Society and Law : An Exploration across Disciplines [1 ed.] 9781527500853, 9781443895798

Citation preview

Society and Law

Society and Law: An Exploration across Disciplines Edited by

Ayan Hazra

Society and Law: An Exploration across Disciplines Edited by Ayan Hazra This book first published 2017 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2017 by Ayan Hazra and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-9579-2 ISBN (13): 978-1-4438-9579-8

TABLE OF CONTENTS

List of Tables and Figures ......................................................................... vii Preface ........................................................................................................ ix Acknowledgments .................................................................................... xiii List of Abbreviations ................................................................................. xv Chapter One ................................................................................................. 1 Value Absorption and Social Practices: An Audit of the Impact of the Indian Constitution Udai Raj Rai Chapter Two .............................................................................................. 13 Law, Morality, and Religion in the Courts in England and Wales in the 21st century Noel Cox Chapter Three ............................................................................................ 31 Commercialization and Globalization of Higher Education in India: The Need for Social Audit Sheela Rai Chapter Four .............................................................................................. 47 Value Debates on Abortion Sandeepa Bhat B Chapter Five .............................................................................................. 63 Workplace Sexual Harassment and Institutionalization of the Status Quo: A Critique of the Existing Law in India Lovely Das Gupta

vi

Table of Contents

Chapter Six ................................................................................................ 85 Trajectories of Jurisprudence: At the Intersection of the Legal and the Social Dev Pathak and Md. Mostafa Hosain Chapter Seven.......................................................................................... 101 The Rights of Unwed Mothers versus the Rights of Unwanted Children in India: A Critical Legal Analysis Debarati Halder Chapter Eight ........................................................................................... 119 The Role of the “None of the Above” Option in Deepening Democracy: Reflections from India Subhashree Sanyal and Moumita Laha Contributors ............................................................................................. 129

LIST OF TABLES AND FIGURES

Table 8.1 Voter Turnout for Elections 1951–2014 Table 8.2 States and Union Territories Opting for NOTA in the 2014 Lok Sabha Elections (%) Figure 8.1 NOTE Votes out of Total Votes Polled in the States/Union Territories in General Elections of Legislative Assemblies (Oct.–Dec. 2013)

PREFACE

Human behavior is full of contradictions and contradictory elements. The very fabric of human existence is full of warring elements trying to overwhelm each other. Law is a part of human existence; it is, in fact, the basis of its existence. The importance of legislation, therefore, cannot be over-emphasized. Legislation is vital to bringing about social change. Relations between an individual, society, and the state have always been changing. In this context, various theories have been proffered from time to time. In the beginning, society was governed by customs that only had a social sanction. Then, there emerged the priests, who established themselves as supreme. Subsequently, there arose the secular state, which became very powerful and began to dominate all other institutions. In response to this, thinkers and philosophers began to assert the importance of the individual. As a result, there ensued revolutions and political changes. It became imperative to balance the welfare of society and the individual. The changed political philosophy, new theories of science, the Industrial Revolution, new economic thoughts, and innovative ideas in the other social sciences in the 19th century, also influenced legal thought. French and German thinkers laid the foundation for the ideas of Communism and Socialism, which provided fresh insights into the purpose of law. The end of law is to serve a purpose—not an individual but a social purpose. When the individual purpose comes into conflict with the social purpose, the onus is on the state to protect and further those social purposes, and suppress the individual purposes which clash with them. This end may be served either by regard or by coercion organized in a set form by the state. Law is not only a means to control the social organism but also a way to protect and further all social purposes. Law is only one factor among many others. There are some conditions of social life, such as climate, for which no legal intervention is needed. Social and legal discourses address the purpose of law. Law, then, is a purposeful instrument that promotes benevolent objectives. This is very much in the scheme of things, especially since it is considered that the state itself is born and lives for a noble purpose. Law is a critical instrument for any state, a duty-bound soldier that effectuates the primordial commitment of humans’ actions and desires to the cause of good behavior and justice.

x

Preface

The most important aspect of society and law is the output of social change, which arises from different types of group activities—modified interpersonal and inter-class relationships, changed attitudes and approaches of the people and the government toward governance, family, and public life, economic processes, and social outlook. Change is the basic rule of nature; everything changes, except the rule of change. Old orders change, giving way to the new. Preparing society for change through democratic means has logistic implications. Agencies and aspirants of change welcome and try to internalize the change, while the advocates of stagnancy oppose the phenomenon. Since change is a concept linked with society in our discourse, it is essential to understand the framework of society. Society is an organized, interdependent community with functional unity among its diverse members and a tendency toward stability in behavior. Society constantly constructs nature, human resources, and aptitudes for continuous interaction, and all of these make up its basic characteristics. Language, religion, morality, ethnic and regional bases, and economic processes create behavioral constants. Some of the factors apart from law that bring about social change include demography, technology, economy, and culture. Cultural factors, such as basic orientation in religion, morality, and social outlook, influence the direction and extent of social change. Group conscience constructed in the form of literature, art, language, custom, law, and public institution—because of distinct identities projected by it—significantly impacts society’s mindset during the process of internalization of social change. The first chapter in this collection is by Udai Raj Rai. This essay attempts to undertake a reality check on the occasion of the 66th anniversary of the Indian Republic. It is limited to an assessment of the strengths of the liberal democratic values of the Constitution and its religious and cultural pluralism. In the context of the disquieting noise that has been heard for quite some time, the chapter refrains from offering any positive and definitive answer. Instead, it leaves the introspection to India’s citizenry and countrymen. What is definitive is that Adam Smith believed in both economic and political liberalism—worship of economic liberalism sans political liberalism—but this resulted not in democracy but in some other political order, which could possibly weaken social and political unity, and the values which the framers of the Indian Constitution had cherished and longed for. In his chapter, Noel Cox describes how the relationship between law and society is inherently influenced by the nature of the society in which the law operates—it is a product of that society, whether we perceive law from the perspectives of natural law, legal positivism, or realism. It is

Society and Law: An Exploration across Disciplines

xi

important to consider the attitude of the legal system toward the dominant or prevailing cultural environment. In this context, any change in the environmental background, such as changing demographics, may cause tension between law and society. The chapter by Sheela Rai tries to explain the two platforms— education and its commercialization—within a structure. It speaks about the doctrine of “Aa No Bhadrah Kratvo Yantu Vishwatah” (“let noble ideas come from all directions”). This was the ideal of Indian society in earlier times. However, the threat of cultural extinction led to the development of a closed society in India. With the advent of the British, India opened up once more and allowed Western influence to shake her people from deep slumber. The influence of Western education made the Indians aware and proud of their heritage. Education was commercialized during this period in India and the country’s education system began to grow fully. Gradually, the higher education system in India became completely commercialized, with the burgeoning of new, private universities in every district across the country. The hegemony of Western influences on India’s higher education system necessitated an examination of the commercialization of higher education vis-à-vis the constitutional ideals of equity and justice. Separation of social reality and education—it was felt—would generate uneducated literates, who would despise society and be rebuffed in return. It could also result in dangerous reactions against everything foreign, resulting in some form of fanaticism. Therefore, it was advocated that a continuous social audit of the higher education system in India be undertaken in order to enable society to flourish. Such a system would generate respect for education, the educational institutions, and the educated. Sandeepa Bhat B sheds light on the values and debates surrounding abortion in the states of India. She attempts to find the right balance required when dealing with the complexities posed by the act. The chapter explains the meaning and the types of abortion existing today to enable a better understanding of the varied concerns in the different cases studied. It also examines the arguments against abortion not only from the perspectives of religion, but also from the viewpoints of various scholars. Further, the chapter deals with various arguments made in favor of the right to abort, before concluding with the author’s personal perspective on the issue. Lovely Das Gupta discusses the current public discourses relating to sexual harassment in the workplace, raising questions in the domain of law and policy. Her chapter focuses on the role of the legal fraternity and its response to the issue. Considering that the legal fraternity is divisible into

xii

Preface

groups of practicing lawyers, non-practicing lawyers, and judges, the response is expected to be different, in keeping with the position each group occupies. However, the responses of these groups have been similar to the extent that they have helped maintain the status quo of the aggressor. These responses have only reinforced the power dynamics between the victim and the aggressor. The chapter argues that the issue of workplace sexual harassment will continue to be treated ambiguously by the legal fraternity, unless all groups (legal and non-legal) break their silence and reject all deference to power dynamics and status quo. Dev Nath Pathak and Md. Mostafa Hosain examine the legal and social truisms surrounding, and the relations between, human behavior and law, all of which are integral to society. The existence of law without the existence of society makes little sense. Law underpins the idea of the social order and, thereby, the platitudes of peace and harmony. Curiously, laws too have social inception. In addition, the idealism that oversees the social formation of laws mandates that the latter should be in consonance with the socio-cultural normative structures. The yardstick by which to assess society’s name and fame entails an examination of the law prevalent in that society. In contemporary society, law comprises primarily black-and-white texts or codified customs. This essay attempts to highlight the significance of jurisprudence in the context of law and society. It studies the essence of the socio-cultural configurations of law and attempts to present a framework of the scope of jurisprudence. Debarati Halder argues about the rights of unwed mothers. Rape victims and prostitutes may get special benefits, for themselves as well as for their “unwanted children” (under special circumstances). However, a series of contradictory “rights” clash head-on when such children are abandoned or surrendered by unwed mothers. These include unwed mothers’ right to abandon their children and the children’s right to stay with their mothers (who may otherwise be fit guardians), among others. Subhashree Sanyal and Moumita Laha handle the issue of the “None of the Above” option (NOTA)—a recent addition to the Indian electoral process. It fosters transparency and gives people the opportunity to express their dissent. This is important, as it introduces greater accountability and reduces the adverse dominance of political wings in the country. This chapter analyzes the option of NOTA and the role it can play in the electoral process of any country. The chapter also incorporates the recent implementations of NOTA (after 2013) and its effects on the Union and State Assembly elections in India. It concludes by considering why the impact of its implementation and its significance may be difficult to realize, despite NOTA’s pressing importance.

ACKNOWLEDGMENTS

I fall short of words to express my gratitude and indebtedness to the authors who have contributed their papers and made this book possible. I want to thank Cambridge Scholars Publishing, United Kingdom, for their cooperation, patience, and interest in printing and publishing this book. I know the words at the command are inadequate to express my glowing salutation to my beloved parents and my venerated brother and his family, Vaidehi and Sara for their deep affection, extreme devotion, extraordinary care and unique help throughout my life. I express my emotional sense of feeling and affectionate to my wife for her love, inspiration, sacrifice, encouragement and cooperation. I also want to thank my daughter Hiranya and my son Trinabh. Above all, I thank God almighty for his blessings and for showing me the right path that empowered me to reach this far. Dr. Ayan Hazra

LIST OF ABBREVIATIONS

CARA CEDAW CBS CLS CWC FDI ICC IISL IPC ISRO JNU LCC MSW NEET NGO NLSIU NOTA NUJS UGC WHOA

Central Adoption Resource Authority Convention on the Elimination of All Forms of Discrimination Against Women Cradle Baby Scheme Critical Legal Studies Child Welfare Committees Foreign direct investment Internal Complaints Committee International Institute of Space Law Indian Penal Code Indian Space Research Organization Jawaharlal Nehru University Local Complaints Committee Masters in Social Work National Eligibility cum Entrance Test Non-governmental organization National Law School of India University None of the Above National University of Juridical Sciences University Grants Commission Working for Halting Online Abuse

CHAPTER ONE VALUE ABSORPTION AND SOCIAL PRACTICES: AN AUDIT OF THE IMPACT OF THE INDIAN CONSTITUTION UDAI RAJ RAI

(1) Constitutional historian Granville Austin, in his famous book The Indian Constitution: Cornerstone of a Nation (1972, 50), said that the Indian Constitution is essentially a social document. It not only provides a framework for governance but also contains a blueprint for the social transformation of the country. That blueprint is largely to be found in Parts III and IV of the Constitution. As is well known, Part III contains the Fundamental Rights and Part IV the Directive Principles of state policy. To get an essence of the provisions of these two parts, it is enough to have a glimpse of the Preamble, which promises Justice: social, economic, and political; Liberty of thought, expression, belief, faith, and worship; Equality of status and of opportunity; and the intention to promote Fraternity among the people, assuring the dignity of the individual and unity and integrity of the nation. A short while ago, we celebrated the 66th anniversary of the Indian Republic. Given the Constitution has been in force for the last 65 years in the country, it would be appropriate to take stock of some of the changes that have characterized the country’s socio-political system in terms of the prescriptions contained in the Constitution. To cover the whole area would be a tall order and the narrative, post-research, would fill a few volumes. The objective of the present chapter, however, is rather modest. It examines only one theme with the help of some known Supreme Court decisions, that is, the freedom of thought and expression—a prerequisite for democracy—as established by the Constitution. The chapter does not have any empirical inputs except the broad impression formed by reading

2

Chapter One

newspapers. Since it depends entirely on litigation materials based on media sources, a social scientist can form either of the following conclusions: One may say that these are mere aberrations in an otherwise healthy system or, one may conclude the opposite and call it the tip of an iceberg. One could, therefore, either grab the attention of the media, or muster resources and, with determination, challenge the transgression of the right in a court of law. The author himself is non-committal. The readers, assisted by their own experiences, may draw their own conclusions.

