T. S. 282 Thatcher, Margaret 36–37 A Theory of Justice 196 ‘Third World’ women 90, 91, 93, 98 Thomas, Carol 313 Tikait, Mahendra Singh 45 Tilak, Lokmanya 10 top-down power-sharing model 63 Towards Equality: Report of the Committee on the Status of Women in India 101 trade union movement 47 trade unions 42 transgender 25; civil and constitutional rights, violation 351–354; population 3; rights of 346–355; state and identity 348–349 Transgender Welfare Board 353 transnational feminism 90, 91, 106, 107; possibilities and challenges of 97–100 transnational feminists 95 triple talaq 3, 22 triple talaq controversy 273–293; in nikahnama 276–277; nonreporting, historic judgement 280–281; personal laws, complex terrain 277–279; postscript, verdict 291–293; Shamim Ara 281–283; Shayara Bano 281–283; Supreme Court, arguments 283– 286; tightrope walk 274–276 Tronto, Joan 301 T. Sareetha v T. Venkata Subbaiah 129 UN Committee on the Elimination of Discrimination against Women 126 uniform civil code (UCC) 278, 289 United Nations Children’s Fund (UNICEF) 199 United Nations Fund for Population (UNFPA) 199 Universal Declaration of Human Rights (UDHR) 136, 143, 161 unplanned urbanization 140 unrapability 122–131 untouchables 48, 62

urban economy 366 urbanization 140 Vaishnav, Milan 152, 155 vaishya 38, 48 Vanita, Ruth 347 veil of ignorance 82 Vemula, Rohith 319 Venema, Henry David 140 Vindication of Rights of Woman 179 violence 128, 233 Vishakha judgement 117 vivadi swaras 344 Vokkaligas 48 Walzer, Michael 9 Watson 313, 314 welfare capitalism 42 Western political economies 43 whore–virgin divide 226 Wiesel, Elie 327 Williams, Fiona 298, 313 Wollheim, Richard 6 Wollstonecraft, Mary 179 women: ambivalences, able-bodied society 306–307; anxieties and plans 309–310; autonomy 204; bodies and idea of self-ownership 221–223; and bodily autonomy 218–221; care, method 302–303; care and disability 297–298; caring and reproductive health 312; causality, attributions of 309; communalism and caste 254–258; conflicting role and financial demands 304–305; core categories analysis 304; Dalit 22; dependence and autonomy, issues 307–308; disability discourse of caring, tensions 300–301; disabled daughters, intimacy and relationship 311–312; engendering development 54; equality and autonomy politics 261–263; ethics of care 299–300; ethics of justice 299–300; family support 308–309; gender and caste, postnational conflict 263–269; gender and disability 298–299; Hindu scriptures and 39; and human rights

Index 218–221; issues of care 297–315; issues of sexuality 310–311; lack of morality in 200; movement, fundamental responses 116–117; multiple roles, limited time 305–306; ‘new woman’ 248–254; in politics 247–270; proliferation of rights 12; in prostitution 215–245; question, constitutional resolution 258–260; rights 53–55; rights, trajectory 100–104; rights discourse of 215–245; rights for gender equality 5; right to safe abortion 3; ‘self-esteem’ of 201; ‘selfhood’ of 217; sex trade 95; sexuality 54; social reform 248–254; stigma, issues of 306–307; subject of politics 248–254; understanding care, policy 301–302; violence against, Article 2 123 Women and Human Development 196

413

Women’s Indian Association (WIA) 248, 250, 255 women’s liberation discourse 53 women’s movement 34, 252; fundamental responses 116–117 Women’s Reservation Bill 247 work 20–23 work, trajectories of 346–355 working-class movement 43 Workman’s Compensation Act 351 World Bank 154 World Social Forum (WSF) 95 World Trade Organization 35 Yadav, Laloo Prasad 52 Yadav, Mulayam Singh 52 Yadav, Sharad 265 Yogyakarta Principles 348 Young, Iris Marion 89, 346, 392 zamindaris, abolition of 39