(2) The constitutional mission addresses the people and the state. The responsibility of the state is naturally higher. A state has to not only honor the constitutional values but also protect the coercive state machinery from those who oppose the new values and practices. A citizen has every reason to expect that political leaders, state officials, and judges would have started their post-1950 journey of navigating the state by fully immersing themselves in the new constitutional values. However, some of the facts which have come to light, create serious doubts in this respect. A few examples in this regard should be enough. It is common knowledge that the national movement led by the Congress consistently opposed the system of separate electorates for minorities and communal quotas for different communities with regard to recruitment to different services and admissions to educational institutions. The Constitution of the Republic of India fully embodies the above philosophy of the national movement. 1 However, despite this, in the initial years of India as a Republic, the Congress Party-led state governments, in some cases, acted against the long-held views of their own party and violated the basic theme of the Constitution. The Uttar Pradesh (U.P.) municipal electorate2 and the State of Madras used the communal quota circular for recruitment to the services and for admission to educational institutions. When challenged in court, the Supreme Court intervened in defense of the Constitution. 3 Instead of feeling ashamed for violating a principle which they themselves had propounded, the senior leaders of the Congress Party painted it as a conflict between the Rights and the Directives, and accused the Court of according a secondary position to the Directives. 1

See Article 325 of the Constitution. See Nainsukhdas v. State of U.P. AIR 1953 SC 384. 3 See State of Madras v. Smt. Champakam Dorairajan AIR 1951SC 226; and Venkataraman v. State of Madras AIR 1951 SC 229. 2

Value Absorption and Social Practices

3

It was not only the executive that took considerable time to live up to the standards it had prescribed in the Constitution it had framed; the judiciary also took a long time to realize the importance of constitutional values—especially those contained in Part III, which discussed fundamental rights. It had been a constant demand, which the British Parliament had declined to accept. From a narrow point of view, it may be said that constitutional provisions containing guaranteed fundamental rights are nothing more than legally enforceable rules. However, if correctly understood, they are much more than that. First, the constitutional language tries to embody certain ideas and concepts, whose width, magnitude, and potential for further growth cannot be compared with any other formal rule of law. Second, these rights embody certain values in the form of reassurances to the people that restrain their rulers from behaving in a manner which is abhorrent to those values and the culture. It would appear that the Indian Supreme Court—in some of the vital areas, such as personal liberty,4 free expression,5 and equality6—was very slow to grasp the full importance of a charter of basic rights. Perhaps because of the importance of the communal and ethnic problems witnessed during India’s pre-independence days, it appeared to have been fully sensitized to the importance of the rights to religious freedom and minorities’ rights to administer their educational institutions.7 It, of course, zealously guarded property rights, which brought it into confrontation with Parliament. 8 However, in the important areas of equality, free expression, personal liberty, and fair trial, it exhibited an attitude which was narrow and formalistic, and tended to accommodate governmental susceptibilities beyond all bounds of reasonableness. Some notable examples are given below. The Supreme Court decision in the “Kesavan Madhav Menon v. State of Bombay”9 case illustrates the attitude of the Court as well as that of the political elite toward fundamental rights, especially with regard to the matter of political dissidence in a democracy. The case clearly shows that there was no difference between the colonial government and the postindependence set-up with respect to political dissidence. In this case, Mr. Menon had violated the Press Emergency Powers Act, 1931, by publishing 4

See A.K. Gopalan v. State of Madras AIR 1950 SC 27. See Kesavan Madhav Menon v. State of Bombay (1951) SCR 228. 6 See Chiranjeet Lal Choudhary v. Union of India AIR 1951 SC 41. 7 In Re The Kerala Education Bill, 1957 AIR 1958 SC 956. 8 One such case is State of West Bengal v. Bela Banerjee & Ors. AIR 1954 SC 170. 9 1951 SCR 228. 5

4

Chapter One

a pamphlet without obtaining prior permission from the government as required under the Act. This exposed him to criminal liability. The violation had occurred after India had attained its independence, but before the promulgation of the Constitution. Therefore, he could not seek the protection of the Right to Free Expression guaranteed under Article 19(1)(a) of the Constitution. It was not disputed that the law was repressive. However, the law was meant to curb the freedom of movement and was inconsistent with Article 19(1)(a). Still, the state government of Bombay, in free India, decided to prosecute Menon, and the prosecution continued even after the commencement of the Constitution, which contained Article 19(1)(a). The short question before the Supreme Court was whether this was permissible. The answer of the Court was in the affirmative. In purely formalistic terms, the Court reasoned that fundamental rights did not have a retrospective effect; that Mr. Menon had violated the law on a day when it had not yet become void; that the rights and liabilities that had already accrued under the law would not vanish after the law became void; and that, therefore, his prosecution would continue and his punishment would be constitutionally valid. The only thing that is disquieting here is that the Court did not bother to think that the attainment of independence, the inauguration of the democratic Constitution, and the guarantee of basic human rights, including the Right of Political Dissidence, were meant to herald the dawn of a new era, qualitatively different from the one it replaced. At a time when jurists and scholars such as Radbruch, Fuller, and Hart were arguing about how best to punish people who had acted legally but according to evil laws under the discredited regime of Hitler in Germany (Friedmann 1967), the Indian Supreme Court, by applying an extra-formalistic and extra-positivistic logic, was validating the punishment of an Indian citizen for violating an evil law of a repressive regime after the country had become independent and proclaimed itself a sovereign, democratic republic. Some further examples may be given to show how some of the judges and political elites sought to devalue the force and importance of these fundamental rights. It would suffice to point out, without entering into a discussion of the cases, that doctrines and theories were propounded, and that these maintained that despite the mandate of Article 13, any law inconsistent with a fundamental right was void. Such laws only became dormant and not totally null (Rai 2011, 723–729) as a result of the Constitution’s First Amendment Act, 1951, Article 31 B. These were added to the Constitution along with Schedule IX. The Parliament, by a special majority, could put any law in the Schedule, which exempted that

Value Absorption and Social Practices

5

law from complying with the fundamental rights. 10 In substance, the Amendment confirmed the special majority of the Parliament—a kind of dispensing power. One of the sins of King James II of England was that he claimed dispensing power, because of which he lost his throne and had to flee to France.

(3) In the preceding section, Kesavan’s case relating to the freedom of expression has been mentioned only to point out the lack of sensitivity toward an important constitutional value—a value that is considered the backbone of a democracy when the Constitution claims that the new political system established under it is a democratic republic. Now, it is time to discuss freedom of expression as such. Under Article 19(1)(a) of the Constitution, every citizen has the Right to Freedom of Speech and Expression, and under Article 19(2) this right can be reasonably restricted by law in the interest of India’s sovereignty and integrity, security of the state, public order, friendly relations with foreign states and administration of justice, protection of reputation and privacy, decency and morality, and to prevent incitement to an offense. Subject to the possible limitations that may be imposed on these grounds, the right of expression is as wide as the term “expression” itself. This includes both kinds of expressions: those which communicate with an audience, and those which do not have any audience in view and are mere spontaneous expressions of feelings and emotions, such as joy or sorrow. When the discussion is in the context of democracy, it is the first kind of expression that is particularly important. However, the second is not totally irrelevant because the right to speech is an aid to democratic virtues. It guarantees certain liberties to the people in their private and social lives. Moreover, many writers, poets, and artists believe in the theory of art for art’s sake and write or paint for their own satisfaction. In addition, when one wants to communicate an idea or message, one is free to adopt any conceivable and available mode that helps the attainment of one’s objective. If certain devices are available whereby one’s thoughts or messages can be spread among a larger number of people, the freedom to use that device also stands guaranteed. The content of the messages can be political or non-political, serious or nonserious. However, everything must be within the limits of decency and should not create alarm or defame someone, or incite or provoke people to

10

See article 31 B of the Constitution, which was inserted in 1951.

6

Chapter One

create disorder. As the famous saying of Justice Holmes goes, “you cannot shout fire in a crowded theater.” 11 In a democracy, the most important role is played by the media, which is owned and run by those who can make substantial financial investments. The media enjoys the right of free expression and since it comprises the purveyors of news and views, it has the ability to mold public opinion. In a democracy, this makes a difference and, often, considerably impacts electoral results. Therefore, there are problems centered on media ethics and access. It is in this regard that two theoretical propositions may be put forth. First, editorial freedom is the essence of media freedom; and while news is sacred, the media may have its own views. However, the problem is slightly distorted in India. Most of the newspapers are owned by people whose main concern is some other business.12 Thus, the media–business nexus is reflected in different ways. The editor’s freedom is converted into the proprietor’s freedom, and in the circumstances very few editors have real security of tenure. The government can easily influence editorial policy by coercing the businessman-proprietor. Second, of late, it has been observed that some politicians may have struck deals with some newspapers, leading them to publish news that impacts the elections. In principle, there is always the problem of the concentration of media. 13 It has not been possible to deal with the problem effectively without affecting the freedom of the press. Steps have been taken to prevent monopoly and encourage circulation of multiple and diverse newspapers in every district and area in the country, and the progress thus far has been considerable. The Press Council has been seen to function within certain limitations. The newspaper readership has been rising but the sad part of the story is that, though the readership of vernacular newspapers is high, there are not many standard-vernacular newspapers. Even the English-language newspapers do not quite match up to the current international standards. One positive development is that quite a few newspapers have started to follow a system of employing an internal ombudsman.14 Electronic media has spread very fast. There is a need for an independent body, similar to the Broadcasting Authority of India, that would remain free from all governmental influences and ensure proper 11

Schenk v. US 249 U.S. 47, 52 (1919). AIR 1962 sc 955, 132–138. See also the Report of the II Press Commission. 13 AIR 1962 sc 955, 132–138. 14 One such newspaper is The Hindu. 12

Value Absorption and Social Practices

7

standards of broadcasts and telecasts. The situation is so serious that, at times, it becomes difficult to distinguish between the anchor of a program and its participants. All said, the country has made reasonable progress in the area of freedom of expression, including in media freedom. The courts’ jurisprudence has also kept pace such that they have come to the rescue of aggrieved citizens. However, the dark side must also be noted, attributed as it is, perhaps, to the lack of proper political education and, partly, to the lack of total commitment to the constitutional values. There are people who behave like aliens to the system and create one sensational news story or another. Such people can be found even at the helm of affairs at the local level. It is not necessary to enumerate and name every case and incident. It is enough to say that such cases have been considerable enough to cause concern, though not widespread alarm: a professor at a university in West Bengal was arrested and put in prison for posting a cartoon on the Internet; unauthorized people seemed to have suddenly assumed the role of censors; reputed authors and publishers withdrew books from circulation to buy peace; a Tamil-language novelist vowed never to write fiction again. The list is endless. Film producers, thus far, have been able to display stronger will against blackmail, possibly because they have already invested their fortunes in the production process. Young men and women, however, have to be careful when visiting public parks or other public places, lest they become targets of certain self-appointed moral police squads; reputed centers of reference material have to protect themselves lest they are vandalized because some author used their material to write something which the vandals found objectionable. Freedom of thought and expression, which necessarily includes the freedom to dissent, is a value that can flourish only in an atmosphere of tolerance, not only on the part of the government but also of society at large. Of course, every society takes its own time to imbibe this value. As a matter of fact, it has to be actively nurtured. However, it appears that the job is being performed only by the judiciary. Though Supreme Court decisions are expected to be treated as models, there appears to have developed a situation where the same wrong is repeated in other cases and every aggrieved person is required to re-establish the same thing repeatedly, through a court of law. The strange thing is that every wrong is sought to be justified in the name of our ancient civilization. We are informed by Prof. Amartya Sen that this civilization produced argumentative Indians (Sen 2006). Dissent was relished and differences were sought to be resolved and reconciled by reasoned arguments and not by coercion or threat of coercion. Intolerance, rigidity, violence, and

Chapter One

8

authoritarianism are the characteristics of the Taliban, who have created havoc in Pakistan and Afghanistan. It would be nothing less than blasphemy to ascribe these characteristics to the glorious culture of ours that flourished in ancient India. It is to be added that the culture has survived, despite all adversities and onslaughts, only because of its flexibility and adaptability. What is important is the essence and not the form or appearance.

(4) The right to dissent is an important aspect of the freedom of thought and expression. It deserves to be discussed separately with the help of a few important decisions made by the Supreme Court. The first case that I would cite is “S. Rangrajan v P. Jagjiwan Ram.15 This concerned a Tamil film that opposed caste-based reservations. The movie was cleared by the Censor Board for unrestricted public screening. However, its exhibition was not permitted by the state government. The objection was twofold. First, it contended that the theme of the movie was against the policy in which both the union and the state governments believed. Second, it was contended that there was a general resentment (among the public) about the screening of the film and that if this were allowed it would create serious problems in terms of public disturbances. The Supreme Court rejected both these contentions. After all, constitutional protection was needed only for the expression of unpopular views, and not for what was in agreement with the government’s policy or what was favored by the views and tastes of the people. Minorities needed government protection, and it was the government’s duty to offer that against all odds. While Rangrajan is a case where dissent was voiced on an issue of social and political policy, “S. Khushboo v. Kanniammal”16 was a case of moral dissent. The appellant had been interviewed by a weekly magazine, and her response was interpreted as an advocacy of premarital sex for girls. The matter was politicized and several criminal cases were registered against her in different parts of the country. She felt harassed and sought relief first in the High Court. On not succeeding there, she approached the Supreme Court. A three-judge Bench allowed the appeal. The Court made it clear that even if the allegations were correct, no case could be made. However, the decision was delivered on constitutional grounds. Rangrajan was relied upon in order to assert that there was a right to dissent, 15 16

(1982) 2 SCC 574. (2010) 5 SCC 600.

Value Absorption and Social Practices

9

including dissent on moral issues. B.S. Chauhan, J., who delivered the judgment at the Court, said that unpopular views needed to be countered by advocating the opposite viewpoint and should not be suppressed. The Constitution contemplates vigorous debate and dialog on controversial issues on which opinion is divided. Indeed, it is this debate and dialog which educates people. By entering into a debate, the debaters themselves learn a lot. Though dissent can be of many varieties—political, moral, and social—political dissent obviously occupies the most prominent place in a democracy. Along the patterns of the British Parliament, we recognize not only the ruling party but also the opposition. In other words, we accept the proposition that the acceptance of the opposition is a normal feature of democracy. But this does not comport easily with Section 124-A of the Indian Penal Code (IPC), which assumes a monarch-like ruler, against whose rule well-intentioned subjects can voice their criticism with a view to suggesting some reform. On the other hand, in a democracy, the opposition is there to take advantage of every slip and flaw in government policy with a view to discrediting it. The opposition, then, is perpetually ready to replace the government. The government often has to concede to the opposition if it wants cooperation in conducting its legislative business. Therefore, the retention of Section 124-A does not credit the political leaders and their commitment to democracy, nor does it credit the Law Ministry and the Law Commission, which constantly talk of and plan for all kinds of reforms. One of the most unfortunate situations was that of Chief Justice B.P. Sinha, who headed the Supreme Court Constitution Bench that validated the constitutionality of the Section in “Kedarnath Singh v. State of Bihar.”17 I will discuss, in detail, the legal and constitutional infirmities of the decision below. However, in order to understand the total incongruity of Section 124-A in the political system of independent India, one has to note that the provision is deeply embedded in the political history of the country, since a time when India was trying to free itself from the yoke of slavery. The Section maintains that the offense of sedition is committed when making a speech that “brings or attempts to bring into hatred, or excites or attempts to excite disaffection toward the government established by the law in India.” Bal Gangadhar Tilak was convicted under Section 124-A for his alleged seditious writings and sentenced to lifetime transportation. I do not have to remind the reader that it was he who said, “freedom is our birth right and we shall have it.” After attaining that freedom, we have now established a sovereign democratic republic, 17

AIR 1962 sc 955.

10

Chapter One

wherein an offense like sedition, defined in Section 124-A, should be anathema. Here, we can take some lessons from the political and constitutional history of the United States. During the term of the Federalist President Adams, the American Congress enacted what is known as the Anti-Sedition Law at the turn of the 18th century. People convicted under the law were pardoned by the next President, Jefferson, who ordered a refund of the fines paid. Ultimately, in “New York Times Co. v. Sullivan,”18 the American Supreme Court noted that the offense of sedition could not coexist with the guarantee of free expression under the First Amendment of the United States Constitution. The Court, speaking through Brennan, J., also said that in a thriving democracy, criticisms and comments should be biting and sharp, and debate should be vigorous and robust. It is also the law that the government or any other public authority cannot sue for defamation.19 Individual functionaries can do so, however, but they have to prove that the statement or comment to which they have taken exception was made either in the knowledge that it was false or without taking care to establish whether it was true or false. In “Rajgopal v. State of Tamil Nadu,”20 this was accepted as part of our laws as well. However, it had to keep company with a strange companion—the offense of sedition as defined in Section 124-A of the IPC. Section 124-A was inserted into the IPC in the year 1870. It is in Chapter VI and is an offense against the state. As pointed out above, creating a feeling of contempt, hatred, or disaffection toward the government is punishable according to the law. Disaffection is further defined to include disloyalty and a feeling of enmity. The offense has origins in common law and law that existed earlier. Any affront to the Crown and other dignitaries of the state could amount to sedition. However, in England, it has not been difficult for the judge-made law to change its meaning and tenor in a way that befits a democratic age. Our statutory laws and the First Press Commission quite correctly recommended its repeal. Earlier in the “Nihrendu Mazumdar v. King-Emperor”21 case, the Federal Court of India had tried to interpret the Section so as to imply that the objectionable speech should be intended to cause some disorder, and mere generation of a feeling of disaffection or disloyalty was not enough. But the attempt was thwarted by the Privy Council in its decision

18

376 US 254 (1964). See Derbyshire County Council v. Times Newspapers 1993 (2) W.L.R. 449 (H.L.). 20 (1994) 6 SCC 632. 21 (1942) FCR 38. 19

Value Absorption and Social Practices

11

in the “King-Emperor v. Sadashiv Narayan”22 case with the observation that a statute had to be interpreted in terms of its language and not with the help of ideas and notions imported from outside. In addition, as far as the literal meaning of the Section was concerned, in order to make someone liable, it was enough that the speech created a feeling of ill will or enmity against the government. That was what was held in the Tilak23 case by the Bombay High Court, and the Privy Council accepted that interpretation as being correct all along. The details mentioned above provide the background against which the Constitution Bench of the Supreme Court was called upon to determine whether Section 124-A was in conformity with Article 19(1)(a), read with Clause (2) of the Article. It may again be pointed out here that Article 19(1)(a) guarantees every citizen the Right to Freedom of Speech and Expression, and under Clause (2) imposes reasonable restrictions, among other things in the interest of public order. The Bench referred to the divergent views of the Federal Court and the Privy Council with regard to the meaning of Section 124-A. It also referred to the proposition that out of the two conflicting meanings given to the provision of law, the Court should accept the one which could make it constitutionally valid rather than the opposite. Naturally enough, the Constitution Bench held that Section 124-A was constitutionally valid and carried the meaning given to it by the Federal Court in the “Nihrendu Mazumdar” case. The only connection which the Bench could find between the language of Section 124-A and an overt act of disorder was the speech’s tendency to produce that result. This would mean that any criticism or attack—through the use of strong language—on the government’s policy could result in prosecution for sedition. Kedarnath himself had been punished for using intemperate language. The Bench had avoided getting into the question by offering the lame excuse that no arguments had been addressed on the merits. All this was in direct conflict with the observations made in the Rajgopal case. The case stated that there should be a vigorous and robust debate on political questions, and comments should be sharp and biting. Indian democracy itself was being practiced in the above manner, wherein the debates were robust and the comments sharp. In other words, the facts of real life have gone much beyond what a formal reading of Kedarnath would suggest. In other words, Section 124-A of the IPC and the decision in Kedarnath Singh’s case uphold pure anachronisms and deserve to be consigned to the dustbins of history. 22 23

74 I.A. 89 (1947) Q.E.V. Bal Gangadhar Tilak (1898) 22 Bom 112.

12

Chapter One

(5) This short and, in a way, selective survey suggests that the value and the culture of democracy have taken firm root in India. However, the paradox is that freedom of speech, the main component of a democratic culture, does not appear to be very strongly entrenched outside the circle of professional politicians. Electoral democracy is good, but it is not enough. This is the age of deliberative democracy and every citizen has the right to political participation, not necessarily by entering into electoral politics. By all means, political speech is important, but social and moral freedom is essential; and freedom of social and moral dissent is equally significant. Authors and artists have their own rights to freedom of expression. In all these fields, we are currently far behind expectations. The reasons for this appear to be our social values that have not yet changed. Most of all, it must be admitted that we are too slow to imbibe the habit of tolerance, and that is at the root of everything else.

References Austin, Granville. 1972. The Indian Constitution: Cornerstone of a Nation. Bombay: Oxford University Press. Friedmann, W. 1967. Legal Theory. New Delhi: Universal Law Publishing. Rai, Udai Raj. 2011. Fundamental Rights and Their Enforcement. New Delhi: PHI Learning Pvt. Ltd. Sen, Amartya. 2005. The Argumentative Indian. London: Penguin Books.

CHAPTER TWO LAW, MORALITY, AND RELIGION IN THE COURTS IN ENGLAND AND WALES IN THE 21ST CENTURY NOEL COX

Introduction The relationship between law and society is inherently influenced by the society in which the law operates. It is a product of that society irrespective of whether the law is a natural law, legal positivism, or realist perspective. It is important to consider the attitude of the legal system in the light of the dominant or prevailing cultural environment. In this context, any change in this environmental background, such as changing demographics, can cause tensions between law and society. One example, of the many possible here, is the changing attitude of the courts in England and Wales toward religion. “The law holds a neutral view toward religious belief,” said the President of the Family Division of the High Court of England and Wales, in a keynote address at the first annual conference of the Law Society’s Family Law section, in 2014. On the theme “The Sacred and the Secular,” the Right Honorable Sir James Munby said that the courts and society as a whole face “enormous challenges” in today’s largely secular and religiously pluralistic society. In this context, Lord Justice Munby stressed the secular nature of the judges’ jobs. We live in a society which on many of the medical, social and religious topics that the courts recently have to grapple with, no longer speaks with one voice. These are topics on which men and women of different faiths or no faith at all hold starkly different views. All of these views are entitled to greatest respect, but it is not for a judge to choose between them.

14

Chapter Two

Although historically, the country has an established Christian church, Munby insisted that judges sit as “secular judges serving a multicultural community of many faiths sworn to do justice to all manner of people.” “We live in this country, in a democratic and pluralistic society, in a secular state, not a theocracy,” he said, in which judges have long since “abandoned their pretensions to be the guardians of public morality.” This view of the relationship between law and religion is one which is open to challenges, at least in parts. Indeed, it comes close to conflating the linked yet distinct concepts of the individual freedom of religion, the separation of the church and the state, and the underlying Christian basis of much of the law (Cox 2012b) in the undoubted rise of secularism, in a society which now has only a nominal Christian majority. This chapter considers the role of religion in law. It commences with a brief comment on the rise of secularism and the absence of an underlining Grundnorm.

The Rise of Secularism One of the aspects of 21st-century culture which is most remarkable is the intellectual dominance of secularism (Cox 2012a). Society is undergoing—in the West, at least—a rapid and seemingly irreversible secularization. This evolution has not been without its effects on the constitution of states, despite the oft-quoted principle of the separation of the church and the state (Smith 2008). A state is not without some elements of an ethos, or an underlying philosophical or moral identity (Cox 2012b). However, a widespread disillusionment with the liberal democratic models of government, with capitalism and with materialism (Taylor-Gooby 1991), has left the state in many societies unable to provide a degree of conceptual unity of focus, which it might be expected to do. This has been worsened by declining homogeneity and increased political, social, cultural, and economic polarization and marginalization. Increased diversity in a pluralist society is said to bring strength (Bohman 2006), but it may not be able to do so if this means there is little or no common identity with the state. Only when diversity becomes the underlying principle of the state, as arguably it has been in several countries, including the United Kingdom and the United States of America, can it strengthen. However, there is already something that provides legal and societal cohesion—the law. In addition, the law in our Western, democratic, and liberal society has undoubted and marked Christian influences and

Law, Morality, and Religion in the Courts in England and Wales

15

themes. Though it may be true that society itself no longer speaks with one voice, if indeed it ever did, that is not to say that the courts, as the interpreters and developers of the law, should not do so. Something must maintain state cohesion, even if this is merely brute force. Some states are more homogenous than others are, and the unifying elements vary. In the case of the ancient Austrian empire, it was the rule of the Hapsburgs, a dynasty, rather than social, religious, or racial unity. However, brute force is inadequate in the longer term and it will scarcely suffice today as even a temporary expedient (Al Namlah 1992). Therefore, we must search for some other element of conceptual unity. This could be a person or institution, or an abstract philosophical or religious ideology. Having a common law based, at least in part, on Christian principles does not make the state a theocracy (there has never been a theocracy in the British Isles). It does us no good to deny that the law does in fact have strong Christian principles behind it—the matrimonial and succession laws were developed in ecclesiastical and not in secular courts until the mid-19th century. Their underlying principles remain largely unchanged today. The rise of institutional pluralism and systematic moral relativism is a pernicious development that has—it is suggested—sapped much of the vitality of European society in the past century.

Christianity as a Basis of the Law in the West We saw some of the thinking underlying this admittedly bold claim reflected in the Regensburg Lecture delivered on September 12, 2006 by Pope Benedict XVI, at the University of Regensburg in Germany. The lecture, entitled “Faith, Reason, and the University—Memories and Reflections,” 1 is considered to be among the most important papal statements on world affairs since Pope John Paul II’s 1995 address to the United Nations. It sparked international reactions and controversies. Key to this was Benedict’s assertion that conversations between Christianity and Islam could no longer avoid substantial, more difficult questions: most notably, how Christianity and Islam understand God’s nature. At Regensburg, the Pope reminded us that it mattered whether God was essentially Logos (Divine Reason) or Voluntas (Pure Will). In his thesis, the first understanding facilitates civilizational development, true freedom, and a complete comprehension of reasons. The second sows 1

In German, “Glaube, Vernunft und Universität — Erinnerungen und Reflexionen.” See www.vatican.va/holy_father/benedict_xvi/speeches/2006/september/documents/hf _ben-xvi_spe_20060912_university-regensburg_en.html.

16

Chapter Two

the seeds of decline, oppression, and unreason. Whether this is wholly or even partially correct is not for discussion here, but it does reflect the extent to which popular and intellectual discourse have diverged from traditional channels. Above all, perhaps, Regensburg provoked the West to look itself in the mirror and consider whether some of its inner demons reflected the fact that it, like the Islamic world, was undergoing an inner crisis: one which was reducing the Christian faith to subjective opinion, natural reason to the merely measurable, and love to sentimental humanitarianism. The West, Benedict suggested, was in the process of closing its own mind. It is not surprising that such arguments attracted an emotional response, but that is not to suggest that the response did not have, at the very least, an element of truth in it. In Benedict’s view, it is precisely the Christian understanding of God as Logos that opens our minds to our full potential. This theme was developed by Benedict two years after Regensburg, in a lecture that largely escaped popular notice. This time in Paris, the Pope argued that quaerere Deum (the search for God)—and not just any God, but the God who incarnates reason itself—was the indispensable element that allowed European culture to attain its heights of learning.2 However, attempts to acknowledge the Christian heritage of Europe have tended to fail. Discussions over the draft texts of the European Constitution and later the Treaty of Lisbon have included proposals to mention Christianity and/or God in the preamble of the text. This call has been supported by Christian religious leaders and some political leaders. However, the explicit inclusion of a link to the religion faced opposition from secularists, and the final Constitution referred to Europe’s “Religious and Humanist inheritance.” A second attempt to include Christianity in the Treaty was undertaken in 2007 with the drafting of the Treaty of Lisbon, but this was equally unsuccessful. Some states exercise a greater claim than others to possession of an underlying moral or philosophical principle. This is easier to identify in smaller, especially non-pluralist societies, or where a single religion dominates, for instance in some of the smaller Islamic countries where there is a high degree of religious, tribal, racial, and cultural homogeneity. However, the common modern adherence to the concept of pluralism renders such ideals not merely unattainable but apparently undesirable for Western liberal democracies. It is perhaps easier to achieve when the focus is on an individual or institution than when it is on an ideology. The 2 www.vatican.va/holy_father/benedict_xvi/speeches/2008/september/documents/ hf_ben-xvi_spe_20080912_parigi-cultura_en.html.

Law, Morality, and Religion in the Courts in England and Wales

17

aphorism that “Christianity is part of the common law of England” is mere rhetoric, at least since the decision of the House of Lords in the case of “Bowman v. Secular Society Limited” (1917) AC 406. It has been impossible to contend that it is the law in England and Wales today, subject to the qualification that the Church of England is established in England. However, that does not mean that the law itself is amoral or not based on Christian principles, or that conformity with those principles is not possible or desirable today, in an increasingly secularized and multicultural society. We may question whether there need be a state ethos or culture at all, or whether there is such a thing. Yet, when we consider the origins of and the justification for the state, it will be seen that a philosophical element is necessary, even if it is mere utilitarianism. The state exists because it is necessary, and the people and the state exist in a condition of mutual dependency. Thus, there is a need for an underlying ideology of some form, however broad. The laws of England were once seen to embody— however imperfectly—such an underlying principle, but we are told that this is no longer so. If the Constitution is seen as rules and procedures through which a state is governed then, to understand the Constitution, it is first necessary to consider the nature of the state. The Constitution may be seen as the result of a formal process of development or adoption, or it may be the result of evolutionary or revolutionary development (and in many cases, a combination of the three). However, the form and content of the Constitution will vary considerably due to the internal and external influences which have shaped it, including the specific history, politics, culture, geography, and so on, of the country concerned. The nature of the state itself is perhaps seen more readily as being generic. This is, in part, a simpler or a less multifaceted concept because it is an artificial product of the evolution of international law—albeit a concept which may have much to commend it in principle. Since the development of the modern nation, the concept of the state has dominated international law. However, it has always been present in one form or another, since the development of the first city-states, tribal federations, and complex social alliances of this nature (Finley 1984; Keith 1984). The modern state evolved in Europe in the wake of the fall of the classical world, under the impetus of the Crusades against Islamic aggressions in Europe and to recover the Holy Land in Palestine (Weiss and Mahoney 2004). It gained encouragement from the growth of trade and commerce, and from the rediscovery of Roman laws and classical learning in the years after the collapse of the Eastern Empire

18

Chapter Two

headquartered at Constantinople (Stewart 1947). Following the advent of the modern nation-state, political and legal theory tended to exalt the state as the pinnacle of authority—though this was disputed both by the church (Cardinale 1976; Ullmann 1965) and, at times, by mesne feudal lords, burghers, and other communities. During what might be termed the classical period of statehood—from the Treaty of Westphalia (1648) to the Treaty of Versailles (1919)—the study of politics tended to center on the state. However, for much of the 20th century, it focused on political behavior and policy-making, with government decisions explained as responses to societal forces. In part, this has been due to a growth in the awareness of the limitations of studies based on political events, which might themselves be the products of underlying stresses and dynamics. It also suited the increased emphasis in most Western debates on countries outside Europe and North America and those countries within their direct and indirect spheres of influence. However, the state is not dead. In recent decades, state-centered theorists have sought to bring the state back into the forefront of research, arguing that it is more autonomous than the society-centered theorists (such as the neoliberals) (Goldfinch 2003) have suggested. They have argued that the state is indeed an independent player with interests of its own. It is independent of those who are a part of the state leadership. The recent growth of a “new institutionalism” has placed the state at the very center of political science, ironically at a time when the state has arguably become less involved in society (Kelsey 1993)—at least in many countries of the industrialized world, due to their economic liberalization. The traditional understanding of public law (and more especially, the more narrowly defined constitutional law) emphasized particular ideas of power that were associated with territory, sovereignty, and law. These are concepts about which there is often uncertainty, though some legal systems tend to imply a form of permanence even akin to Platonic forms (Plato 2000; Dancy 2004). The ideas of state and state power expressed through law, however, remain central to understanding the government (Morison 2003). The Constitution is more than a mere document and more than the rules of law (though both of these constitute a part of the Constitution). The heart of the Constitution is a warm, beating organ; not a dry, ossified, or macerated relic. This beating heart sets the tone for the country as a whole and is influenced in its turn, by the society of that country. It not only enhances identity but helps to give legitimacy to what might otherwise be little more than a mere set of amoral and ahistorical rules. It is manifested in the daily operations of the courts.

Law, Morality, and Religion in the Courts in England and Wales

19

Does this mean that there must inherently be core values in a state to ensure structural integrity and cohesion? Perhaps it does. Is it appropriate for judges to deny these core values, if indeed they exist? Arguably not, though they may be personally uncomfortable with following a moral code that they do not adhere to as individuals and there may indeed be no sanctions for acting so.

Legitimacy and the Constitutional Order Recognizing the Christian basis of the law in Western Europe is important, as it provides legitimacy to it. This may seem perverse if we emphasize that society in the West is diverse and multicultural, with only a minority adhering to Christianity. However, statistics show that a majority are still Christian—over 70% in 2012 (European Commission 2012)— although religious belief was weaker in the United Kingdom than in a number of Western European countries. This underlying religious belief means that whatever the relationship between the church and the state may be in an individual country, it is not necessarily inappropriate to acknowledge—and even celebrate—the Christian origins of much of our law. Nor has this necessarily offended the non-Christians. Jewish and Muslim leaders have often commented that they prefer a state to have religious elements within its laws than to be driven solely by amoral or purely Humanist principles. This faith-based law provides an element of legitimacy that a purely positivist law, based on Humanist principles—or none at all—cannot offer. Legitimacy is a more supple and inclusive idea than sovereignty or continuity (Barker 1990, 4). For a general discussion on the aspects of legitimacy in relation to the Crown, please refer to Brookfield (1972; 1999). Legitimacy offers reasons why a given state deserves the allegiance of its members. Max Weber identifies three bases for this authority— traditions and customs, legal-rational procedures (such as voting), and individual charisma (Collins 1986). Combinations of these can be found in most political systems. With the dominance of democratic concepts of governance, it might be thought that if people believe that an institution is appropriate, then it is legitimate (Tarifa 1997). However, this scheme omits substantive questions about the justice of the state and the protection it offers the individuals who belong to it (Al Namlah 1992). It is generally more usual to maintain that a state’s legitimacy depends upon it upholding certain human rights (Rawls 1993; Honderich 1995, 477; Swanson 1995).

20

Chapter Two

Currently, there are three prevalent alternative definitions of legitimacy. The first involves the capacity of the system to engender and maintain the belief that the existing political institutions are the most appropriate ones for the society (Lipset 1960, 77). Second, in the tradition of Weber, legitimacy has been defined as “the degree to which institutions are valued for themselves and considered right and proper” (Lipset 1964, 386). Third, political legitimacy may be defined as the degree of public perception that a regime is morally proper for a society (Merelmen 1966). All these definitions are based on beliefs or opinions, unlike the older traditional definitions, which revolved around the element of law or rights—in an extreme form, the divine rights of kings (Figgis 1914). These traditional concepts of legitimacy, and the newer ones, are built upon foundations external to and independent of the mere assertions or opinions of the claimant (Schaar 1984, 108; Waskan 1998). These normative or legal definitions include the laws of inheritance and the laws of logic. Sources for these include immemorial custom, divine law, the law of nature, or a Constitution (Arendt 1958, 83). They are not merely based in public opinion. Legitimacy is sought through the advancement and acceptance of a political formula, a metaphysical or an ideological formula that justifies the existing exercise or proposed possession of power by rulers, as the logical and necessary consequence of the beliefs of the people over whom the power is exercised (Tarifa 1997). Just what this formula is depends on the history and composition of a country. In modern democratic societies, popular elections confer legitimacy upon governments. However, legitimacy can also be independent of the mere assertion or opinion of the claimant. This has been particularly important in the late 20th-century discussion of indigenous rights (Lauterpacht 1997). The emphasis of modern rights law on individual rights has—perhaps perversely—not worked to the advantage of Christianity, as the individual rights of freedom of religious belief and expression have been interpreted by the courts—both in the United Kingdom and in Europe—in a very individualistic manner.

The Challenge to Legitimacy in a Post-Christian, Pluralistic, and Moral Relativistic Society The extent to which contemporary democratic political systems are legitimate depends, in large measure, upon the ways in which key issues that historically divided society have been resolved. Not only can regimes gain legitimacy, but they can also lose it (Brookfield 1985, 5). The threat

Law, Morality, and Religion in the Courts in England and Wales

21

to Western society from the prevailing emphasis on diversity, relativism, and individual rights trumping collective rights and responsibilities, however, should not be underestimated. If a regime is both legitimate and effective—in the sense of achieving constant economic growth—it will be a stable political system. From a short-range point of view, a highly effective but illegitimate system is more unstable than regimes which are relatively low in effectiveness and high in legitimacy. The principle of popular sovereignty, hitherto vague, has acquired sufficient determinacy to serve, in a limited range of circumstances, as a basis for the denial of legal recognition to putative governments (Roth 1996). Prolonged effectiveness can give legitimacy (Lipset 1984, 92). Yet, legitimacy cannot be determined solely by majoritarian principles alone, though democratic states tend to emphasize this aspect of their authority (Passerin d’Entrèves 1967, 141). In normal times, it may be hard to distinguish feelings about legitimacy from routine acquiescence. However, it has often been said that legitimate authority is declining in the modern state, and all modern states are well advanced along a path toward a crisis of legitimacy (Tarifa 1997). Obedience looks more like a matter of lingering habit, expediency, or necessity, but no longer a matter of reason and principle, or of deepest sentiment and conviction (Schaar 1984, 104–106). In the long term, if the established order does not sufficiently fulfill the aspirations of the population, the legitimacy of that order may, in turn, come into question. It is possible that it may never have been accorded (Jackson 1991, 19; Wilson 1997; Booth 1998) and so may be in danger of being overthrown (Brookfield 1985, 5). The crisis of legitimacy occurs during the transition to a new social structure if the status of major established institutions is threatened during the period of ushering in structural change, or if all major groups in society do not have access to the political system in the transitional period, or, at least, as soon as they develop political demands (Lipset 1984, 88–90). These transitional periods occur, for example, when decolonization takes place without a nationalist struggle and where interstate conflict is absent. In other words, they happen when colonial powers freely confer independence upon their colonies (Collins 1986). They can also occur when the hitherto prevailing societal and legal norms are discarded deliberately or through ignorance, or even inaction. A serious challenge to continued legitimacy comes from the changing popular perceptions of the government. A regime which was once legitimate, based on popular perceptions that it was the proper government for that country, could potentially become illegitimate. This could be

Chapter Two

22

because it ceases to follow the principles of the rule of law or otherwise departs from accepted conduct. The German government after 1933, while still adhering to the legal form, departed from the accepted standards of behavior and so lost its legitimacy. It might be because doubts arise over the suitability or appropriateness of a particular form of government. This could perhaps occur in Australia, were a second republican referendum enjoy popular majority yet fail to achieve the necessary overall majority. It could also occur in Scotland, were a second referendum to see independence secure a large proportion of the total vote, yet fail to achieve a majority. In these cases, however, dissatisfaction would lead to legal change, not violent change. Only if justifiable attempts at change were unjustly blocked would more extreme measures be justified (Strickland 1994, 56–79). As Munby observed: These are topics on which men and women of different faiths or no faith at all hold starkly different views. All of these views are entitled to the greatest respect, but it is not for a judge to choose between them.

This is true. But where a choice must be made, it is better for it to be based in consistency with the principles of stare decisis upon which common law is built, and upon a line of cases imbued with a Christian consciousness and ethos, than not. Consistency in law is important, and where this consistency is based on a coherent approach and a systematic and moral code or principle, this must be logically preferred to an entirely amoral or even immoral approach. Men and women are not to be reduced to the status of mere machines; they are living spiritual beings entitled to be treated as individuals and as part of a long-flowing river of life. In the West, this underlying ethos is Christianity. Elsewhere, it has other complexions.

Legal Positivism and Natural Law The basis of law matters, because even though we may argue over the different conceptual models, a system will require a conceptual underpinning. Not all of these philosophical models, however, are equally amenable to the recognition of a Christian or religious basis to the law. In the tradition of natural law, especially as understood in the 17th century, the law was the true sovereign. With the Reformation, a fuller theory of sovereignty became possible because of the vast increase in the powers and activities of the legislature. Later, and especially after the

Law, Morality, and Religion in the Courts in England and Wales

23

Enlightenment, judges, as the professors of law, claimed supreme authority. Had this been admitted, they would have been the ultimate authority in the state (Figgis 1914, 230) as is the case in the United States, where the Supreme Court is the final arbiter of the law. However, in such a model, the recognition of an underlying ethos to the law is conceivable, if not mandatory. Legal positivism, particularly as described by Austin (1995; 1873), asserts the dominance of the sovereign authority—the state. From Holmes’ American vantage point, the decisions of the courts are the final sources of the law (Holmes 1963). For natural law adherents, the law is always preeminent; basic human goods, such as human life, are self-evident and intrinsically worthwhile (Finnis 1980). Hart’s The Concept of Law (1961) contains a critique of John Austin’s theory that law is the command of the sovereign backed by the threat of punishment. He also distinguished between primary and secondary legal rules, where a primary rule governed conduct and a secondary rule allowed the creation, alteration, or extinction of primary rules. A distinction was also made between the internal and external points of view of law and rules, close to and influenced by Max Weber’s distinction between the sociological and legal perspectives of law (Weber 1994). He also criticized the idea of the rule of recognition, a social rule that differentiated between those norms that had the authority of law and those that did not. Hart viewed the concept of the rule of recognition as an evolution from Kelsen’s Grundnorm (1945). Hart rejected two distinctive features of Kelsen’s positivism: the idea that law necessarily required sanctions and the neo-Kantian idea that a normative social phenomenon could not be explained purely in terms of social facts. Raz (1970) has been important in continuing Hart’s arguments of legal positivism since the latter’s death. Raz’s most recent work dealt less with the legal theory and more with the political philosophy and practical reasoning. In political philosophy, Raz has been a proponent of a perfectionist liberalism. Dworkin disagreed with Hart and Raz’s legal positivism. He set forth the fullest statement of his critique in his book, Law’s Empire (1986). Dworkin’s theory is described as “interpretive.” According to this theory, the law is whatever follows from a constructive interpretation of the institutional history of the legal system. In order to discover and apply these principles, the courts interpret the legal information that is available to them, in the form of legislation and judgments. They develop an

24

Chapter Two

interpretation which best explains the court’s opinion and justifies past legal practice. Out of the idea that law is “interpretive,” Dworkin argues that in every situation where people’s legal rights are controversial, the best interpretation involves the right answer thesis. Dworkin opposes the notion that judges have such discretion in difficult cases. Dworkin’s model of legal principles is also connected with Hart’s notion of the rule of recognition. Dworkin rejects Hart’s concept of a master rule in every legal system that identifies valid laws that are uncontroversial, whereas (Dworkin argues) people have legal rights even in cases where the correct legal outcome is open to reasonable dispute. While Dworkin moves away from positivism’s separation of law and morality, his concept suggests that the two are related in an epistemic rather than an ontological sense, as posited by traditional natural law. To the positivist, legal validity has no essential connection with morality or justice (Fuller 1964); and the positivist law is a changeable law, which is neither immutable nor immanent. Similarly, in the legal realism school—popular in the United States of America and Scandinavia— all law is made by mankind and is, therefore, inherently flawed. Legal realism emphasizes the indeterminacy of law and legal instrumentalism (Ross 1958). In these models, the existence of a moral or religious underpinning of the law is not essential, and may indeed be unhelpful. This does not mean, however, that there is in fact no such ethos or Grundnorm. Interpretivism, which is a via media between natural law and legal positivism, argues that law is not a set of given data. It is the construction of the lawyer. There is, therefore, no separation between law and morality, although there are distinctions between the two, as the law may be moral, immoral, or amoral. The law is not immanent in nature, nor do principles of law exist outside the legal system itself (Dworkin 1986). In this model of the law, there is no room for natural law. Fuller’s The Morality of the Law sees the inner morality of law as a “model of law as a body of general, clear, stable, and proscriptive rules, capable of obedience, and faithfully applied by judges and other public officers” (1964, 61). Irrespective of the view of law preferred, certain approaches find greater favor in some states than in others. We see how this can be practically applied when we consider the political and legal discourse preceding the civil wars in 17th-century England, and indeed in the period up until the so-called Glorious Revolution in 1688. This latter event involved the deposition of a king whose religious and political policies

Law, Morality, and Religion in the Courts in England and Wales

25

were anathema to the political elite (and to many, if not the majority, of his subjects) and the victory of parliamentary government, ostensibly in the name of the ancient laws and liberties of the land. Each of these philosophical models of legal systems is likely to contain an element of truth. Each allows, to some degree, the recognition or the necessity of a system of underlying moral or religious coherence. Pluralism does not necessarily exclude it. There was never a time when— to paraphrase Lord Justice Munby—”on many of the medical, social and religious topics that the courts recently have to grapple with, [we speak] with one voice.” The role of the courts and individual judges was not to identify individual views and form an opinion of the majority or universally accepted position. It was rather to identify the true position of common law in a manner that was bereft of the influence of any personal favor or belief. That is not to say that the common law is or was uninfluenced by changes in societal attitudes. However, it cannot be unduly influenced by what may be short-term social attitudes and insufficiently alert to the long heritage of the law that has changed and evolved over a thousand years. Whether a church is established or not is immaterial; whether the law continues to recognize Christianity or another religion as one of the key elements in its structure and approach is what needs to be asked. The fundamental change inherent in proceeding from a positive to a negative answer to this question is not something that will happen overnight— except perhaps, in the case of revolutions—nor can it be achieved by the actions of individuals, however exalted their status in the legal system.

Conclusion The relationship of the church and the state is a matter which touches the very core of the society in Christian, post-Christian, and semi-Christian countries. It is a relationship which illuminates and helps define the nature of a country, even (and perhaps especially) for the one which may be categorized as containing a pluralistic society. There is an important contemporary debate over the question—conceptually if not necessarily always practically important—of whether the Western states are fundamentally Christian or post-Christian (or even non-Christian). This debate has been marked, generally speaking, by a comparatively cursory consideration of the history of the church or of the relationship between the church and the state, or of the informal or normative influence of the church upon the state.

26

Chapter Two

The law, in many respects, historically favored religion in general and Christianity in particular, as against agnosticism and atheism (Richardson 1962, 61), though this favoritism may be said to be in decline (note, however, that in 2007, attempts were made in Thailand to include a declaration in the draft Constitution that the state religion was Buddhism). Until the mid-19th century, the Church of England retained a formal role with respect to the legal regulation of marriage (until the Matrimonial Causes Act 1857 (20 & 21 Vict. c. 85) (U.K.)). In Ireland, ecclesiastical courts lost their matrimonial jurisdiction only under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870 (33 & 34 Vict. c. 110) (U.K.), and the jurisdiction survived until 1884 in the Isle of Man; the Diocese of the Bishop of Sodor and the Man Ecclesiastical Judicature Transfer Act 1884 (Statutes, vol. V, 352–73) (Isle of Man). The Church of England retained a formal role with respect to divorce until the Matrimonial Causes Act 1857 (20 & 21 Vict. c. 85) (U.K.) and Succession to Property Act (until the Court of Probate Act 1857) (20 & 21 Vict. c. 77) (U.K.). The Poor (Burials) Act 1855 (18 & 19 Vict. c. 79) (U.K.) had the same effect in Ireland on succession to property. In earlier centuries, its jurisdiction was much broader. By the end of the 19th century, the scope of ecclesiastical influence on secular government had greatly diminished in the Christian world, though it retained a strong informal role. Being largely informal, it was also subject to uncertainty and to subtle changes without overt paradigm shifts. Today, we are told that secular judges cannot and should not make a distinction (in law) based on religious principles. Technically, this is true, for a secular judge does not have jurisdiction over matters of the doctrine or liturgy of the Christian church or over any other religious questions. However, this has been true since the churches—secular and ecclesiastical—separated in England in the 12th century. What is different now is that it has been said, in effect, that the law itself has no religious or even moral underpinnings. This cannot be so and is a view that does considerable discredit to common law, especially ironically perhaps, as practiced in the Family Division of the High Court of England and Wales. What has changed with increasing pluralism and reduced adherence to organized religion, especially Christianity, is that the judges are less able and willing to openly acknowledge the Christian origins of much of the law, or indeed its moral content. This may lead, inexorably, to a weakening of the consistency, the morality, and even the humanity of the law in search of the Universalist lowest common denominator.

Law, Morality, and Religion in the Courts in England and Wales

27

References Al Namlah, Saleh. 1992. “Political Legitimacy in Libya since 1969.” PhD thesis, Syracuse University. Arendt, Hannah. 1992. “What Was Authority?” In Authority, edited by Karl Friedrich, 81–112. Cambridge, MA: Harvard University Press. Austin, John. 1873. Lectures on Jurisprudence, or The Philosophy of Positive Law, edited by Robert Campbell. 4th edition, rev’d. London: John Murray. —. 1962. Sense and Sensibilia, edited by Geoffrey Warnock. Oxford: Clarendon Press. —. 1995. The Province of Jurisprudence Determined, edited by Wilfrid Rumble. Cambridge: Cambridge University Press. Barker, Rodney. 1990. Political Legitimacy and the State. Oxford: Clarendon Press. Bohman, James. 2006. “Deliberative Democracy and the Epistemic Benefits of Diversity.” Episteme: A Journal of Social Epistemology, 3(3): 175–191. Booth, Ken. 1998. “A Pakeha Perspective on Te Tino Rangatiratanga.” In Church and State: Te Tino Rangatiratanga, edited by Janet Crawford, 1–36. Auckland: College of St. John the Evangelist. Brookfield, Frederic (Jock). 1972. “Some Aspects of the Necessity Principle in Constitutional Law.” DPhil thesis, University of Oxford. —. 1985. The Constitution in 1985: The Search for Legitimacy. Auckland: University of Auckland. —. 1999. Waitangi and Indigenous Rights: Revolution, Law and Legitimation. Auckland: Auckland University Press. Cardinale, Hyginus. 1976. The Holy See and the International Order. Toronto: Smythe. Collins, Randall. 1986. Weberian Sociological Theory. Cambridge: Cambridge University Press. Cox, Noel. 2012a. “Religious Tolerance, the News Media and Respect for the Theist.” In Religion and Law, edited by Nick Spencer, 71–78. London: Theos. —. 2012b. Constitutional Paradigms and the Stability of States. Farnham: Ashgate Publishing Ltd. Dancy, Russell. 2004. Plato’s Introduction of Forms. Cambridge: Cambridge University Press. “Discrimination in the EU in 2012.” 2012. Special Eurobarometer, 383, European Commission.

28

Chapter Two

Dworkin, Ronald. 1986. Law’s Empire. Cambridge, MA: Harvard University Press. Figgis, John. 1914. The Theory of the Divine Right of Kings. London: Cambridge University Press. Finley, Moses. 1984. Authority and Legitimacy in the Classical City-State. Copenhagen: Munksgaard. Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Oxford University Press. Fuller, Lon. 1964. The Morality of the Law. New Haven, CT: Yale University Press. Goldfinch, Shaun. 2005. “The State.” In New Zealand Government and Politics, edited by Raymond Miller, 511–520. Melbourne: Oxford University Press. Hart, Herbert Lionel Adolphus. 1961. The Concept of Law. Oxford: Oxford University Press Holmes, Oliver Wendell. 1963. The Common Law, edited by Mark Howe DeWolfe. Cambridge, MA: Belknap Press of Harvard University Press. Honderich, Ted. 1995. The Oxford Companion to Philosophy. Oxford: Oxford University Press. Jackson, Moana. 1991. “Maori Law.” In Mana Tiriti: The Art of Protest and Partnership, edited by Ramari Young, 15–16. Wellington: Haeata Project Waitangi/City Art Gallery/Daphne Brasell Associates Press. Keith, Charles. 1984. “The Origins of Settlement, Agriculture and the City-State in Mesopotamia.” PhD thesis, University of Edinburgh. Kelsen, Hans. 1945. General Theory of Law and State, translated by Anders Wedberg. London: The Lawbook Exchange. Kelsey, Jane. 1993. Rolling Back the State: Privatisation of Power in Aotearoa/New Zealand. Wellington: Bridget Williams Books. Lauterpacht, Elihu. 1997. “Sovereignty.” International Affairs, 73(1): 137–150. Lipset, Seymour. 1960. Political Man: The Social Bases of Politics. London: Doubleday. —. 1984. “Social Conflict, Legitimacy, and Democracy.” In Legitimacy and the State, edited by William Connolly, 88–103. London: Basil Blackwell. Merelmen, Richard. 1966. “Learning and Legitimacy.” American Political Science Review, 60(3): 548–561. Morison, John. 2003. “Modernising Government and the E-Government Revolution: Technologies of Government and Technologies of Democracy.” In Public Law in a Multilayered Constitution, edited by

Law, Morality, and Religion in the Courts in England and Wales

29

Nicholas Bamford and Peter Leyland, 157–188. Oxford: Oxford University Press. Passerin d’Entrèves, Alessandro. 1967. The Notion of the State: An Introduction to Political Theory. Oxford: Clarendon Press. Plato. 1945. The Republic, edited by John Ferrari and translated by Tom Griffith. Cambridge: Cambridge University Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Raz, Joseph. 1970. The Concept of a Legal System: An Introduction to the Theory of Legal System. Oxford: Oxford University Press. Richardson, Sir Ivor. 1962. Religion and the Law. Wellington: Sweet & Maxwell. Ross, Alf. 1958. On Law and Justice. London: The Law Book Exchange. Roth, Brad. 1996. “Governmental Illegitimacy in International Law.” PhD thesis, University of California Berkeley. Schaar, John. 1984. “Legitimacy in the Modern State.” In Legitimacy and the State, edited by William Connolly, 104–133. London: Basil Blackwell. Smith, Charlotte. (2008). “A Very English Affair: Establishment and Human Rights in an Organic Constitution.” In Law and Religion in Theoretical and Historical Context, edited by Peter Cane, Carolyn Evans, and Zoe Robinson, 157–185. Cambridge: Cambridge University Press. Stewart, Cecil. 1947. Byzantine Legacy. London: Allen and Unwin. Strickland, Matthew. 1994. “Against the Lord’s Anointed.” In Law and Government in Medieval England and Normandy, edited by George Garnett and John Hudson, 56–79. Cambridge: Cambridge University Press. Swanson, Matthew. 1995. “The Social Extract Tradition and the Question of Political Legitimacy.” PhD thesis, University of Missouri-Columbia. Tarifa, Fatos. 1997. “The Quest for Legitimacy and the Withering Away of Utopia.” Social Forces, 76(2): 437–473. Taylor-Gooby, Peter. 1991. “Welfare State Regimes and Welfare Citizenship.” Journal of European Social Policy, 1(2): 93–105. Ullmann, Walter. 1965. The Growth of Papal Government in the Middle Ages: A Study in the Ideological Relation of Clerical to Lay Power. 2nd edition. London: Methuen. Waskan, Jonathan. 1998. “De Facto Legitimacy and Popular Will.” Social Theory and Practice, 24(1): 25–56. Weber, Max. 1994. Weber: Political Writings, translated by Peter Lassman and Ronald Speirs. Cambridge: Cambridge University Press.

30

Chapter Two

Weiss, Daniel and Lisa Mahoney (eds.). 2004. France and the Holy Land: Frankish Culture at the End of the Crusades. Baltimore, MD: Johns Hopkins University Press. Wilson, Margaret. 1997. “The Reconfiguration of New Zealand’s Constitutional Institutions: The Transformation of Tino Rangatiratanga into Political Reality.” Waikato Law Review, 5: 17–34.

CHAPTER THREE COMMERCIALIZATION AND GLOBALIZATION OF HIGHER EDUCATION IN INDIA: THE NEED FOR SOCIAL AUDIT SHEELA RAI

Introduction The development of the modern education system in India is an example of how law and state policy affect the norms and values of society. The effect may be good and bad. A modernized education system may pull society out of its social and cultural slumber. On the other hand, a socially disconnected education system may lull the learners into a fictional reality. In such a world, the concept of “Don Quixote learning” becomes a matter of ridicule. Don Quixote is the hero of the classic work of Cervantes. He is influenced by the stories of armored knights. He thinks of himself as one, and imagines situations that are completely different from reality. To him, the bleats of ewes and lambs sound similar to the “neighing steeds, the sound of clarions and the noise of drums,” and the cloud of dust raised by two flocks of sheep resembles the approach of two armies onto the battleground (Cervantes 1605). The story can be viewed from two perspectives. The first perspective tells us about the dangers of reading clouding our assessment of reality. Instead of seeing what is real, we start perceiving reality in terms of what we have read in books. However, Don Quixote has also been interpreted by some critics as a story of the Enlightenment and of a man’s noble aspirations. Let us examine the role of higher education, and the higher education policy of India, in the light of these two viewpoints. The education system of a country is a reflection of the moral and social ethos of that country. On the other hand, it is also a force which brings about changes in the social and ethical perceptions of the country’s citizens. If there is a mismatch, either because the education system lags far behind

32

Chapter Three

general social progress, or because it is far ahead and completely unmindful of the people it is serving, education ceases to have a greater role than simply the training of technicians. Such a scenario may also cause dangerous reactions. Let us examine the interaction between education and society in India using a historical perspective. Education in India has transformed from a social good to a commercial product through the interventions of law and the opening up of an insular society to global influences of the modern age. Modern legislation in education have helped pull Indian society from isolation and indifference, and have heralded the Indian Enlightenment. At the same time, modern legislation has transformed education into a saleable commodity. The second aspect of reforms, if not properly regulated, may once again make education irrelevant for society in the era of globalization. In addition, we may find both, the radical and the reactionary Don Quixotes imposing their imagination on reality.

Education in Ancient and Medieval India: A Social Good Education has occupied an important place in Indian society since ancient times. Brahmins, saints, and yogis were perceived as learned people, and that is why they were placed so high up in the Indian caste and social hierarchy. The naturally rich environment of the country was conducive to the development of learning and culture, which manifested itself in the growth of science, mathematics, astrology, and philosophy, as well as literature and art. Education in ancient India was a sacred function performed in pious spirit by the teacher and understood in the same spirit by the student. According to Manu, a student was not to pay any fees to his teacher before he finished his education. A teacher teaching in exchange for a fee was condemned as an upapatakin (one who has committed a minor offense). The pupil, after completing his education, was to give the teacher such presents as he could afford. Admission to study depended solely upon the pupil’s fitness for it. The role of the teacher was not only to impart knowledge but also to take care of the student’s overall development. An ashram or gurukul emphasized the individual relationship between the teacher and the student. This was one of the main reasons why teaching was orally performed and not widely written down. They emphasized, perhaps rightly, the role of the teacher in an educational system which sought not merely to impart knowledge but also to develop the personality of the pupil, and hence insisted that the teacher, rather than

Commercialization and Globalization of Higher Education in India

33

the books, should be the main source of instruction. (Mukherjee, 1951, 585)

The education system ensured the alignment of learning with the needs of the common man. This enabled the development of a socially responsive legal system. The Buddhist system, however, was a little different. It did not condemn the concept of fees, but it did admit students who could not pay. The students could perform personal services for the teachers in lieu of the fee. The Buddhist viharas required more of community life and were largely economically self-sufficient (Mukherjee 1951, 591). Apart from philosophy and theology, learning included subjects such as economics, the sciences, mathematics, and astronomy (Mukherjee 1951, 585). The story of the medical education of a person named Jivaka in a Buddhist text states that: He studied medicine at Taxila under a “world-renowned physician” for the prescribed period of 7 years. But before he was given the license to practice medicine, he had to undergo a sort of practical examination prescribed by his teacher, who directed: “Take this spade and seek round about Taxila a yojana on every side, and whatever plant you see which is not medicinal, bring it to me.” After a good deal of botanical investigation, Jivaka could not discover any plant that was devoid of medicinal properties. The teacher was satisfied and gave him a little money with leave to go home and practice as physician. (Mukherjee 1951, 588)

The story goes on to describe cases cured by Jivaka, including surgery where he cut through the skin of the belly, drew the twisted intestines out and showed them to his wife; then, after disentangling the twisted intestines, he put them back into their right position, stitched the skin together and anointed the wound with a salve (Mukherjee 1951, 588). However, with invasions and threats of cultural contamination and even annihilation, India became a closed society, with most branches of learning experiencing decline. The effect of the invasions of Sultan Mahmud of Ghazni on indigenous learning is indicated in a statement by the great Muslim scholar, Al-Beruni: Hindu Sciences have retired far away from those parts of the country that have been conquered by us, and have fled to places which our hand cannot yet reach, to Kashmir, Banaras and other places. (quoted in Ghoshal 1957, 513)

Education (Hindu and Islamic) continued to be free during the medieval period as well. The centers for learning were maintained by private and

34

Chapter Three

state endowments (Ghoshal 1957). John Marshall, who visited India in the late 17th century, wrote: Hindus never teach their children for money; those they teach, they give them victuals too, besides their learning which is estimated as a gift. (Marshall 1671, 386)

The infusion of different cultural influences further enriched Indian culture, art, and literature, and helped the country to develop as a pluralistic society by fortifying its tradition of tolerance and capacity for assimilation and adaptation while maintaining and further developing its distinct identity. Although the various centers of learning in medieval India showed an inherent liking of Indians for education, there was no doubt that India had been cut off from the world socially, which resulted in a decline in general awareness and knowledge about developments in the outside world. A map of the globe was such a rare object that Sir Thomas Roe included it among the presents he offered to the Governor of Surat (Chopra 1974, 707). The Indians receded to bask in their own past glory and were completely oblivious to the political, ideological, and scientific developments that were taking place outside their own world. No wonder, then, that the withdrawal into a shell of cultural identity led to rigidity and resistance to change, and forestalled further development in many of the branches of learning. Excerpts from a letter of the Mughal Emperor Aurangzeb to his teacher throw some light on these deficiencies: In the first place you have taught me that all Faringistan (so it seems they call Europe) was nothing, but I know not what little island, of which the greatest king was he of Portugal, and next to him he of Holland, and after him he of England: and as to the other kings, as those of France and Andalusia, you have represented them to me as our petty rajas, telling me that the kings of Indostan were far above them altogether, that they (the kings of Indostan) were—the greatest ones, the conquerors and kings of the world; and those of Persia and Usbec, Kashgar, Tartary and Cathay, Pegu, China and Matchina did tremble at the name of the kings of Indostan. Admirable geography! You should rather have taught me exactly to distinguish all those states of the world, and well to understand their strength, their way of fighting, their customs, religions, governments, and interests; and by the perusal of solid history, to observe their rise, progress, decay; and whence, how, and by what accidents and errors those great changes and revolutions of empires and kingdoms have happened. (Durrant 2002, 558–559)

Commercialization and Globalization of Higher Education in India

35

The letter might not reflect the actual availability of knowledge in India, but it cannot be denied that the obsession with tradition and the fear of cultural contamination and annihilation had blunted the knowledge base of the Indians, so much so that they could not even snub Lord Macaulay’s contemptuous remarks in his notorious minutes regarding the medium of education in India. Supporting English education, he stated: I have never found one among them who could deny that a single shelf of a good European library was worth the whole native literature of India and Arabia. In addition, I certainly never met with any Orientalists who ventured to maintain that the Arabic and Sanskrit poetry could be compared to that of the great European nations. It is, I believe, no exaggeration to say that all the historical information which has been collected from all the books written in Sanskrit language is less valuable than what may be found in the most paltry abridgments used at preparatory schools in England. The question now before us is simply whether, when it is in our power to teach this language, we shall teach languages in which by universal confession there are no books on any subject which deserve to be compared to our own; the languages of Western Europe, civilized Russia. I cannot doubt they will do for the Hindu what they have done for the Tartar.1

Overhaul of Education in British India: Introduction of Western and Financial Norms The Renaissance and the discovery of past wisdom enlightened the Indians as to the causes of cultural and political decline. Raja Ram Mohan Roy correctly understood that it was the defensive orthodoxy which had blunted the educational and informational enthusiasm of the Indians, resulting in their backwardness and oppression. He therefore relentlessly and successfully advocated the Western pattern of education for all Indians, based on scientific enquiry and rationality. This would induce Indians to question commonly accepted beliefs instead of accepting everything on the basis of faith. Lord Macaulay also advocated the Western system of education for Indians, but with a somewhat different objective. He wanted to design the system to ensure the cultural hegemony of the British, which would sustain colonial rule in India. His objective was to “form a class of persons, Indian in blood and in color, but English in tastes, in opinions, and in morals and in intellect” (Majumdar and Dutta 1

See Excerpts of Macaulay’s Minute in the Appendix of Majumdar and Dutta (1965, 80).

36

Chapter Three

1965). These objectives were central to the Woods Despatch of February 18, 1924, and Lord Bentinck’s Resolution of 1835. The idea was that the Indian youth should cease to regard the British as foreigners. However, the introduction of Western education did not have the results desired by the colonial masters. The spirit of enquiry and rationality inspired the Indians to question the roots and rationality of British domination over India. Many of these skeptics were the fortunate few who had earned their highest degrees abroad. Reference may be made in this connection to the evidence given before the Select Committee of the House of Commons by Major General Lionel Smith, K.C.B., (with regard to these skeptics)—”they feel the value of governing themselves,” and therefore, “the effect of imparting education will be to turn us out of the country.” However, he would not regret it, “for America has been more valuable to us separate than as a colony.” Mountstuart Elphinstone held the same view. Lt. General Briggs, visiting his camp one day and observing in his tent a pile of printed Marathi books, asked what they were for. “To educate the native,” said Elphinstone, “but it is our high-road back to Europe” (Griffiths 1952, 245). An important development that took place in modern India at the time was the introduction of commercial principles—to some extent—in higher education. Many institutions were run as profitable business concerns. Lord Curzon tried to regulate this with his Universities Act of 1904, which tightened the control of the government over higher education (Majumdar and Dutta 1965, 60). A major impact of British rule in India was the transformation of the concept and role of the state in practice. The British administrative machinery made the presence of the state felt in every sphere of life. This meant that the Indian leaders, during their struggle for freedom, needed to develop a vision for the future of India that required economic, social, and political transformations, and hence the need for a welfare state. Therefore, after the much-awaited independence, the government did not forget to lay special emphasis on higher education. Education played a very important role in the vision of the future of India as imagined by Pt. Jawaharlal Nehru, and Maulana Abul Kalam Azad, the education minister at that time. Therefore, the Central Government was vested with more regulatory powers than the states. 2 The University Grants Commission (UGC) established in 1953 was and continues to be the general body that regulates the standard of higher educational institutions. 2

Entry 63 to 66 of list 1, entry 32 of list 2, and entry 25 of list 3 of the Seventh Schedule.

Commercialization and Globalization of Higher Education in India

37

Higher Education in the 21st Century: Commercialization and Globalization The government, unable to meet the growing demands of higher education or resist the pressures of foreign service suppliers wanting to enter the Indian market, has welcomed private investments, including foreign direct investment (FDI), in the sector. In fact, India also made and revised its offers about higher education services at the Doha round of negotiations in 2005. Within a decade, the number of private universities and private professional colleges increased by manifold. With more than 700 private universities and colleges, this market-based education system to which India was introduced by the British now culminated in a complete commercialization. The regulatory structure of higher education is now being remodeled as a market-based one. The National Commission for Higher Education and Research Bill, 2010; the Prohibition of Unfair Practices in Technical Educational Institutions, Medical Educational Institutions and Universities Bill, 2010; the Universities for Innovation Bill, 2010; the Educational Tribunals Bill, 2010; the National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010; and the National Academic Depository Bill, 2011 are all designed to make the higher education sector very competitive. Initiatives like the Universities for Innovation Bill suggest that there is a realization that not all educational institutions can be on the same footing. Some educational institutions have to be provided special assistance to equip them to compete with the best in the world while simultaneously promoting indigenous research and knowledge development. There can be no doubt that change is what is required today. Indian culture and society have normally been assimilating and accommodative of new ideas, which accounts for the rich diversity in Indian cultural heritage. “Aa No Bhadrah Kratvo Yantu Vishwatah” (“let noble ideas come from all sides”) has been a motto for Indians since ancient times. The withdrawal into a defensive cocoon during the medieval age did more harm than good to our cultural identity. However, it is imperative that the new higher education system has to stay rooted in the social realities of India to be meaningful for the overall development of the country. The new globalized and commercial higher education system in India faces the following challenges.

38

Chapter Three

The Challenge of Standards Largely, the present regulatory structure of higher education provided by the UGC, as the regulatory body, has been ineffective. The UGC has largely become a funding agency. The regulatory structure of higher education under the Indian Constitution is divided between the center and the states. A lack of coordination between the two makes any regulation of higher education institutions very difficult. The problem becomes more acute with private universities and colleges. The danger can best be illustrated by the case “Prof. Yashpal v. State of Chhattisgarh,”3 in which the petitioner challenged the Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002, of the State of Chhattisgarh. Around 112 universities were established in a short span of one year and many of them had no buildings or campuses. They were functioning from one-room tenements. There was no regulation or control over them. The Supreme Court found that these universities had been established with only proposals for campuses and facilities: these did not exist at the time of their establishment. Unfortunately, however, the Supreme Court took a retrograde step in 2013, when in the case of the “Christian Medical College v. Union of India and Ors,” 4 by a majority of two to one, it quashed the National Eligibility cum Entrance Test (NEET) conducted by the Medical Council of India. The Court allowed private medical colleges to have their own entrance tests and policies. Life, health, and welfare of the common man were ignored. 5 It was left to unhappy Dave, J. who was not even consulted, to offer the minority opinion by pointing out how necessary three things were—good admission policy, good curriculum, and good examination policy—to ensure the presence of good doctors in society. Given the type of private educational institutions that are coming up, one wonders whether the upapatakin of today would be able to produce a modern-day Jivaka. As of today something like 50–60 per cent of the colleges are substandard. They have an enrollment of not more than a couple of hundreds and what happens in the four walls of those colleges can hardly be described as education. Now there was no way of regulating the proliferation of these colleges. The colleges were being established because of a certain conjunction of interests between the politicians and educational 3

(2005)5SCC 420. (2014) 2SCC 305. 5 It is surprising that the decision was available to the private educational institutions even before it was delivered. 4

Commercialization and Globalization of Higher Education in India

39

entrepreneurs. The whole thing was rooted in the reality of political life and even the state governments found it difficult to resist these pressures. The stark fact today is that more than 50 per cent of the colleges in India are intellectual and social slums and it is as difficult to take care of it as it is difficult to convert slums into habitable areas in a city. (Singh, 2004)

The challenge of standards becomes more acute when we see the management structure of the private universities and colleges. Earlier, the investment in the education sector was in accordance with Indian traditions and largely philanthropic.6 Trusts and societies were established in a charitable and non-commercial spirit. The institutions were allowed autonomy and the faculty and staff were treated with dignity, which attracted good talent. Excess incomes were utilized for further growth of the institutions (Agarwal 2009). However, the new business-model-based private universities and colleges have different management structures and, consequently, different reputations. Many of these are family-run businesses specializing in window-dressing and marketing. In many cases, public relations are their main asset, and infrastructure and quality of teaching their first casualties (Agarwal 2009, 78). In most of the private educational institutions, major power lies with the sponsors, who are either industrialists or politicians. This may not be very healthy for the growth of academics in the country. Apart from being an avenue through which to legalize black money, college campuses are vulnerable to becoming breeding grounds for unhealthy political activities. A nexus of foreign and Indian industrialists, politicians, and the educated elite may be too harmful—socially and politically—to be ignored. The problem may be more acute with foreign universities. It is felt that a fascination with everything foreign may make India a marketing ground for substandard foreign institutions and a dumping ground for low-quality faculty. It may also result in an internal brain drain, with better-qualified teachers preferring foreign institutions in the hope of better pay and prospects. Absence of job security in private universities—whether Indian or foreign—may compromise the intellectual independence of academic staff working there. It is not surprising that this may be harmful to Indian interests. 6

Noted examples are the Indian Institute of Science (which was earlier the Tata Institute of Science) at Bengaluru; the Tata Institute of Social Sciences and the Tata Institute of Fundamental Research at Mumbai; BITS (Pilani), set up by the Birlas; and the Thapar University at Patiala set up by the Thapar group. Other examples of such a philanthropic approach are the Dhirubhai Ambani Institute of Information Technology at Gandhinagar and the Reliance School of Life Sciences near Mumbai, set up by the Ambani family.

40

Chapter Three

The Challenge of Growing Business Culture and Concentration Self-financed and private institutions have to deliver results to their students. It is assumed that the stress on marketing the institution among recruiters and the media, although good for competition, may divert the focus of education in the long run. This may result in greater emphasis on what is more expedient for success than what is necessary to set a good educational base. Educational entrepreneurship combined with political leverage may create situations of concentration and monopoly in the market. There is already a growing network of universities and professional institutions run by particular groups. Once these institutions create a nexus with prospective job providers or recruiters, the fallout may be an unhealthy impact on the academic culture and a diminishing ability to regulate fees. The problem may be more dangerous if the institutions— either managed by politicians or having political leverage—are able to make inroads into government sectors, where recruitment is not enabled by competition. The nexus of institutions that are politically managed may generate unhealthy competition in these sectors as well. The combined effect of all this may be to stifle competition in the education sector, which will adversely affect the academic health of the country. The threat may also be felt when it comes to freedom, and values critical to a free India. The silver lining is that the government is investing in improving existing higher education institutions and inaugurating new facilities which can compete with the best service providers around the world. We see several Indian Institutes of Technology (IITs), Indian Institutes of Management (IIMs), and National Law Universities opening up in every state along with other central and state universities. These state institutions may provide healthy and tough competition for the private sector. However, with the growing culture of repression and significant numbers of “club academicians,” one wonders how far government-run and government-aided institutions will be able to provide academic freedom to the personnel working there. The situation becomes graver in the light of the fact that even an academic luminary like Amartya Sen had to leave Nalanda University, stating that academic freedom was under threat in India.

The Challenge of Access and Equity Indians have long forgotten that education for money was once condemned in India. No doubt, it has become necessary to allow private funding in higher education. This enables the government to discharge its

Commercialization and Globalization of Higher Education in India

41

obligations toward primary education. However, the Indian Constitution, which has been characterized as a social document, envisages a country where equity and justice will prevail. National leaders of India relied heavily on the modern education system to ameliorate many existing social ills and disparities. There is, therefore, a need to adjust the social ideals of the Indian legal system with the commercialization of the higher education system. The Court and the Parliament seem caught up in this conflict.7 The issue of access and equity in higher education, then, raises two questions. The first is whether the reservation policy applies to private educational institutions. In “P.A. Inamdar v. State of Maharashtra” 8 the Supreme Court answered in the negative. However, the Parliament turned it into the positive by amending the Constitution and adding Clause (5) to Article 15. This clause extends the power of the state in making provisions regarding reservations in private educational institutions, whether aided or unaided. The Supreme Court, too, bowed before the power of democracy and did not doubt its validity in the case “Ashok Kumar Thakur v. Union of India.”9 The second issue relates to the fee structure of private educational institutions. The Supreme Court has been struggling with this question. Education has been held to be an occupation under Article 19 (1) (g) of the Constitution and, consequently, subjected to reasonable restrictions given in Article 19(6). It is interesting that the Court has termed the business of private educational institutions as “occupation” rather than “trade.” The impact of Indian history is evident where education has been held to be a social good rather than a commercial product. Since starting with the idealistic notion in “Mohini Jain v. State of Karnataka,”10 where education was held to be a fundamental right, the Court has tempered this view in subsequent cases. However, it has struggled to find a balance between the survival of private educational institutions and the demands of equity and justice when enabling access to higher education. In a series of cases, from “Unni Krishnan v. State of A.P,”11 to “TMA Pai Foundation v. State of Karnataka,” “Islamic Academy of Education v. State of Karnataka,”12 and

7 According to the 12th plan, the share of private institutions increased from 61.75% in 2006/7 to 63.88% in 2011/12. 8 (2004) 8 SCC 139. 9 (2007) 4 SCC 361. 10 (1992) 3 SCC 666. 11 (1993) 1 SCC 645. 12 (2003) 6 SCC 697.

Chapter Three

42

finally “P.A. Inamdar v. State of Maharashtra,”13 the Court emphasized the social nature of educational institutions and emphatically denied the right to charge capitation fees. However, unfortunately, the trend may be reversed because of the majority decision in “Christian Medical College v. Union of India.”14 With private medical colleges being allowed to have their own entrance examinations, the chances that they will charge capitation fees and donations in lieu of admission are high. It is submitted that examples of successful missionary medical colleges and hospitals, going by the majority, in this case, pertain to philanthropic institutions, and therefore do not hold true in the new scenario where education has become a business.

The Challenge of Hegemony and Social Alienation The absence of a connection between the educated youth and society is perhaps the biggest challenge posed by a globalized education system today. Being educated through foreign ideas in various institutions, these youths remain unaware of their own history and the current social and cultural situations. Commercialization of education and the competition to excel in the market compels these institutions to sell themselves and their products to foreign markets. A minor example of this hegemony is the increased emphasis on learning a foreign language in schools and colleges, without adequate emphasis on or any persuasion to learn Indian languages. The purpose of this emphasis is not only to facilitate jobs in multinational companies but also to enhance one’s social prestige. Brought up on a steady diet of foreign literature, philosophy, and theories, students start viewing society through “foreign” lenses. The alienation of the educated class is also expected to bring about irrational reactions, which is evident in India and some of the other Asian countries today. Such a reaction rejects anything foreign and tries to bask in past glory—real or imagined. The result is that many Indians today claim that 3,000 years ago, airplanes existed in India and plastic surgery was also undertaken then! How one misses the informed pride of Swami Vivekananda, Mahatma Gandhi, and Jawaharlal Nehru! To a large extent, the responsibility for this lies with the educators and teachers who have failed to provide quality research and learning in India. The worst hit are the social science researchers. We know and understand our society largely from what the British researched and told us. We use the same parameters to analyze the social and political conditions in India 13 14

(2004) 8 SCC 139. (2014) 2 SCC 305.

Commercialization and Globalization of Higher Education in India

43

even today.15 One often hears about seminars about the decolonizing of the knowledge system and concerns about the Eurocentric approach to the social sciences (Agarwal 2009). The problem, however, is more acute in the legal field because it is difficult to ensure that law graduates are well connected with the society in which they have to implement the law they have studied. These students, in fact, should also be in a position to make new laws in future. Law graduates of the National Law Universities and private universities view and critique the Indian legal system as outsiders, influenced by what they have read on the Internet and in foreign writings.16 This is not to say that they lack sympathy or do not empathize with the existent social conditions. However, they are not able to connect their skills, thinking, and ideas with the reality of social conditions in India. This may signal a crisis for the legal system since these elites in the legal profession are in a position to influence the legal system from the top, and this may adversely affect its democratic stability. The elites of today are unlike the national leaders of the past, many of whom were educated abroad. These national leaders imbibed the virtues of modern ideas, but worked for Indian society. They molded and translated those virtues in the context of native traditions and languages. Again, the lack of authentic and serious research among academicians is the main culprit. We need to emphasize empirical research, especially in the legal field, to bring students close to the society in which law has to operate. India currently has the lowest number of researchers, with 119 per million people as compared to 4,605 per million in the US, 3,261 per million in the UK, 708 per million in China, and 344 per million in Brazil (Agarwal 2009). This is ironic, because in 1980 India was “light years” ahead of China in this respect (Agarwal 2009). It is expected that foreign funding in research may help it develop in India. However, extreme care has to be taken to ensure the independence of ideas. This can happen only if there is competition in research and there are findings that can be challenged by alternative research.

Conclusion Traditionally, education has been considered a public good in India, but it has become a commercial product now. It was during the British period that India was pulled out of its cocoon and exposed to Western culture and ideas, and the developments in philosophy, the sciences, and 15

See Alvares (2011, 72), Balakrishnan (2011, 29), John (2011), Venkatesh Kumar (2011, 37), and Bhattacharya, (2010, 14). 16 See Rai (2012a, 47; 2012b, 369).

44

Chapter Three

the social sciences. The Don Quixotes of the Enlightenment period in India helped prepare the country to face the challenges of the modern world. They challenged the malpractices that had crept into Indian society and culture, and reminded us of the virtues of freedom and scientific temperament. They represented noble aspirations of modern India, a country that was trying to rediscover itself and reclaim respect in the international arena. Today, technological advances in communications have brought the world closer. It is difficult to remain aloof from these global currents. Therefore, higher education in this scenario, in a country like India, becomes important. Today, the challenge is about opening the windows of a closed society to allow the fresh breeze of new ideas to waft in. The challenge we now face lies in preventing a total uprooting of young minds under pressure from the strong winds on the backs of which ride foreign influences. This uprooting may take the form of ignorance, indifference, or contempt for national interest. It may even take the form of reaction, of rejection of anything that has some semblance to foreign influence. Both these cases indicate some kind of disconnect between education, the real world, and an obliviousness to the social conditions and their requirements. The Don Quixotes of today either forget, or remain insensitive to, simple truths, like the graduates of substandard institutions or private medical colleges who are employed in private hospitals, which are unregulated and imperil the lives and the health of common people. One can only wonder at the contrast between the story of Jivaka and these commercial medical colleges of today. In this context, we can refer to Justice Krishna Iyer’s words, who likened these “business model educational institutions” to “armored knights in a flock of sheep.”17 It cannot be doubted that the growing demand for better educational institutions in India requires greater private investment in the educational sector. Currents of globalization cannot be stopped, nor can they be reversed. This would not, in any case, be desirable in a country where Vasudhaiv Kutumbkam (“the whole world is one single family”) has always been an ideal, but in order to turn this ideal into reality it is imperative that the higher education system remains responsive to the social requirements and realities. The educated mind may be open to noble ideas from all sides, but the feet of the educated elite should be rooted in the native soil. To meet these twin objectives, first, it is important to 17

In Christian Medical College v. Union of India, J. Altamas Kabir referred to Justice Krishna Iyer’s judgment in Jagdish Sharan & Ors. v. Union of India & Ors [(1980) 2 SCC 768], which was on the issue of reservations in admission in medical colleges.

Commercialization and Globalization of Higher Education in India

45

temper the commercialization of higher education with demands for equity of access; second, it is equally critical to design the education system in such a way that adequate emphasis is laid on empirical research, especially in the legal field, to ensure that students study law in conjunction with social realities and that lawmakers and judges are well informed about the social situation before they make a law or arrive at a decision. Only then can we have a legal system with a democratic base. In the absence of this, the very foundations of democracy may be threatened.

References Agarwal, P. 2009. Indian Higher Education: Envisioning the Future. New Delhi: Sage Publications Pvt. Ltd. Alvares, Claude. 2011. “A Critique of Eurocentric Social Sciences and the Question of Alternatives.” Economic and Political Weekly, XLVI: 72– 81. Balakrishnan, Pulapre. 2011. “A House for the Social Sciences.” Economic and Political Weekly, XLVI(33): 29–31. Bhattacharya, Abhijit. 2010. “Mismanagement of Indian Management Education” Economic and Political Weekly, XLV(24): 14–17. Cervantes, M. de. 1605. Don Quixote, edited by Tom Griffith. 1998 edition. London: Wordsworth Classics of World Literature. Chopra, P.N. 1974. “Social Condition.” In The History and Culture of Indian People: The Mughal Empire, edited by R. Majumdar, J. Chaudhuri, and S. Chaudhuri, 679–712. Mumbai: Bhartiya Vidya Bhavan. 3rd edition 1994. Durrant, W. 2002. Story of Civilization: Our Oriental Heritage Story of Civilization. Carrollton, TX: Will Durrant Foundation. Ghoshal, U.N. 1957. “Education.” In The History and Culture of Indian People: The Struggle for Empire, edited by R. Majumdar, A. Pusalker, and A.K. Majumdar, 508–51. Mumbai: Bhartiya Vidya Bhavan. 5th edition, 2001. Griffiths, Sir Percival. 1952. The British Impact on India. London: Macdonald. John, Mary. 2011. “Institutional Citizenship, Research Cultures and the State.” Economic and Political Weekly, XLVI(32): 32–34. Kostoff, R.N., Johnson, D., Bowles, C.A., and Bhattacharya, S. 2007. “Technological Forecasting and Social Change.” Assessment of India’s Research Literature, 74(9): 1574–1608. Majumdar, R.C., and Dutta, K.K. 1965. “English Education.” In The History and Culture of Indian People: British Paramountcy and Indian

46

Chapter Three

Renaissance, Part II, edited by R.C. Majumdar, A.K. Majumdar, and D.K. Ghose, 81. Mumbai: Bhartiya Vidya Bhavan. 3rd edition 1991. Mukherjee, Radha Kumud. 1951. “Education.” In The History and Culture of Indian People: The Age of Imperial Unity, edited by R.C. Majumdar, A.D. Pusalker, and A.K. Majumdar, 585. Mumbai: Bhartiya Vidya Bhavan. 7th edition 2001. Rai, Sheela. 2012a. “Linking Cyber to Soil.” In Conference Proceedings of International Conference on Access to Legal Information and Research in Digital Age, 369–373. New Delhi: National Law University Delhi. —. 2012b. “Twenty Five Years of National Law Universities.” Practical Lawyer, October: 47. Venkatesh Kumar, B. 2011. “Governance, Autonomy and Social Science Research.” Economic and Political Weekly, XLVI(33): 37–38.

CHAPTER FOUR VALUE DEBATES ON ABORTION SANDEEPA BHAT B

Introduction One of the major areas of conflict between law and ethics, from the very beginning of civilization, has been the issue of abortion. Over time, it has been subjected to endless value debates, primarily due to the two conflicting rights of the ethico-legal paradox, which are: the right of the life in the womb to take birth, and the bodily autonomy of the pregnant woman to do whatever she wants to do with her body. While both rights are paramount from the perspectives of the child and the mother, respectively, the overwhelming concern is to decide the weightage due to each of these conflicting rights and values. The role of law is to find a delicate balance between these two rights so that one right does not abrogate the other, without genuine reason. In the light of this, legislatures the world over have tried to achieve this task of balancing interests by considering the socio-ethical dimensions that prevail in their respective societies. While the focus of these debates on abortion has essentially been on these two conflicting rights, a number of other issues have come to the fore over the course of time. These have included ethico-legal concerns, such as rape victims, premarital sex, and religious sanctions for abortion among others. In addition, the developments in medical science have also multiplied the concerns surrounding abortion by making it much safer now compared to what it was like in earlier times. One such pressing concern, especially in a country like India, is the practice of sex detection and the consequential act of female feticide. Moreover, the legislative regulation regarding abortions has often been contorted by people availing themselves of the services of unauthorized personnel (quacks) who perform abortions, illegally. In addition, these have been beyond the scope of the statutory provisions. Such acts have been found to compromise the

Chapter Four

48

health of pregnant women. So, questions have been raised not only in India but also in other parts of the world as to what constitutes proper regulation and how one can draw the line between proper regulation and over-regulation of abortion. In the light of these aspects, it becomes relevant to deal with the value debates surrounding abortion in greater detail.

Meaning and Types The term “abortion” is derived from the Latin word “aboriri,” which means, “to get detached from the proper site” (Webster’s New Dictionary and Thesaurus 1995, 1–2). In medical usage, “abortion” implies the termination of a pregnancy before the period of viability, expulsion, or extraction of all or any part of the placenta or membranes, without an identifiable fetus. The National Center for Health Statistics defines abortion as a fetus or embryo removed or expelled from the uterus during the first half of gestation—20 weeks or earlier—or, in the absence of accurate dating criteria, a fetus born weighing less than 500 g (Cunningham 2009). The Center also defines “birth” as the complete expulsion or extraction from the mother of a fetus after 20 weeks’ gestation. In the absence of accurate dating criteria, fetuses weighing less than 500 g are usually not considered births; rather, they are termed “abortus” for the purposes of vital statistics. Thus, abortion would mean expulsion of the human fetus from the womb before it has reached a state of development sufficient to permit it to survive independently. In other words, a state reached between the 21st and 28th weeks of pregnancy (Walker 1980). Abortion may be classified into various categories depending on the nature and circumstances under which it occurs. Though there is no uniformity in the classification of abortion, some major types of abortions include natural and induced (unnatural) abortion—two broad categories of abortions. In medical terms, induced abortion is classified into two categories—the surgical and the nonsurgical (also known as medical abortion). In addition, abortion is also classified on the basis of the reasons for which it is carried out. Depending on these reasons, abortion may be classified into four broad categories: 1. 2. 3. 4.

Spontaneous abortion Accidental abortion Therapeutic abortion Artificial or induced abortion.

Value Debates on Abortion

49

Spontaneous abortion is generally referred to as pregnancy loss before the completion of 24 weeks of pregnancy, due to various natural reasons. It may be due to problems in the fetus, placenta, or uterus, or alternatively due to health problems of the pregnant woman, such as hypertension and trauma. Spontaneous abortion, often termed “miscarriage,” is usually the body’s natural way of preventing the birth of a child with inborn deficiencies. Similar to a spontaneous abortion is the accidental abortion. This is a kind of natural miscarriage caused by factors beyond the preventive powers of human beings. It may be due to events that cause physical or mental damage to the pregnant woman, at any stage of the pregnancy. Therapeutic abortion is carried out for some compelling reason(s). It is not attributed to natural causes but is induced by medical intervention. The reasons for therapeutic abortion may be fetal anomalies or protection of the health or life of the pregnant woman. The health of the pregnant woman, in this case, is given a broad meaning in many jurisdictions, to include her mental health. Therefore, for example, the abortion of a pregnancy resulting from rape might fall under this category. Induced abortion is the intentional termination of the pregnancy without any compelling reasons related to the fetus or the pregnant woman’s health or life. These kinds of abortions may be carried out because of social problems, such as a premarital pregnancy, teenage pregnancy, an unplanned pregnancy, or economic difficulties. Usually, one proceeds with these types of abortion in the early stages of one’s pregnancy. However, there are cases where, for unavoidable reasons, such abortions are carried out in the later stages of pregnancy. While abortion under the first three categories is not punishable, induced abortion may be punishable, if not specifically exempted under law. There is a strong argument among the scholars against induced abortion. According to them, abortion should not be allowed at the drop of a hat. It should stand as an exception to the course of nature, in cases involving risks to the health or life of the fetus or that of the pregnant woman. However, it has been found that it is practically difficult to adhere to such a strong viewpoint against induced abortion, especially in the modern era where there are a considerable number of advocates supporting the right to bodily autonomy. In this regard, most jurisdictions across the world have enacted legislation to regulate induced abortion and prevent its misuse. Despite this, statistics reveal that out of approximately 44 million induced abortions that take place each year around the globe, more than half are illegal and executed by unqualified, untrained people and under highly unhygienic conditions. The situation is more alarming in

50

Chapter Four

developing countries, since 98% of unsafe abortions have been found to take place here (Guttmacher Institute 2012).

Religious Viewpoints Ethical debates surrounding abortion are primarily based on religious viewpoints, coupled with changing societal standards in the wake of the development of civilization. The key point of the debate has been determining at what point after conception the beginning of life occurs, the perception of which varies from group to group. While some groups advocate the view that life begins soon after conception, others have argued about the existence of life at different stages after conception. These stages include the formation of the nervous system and the brain, the first brain activity, the fetus’s capacity to survive independent of the uterus (viability), and the first breath after birth. Accordingly, the perception that abortion kills a life also varies from person to person and from one religion to another. The Roman Catholic Church has opposed abortion for a long period of time. It believes that human life is the gift of God and human beings are merely the custodians of their lives, not the owners. Abortion goes against this belief. It denies importance to the idea of the sanctity of life by nipping it in the bud, under the assumption that the pregnant woman is the owner of her life and that of her unborn child. The Catholic Church however, consistently defends the right of the unborn to take birth and live as per the course of nature. This has been reflected in the following statement of Pope Pius XII: Every human being, even the child in his mother's womb, holds his title to life directly from God, and not from his parents or from any human society or authority. Therefore no man, no indication medical, eugenic, social, economic or normal can show or give a valid legal right to dispose of an innocent human life directly and deliberately, that is to dispose of it with a view to its destruction, whether this is regarded as the end, or as the means to an end which may not in itself be in any way unlawful.1

Though the Bible has little to say about abortion, the Book of Numbers in the Old Testament is quoted by some scholars as the basis for permitting abortions in cases where the woman is pregnant with another man’s child outside the marital relationship (Berquist 2002). Most scholars 1 Reference can be seen in V. Krishnan v. G. Rajan Alias Madipu Rajan and Another 1994 (1) Mad LW (Cri) 16.

Value Debates on Abortion

51

in the early Christian era believed abortion to be a sin, though there was no agreement on the category or the graveness of the sin (Tollefsen 2010). In general, abortion was viewed as a sin equivalent to sexual immorality (Gorman 1982). Classical Hindu scriptures strongly condemn abortion and consider it a sin that mandates punishment. There is a strong sentiment of respect toward all living creatures, including insects, plants, animals, and trees; they enjoy a kinship with one another, and are thus worthy of respect and life. This respect for life begins at conception and the fetus is considered a living being in need of protection (Murti and Derr 1999). According to the Charaka Samhita, a Sanskrit text on Ayurveda, souls join with the matter in the act of conception, and thus the fetus, a being with a soul, is to be protected. In the Rig Veda Samhita, Lord Vishnu is referred to as the protector of the child-to-be, which leads to the necessary implication that the fetus enjoys divine reverence. An act of abortion would thus go against the course of nature. The killing of the fetus is referred to as Bhrunahatyaa, and the person who causes the abortion is termed Bhrunahatyaaka. The Hindu perception is also based on the choice of the right action that causes least harm to all the stakeholders—the mother, the father, the fetus, and society. Driven by this logic, abortion has never been considered right for the pregnant woman. The Kaushitaki Upanishad equates abortion with the killing of one’s parents. The Mahanarayana Upanishad lists the abortionist as performing actions similar to the breaking of one’s vow of chastity (Stephens 2010). However, the Atharva Veda indicates that abortion was not something unknown in the Vedic age. It was especially undertaken to protect the life of a pregnant woman. However, with that exception, abortion was always considered a sin, and for expiation in such cases one had to perform the ceremonies prescribed in the Taittinya Upanishad and in the Arunam. Manu, in his Dharma Sastra, said, “a killer of a priest or destroyer of an embryo casts his guilt on the willing eater of his provisions; an adulterous wife on her negligent husband; a bad scholar and sacrifice on their ignorant preceptor; a thief on the forgiving prince” (Chapter VIII, Verse 317, quoted in Haughton 1982, 218). Kautilya’s Arthashastra provides the highest and most stringent punishment—physical assault—for those who prescribe and undergo abortions. The arguments against abortion can also be seen in the theories of reincarnation and the laws of Karma in Hindu philosophy. According to the theory of reincarnation, an individual soul reincarnates and goes through the process of many births and deaths until all karmic results, good and bad, are resolved. During this process, the karma (of good or bad

52

Chapter Four

deeds) generated in one’s existing life determines whether one enjoys a comparatively higher or suffers a lower existence in the next birth (Murti and Derr 1999). Upon the completion of this cycle of births and deaths through the resolution of karma, the soul (atman) unites with the creator, God (Paramatman), leading to salvation (moksha). Abortion leads to unnatural intervention in this holy process of reincarnation and salvation. It is felt that it deprives a soul of the opportunities to earn good karma and attain salvation (BBC 2009). The Vedic period’s medical treatise, the Sushruta Samhita, authored by Sushruta, contemplates abortion in circumstances where the fetus is irreparably damaged or defective and the chances of normal delivery are very low. Waiting for the course of nature to abort such a child may be risky and, therefore, it is cited that the surgeon should not wait for nature to take its course (Jain 2012). It also specifies steps to be taken in the case of serious problems occurring during delivery, in an attempt to save both the mother and the child. If the fetus is alive, one should attempt to remove it from the womb of the mother alive … [Sutra 5]. If it is dead, it may be removed. In case the fetus is alive, but cannot be safely delivered, surgical removal is forbidden for one would harm both mother and offspring. In an irredeemable situation, it is best to cause the miscarriage of the fetus, for no means must be neglected which can prevent the loss of the mother [Sutras 10–11].” (Hindu Human Rights 2012)

Though Hinduism has a strong anti-abortion policy, of late, practice has often differed from theory as a result of strong cultural preferences shown for sons over daughters (BBC 2009). This may be due to the strong religious belief that a son has the right to perform the last rites of his parents—a practice which is essential for salvation. It may also be due to the cultural, social, or economic perceptions through which a son is regarded as an “asset” and a daughter as a “liability” (Goodkind 1999). Such a male-centric approach in Hindu society has resulted in many instances of female feticide, which was unknown in ancient Hindu society. The advent of technology to determine the sex of the child in the womb of the mother has worsened matters further. Views against abortion can also be traced in Islam. The Qur’an condemns effecting a change in the scheme of God, terming it a wicked act.2 It maintains that only God (Allah) can create life or ordain it to be 2

Reference can be made to Chapter 6, Verse 151; Chapter 17, Verse 31; Chapter 5, Verse 31; Chapter 60, Verse 12.

Value Debates on Abortion

53

taken away during the entire period from conception to natural death. This is found strongly rooted in Islamic beliefs (Katme 2015). Every child is considered a gift of God, every conception is deemed legitimate, and every pregnancy is desired and wanted, though there is a prohibition on sexual relationships outside marriage. The Maliki jurists, who vehemently oppose abortion, believe that when the semen settles in the womb, it is expected to develop into a living baby. Therefore, it should not be disturbed by anyone. According to Islamic beliefs, the schemes of God with regard to marital relationships favor procreation and the fostering of love and affection, along with the promotion of culture and civilization. Thus, the Qur’an states, “Your wives are a tilth for you, so go into your tilth as you like and do good beforehand for yourselves.” It points toward the biological fact that the man is a tiller and the woman a tilth, and that the foremost purpose of the inter-relationship between the two is the procreation of the human race. This is an objective which is common not only to human beings, but also to the animals and birds, and the world of vegetation. Just as the tiller of the soil cultivates the land not in vain but for the produce, the man as a tiller in the marital relationship is by nature bound to strive for the produce, that is, the child. If this purpose is taken away, the entire pursuit becomes meaningless. Thus, intervention in God’s scheme is not only unwarranted, but also forbidden. Going by this argument, some Islamic scholars have also condemned the use of birth control measures and contraceptives. The classical prohibition on abortion under Islamic law is not without exception. Sharia law permits abortion in circumstances where there is a need to protect the life of a pregnant woman. However, this is only undertaken upon the doctor’s declaration—with reasonable certainty—that the continuation of the pregnancy will endanger the woman’s life. It is based on a choice between the greater and the lesser evils, and tilting in favor of inflicting the lesser evil to avoid the greater evil. The roots of this logic point to Prophet Mohammad himself, who said, “When two forbidden things come [upon a person] together, then the lesser will be sacrificed for the greater” (Syed 2012). In addition, the different Islamic schools of today permit abortion at different stages of pregnancy for various reasons (Syed 2012).

54

Chapter Four

Reflection of Anti-Abortion Views in the Opinions of Scholars Apart from the religious texts and thinkers, a number of scholars— from the legal field and some others—have put forward their own arguments for and against abortion. Aristotle opined that ensoulment 3 happened after a certain period following conception. According to him, the fetus in the early stage of gestation had the soul of a vegetable, then of an animal, and only later became “animated” with a human soul via ensoulment. Augustine supported the views of Aristotle and argued that abortion post-ensoulment was equal to homicide. He maintained a strong reservation toward abortion even in the early stages after conception (Schiff 2000). Saint Thomas Aquinas, Pope Innocent III, and Pope Gregory XIV were of the view that the fetus did not have a soul until the “quickening” (the time when the fetus began to kick and move), and therefore early abortions did not amount to murder. However, Aquinas opined that abortion was still wrong irrespective of the soul’s entry at any stage, though it might not amount to the crime of murder. Sir William Blackstone was of the view that: Life is the immediate gift of God, a right inherent by nature in every individual, and it begins in contemplation, at law as soon as the infant is able to stir in its mother’s womb. (Rastogi 2009)

Protestant reformers such as Martin Luther and John Calvin also addressed abortion, though not in a detailed manner (Maguire 2003). John Calvin made the following observations, while condemning abortion: [T]he unborn, though enclosed in the womb of his mother, is already a human being, and it is an almost monstrous crime to rob it of life which it has not yet begun to enjoy. If it seems more horrible to kill a man in his own house than in a field, because a man’s house is his most secure place of refuge, it ought surely to be deemed more atrocious to destroy the unborn in the womb before it has come to light. (Maguire 2003, 88)

Mahatma Gandhi, being a strong pro-life advocate and the champion of ahimsa (non-violence), opposed abortion as well as artificial birth control measures. In his book, Birth Control: The Right Way and the Wrong Way (Gandhi 1959), Gandhi condemned abortion by stating; “It seems to be clear as daylight that abortion would be a crime.” While counseling a 3

The moment at which the human being attains the soul.

Value Debates on Abortion

55

young man whose unfaithful wife had become pregnant, Gandhiji even went to the extent of saying that it is “the sacred duty of the husband to bring up the baby with all the love and tenderness that he is capable of and to refuse to yield to the counsels of those who recommend abortion” (Vitz 2006). He also wrote: The perfection of the anti-conceptional practice and the methods of bringing about abortion has led to the emancipation of either sex from all moral restraint. No wonder marriage itself is laughed at. (Vitz 2006).

Another pro-life advocate, Martin Luther King, also viewed abortion as “a form of genocide,” though he accepted birth control measures (Evenson 2011). For his contributions relating to birth control measures, King received the Margaret Sanger Award for Planned Parenthood in 1966. However, his work was majorly confined to birth control and family planning, which he clearly distinguished from abortion. According to him, “The Negro cannot win … if he is willing to sell the future of his children for his personal and immediate comfort and safety.” This statement of Martin Luther King is considered by many as the reflection of his thoughts against abortion (Hoye II 2011). According to Mother Teresa: the greatest destroyer of peace today is abortion, because it is a war against the child, a direct killing of the innocent child, murder by the mother herself. And if we accept that a mother can kill even her own child, how can we tell other people not to kill one another? … By abortion, the mother does not learn to love, but kills even her own child to solve her problems. And, by abortion, that father is told that he does not have to take any responsibility at all for the child he has brought into the world. The father is likely to put other women into the same trouble. So abortion just leads to more abortion. Any country that accepts abortion is not teaching its people to love, but to use any violence to get what they want. (Catholic News Agency n.d.)

While reflecting on the effects of abortion, she further states, “Abortion kills twice. It kills the body of the baby and it kills the conscience of the mother” (Kreeft 2007). Lord Denning, in his book The Closing Chapter supported the antiabortion view when he wrote: It is not only the Christian doctrine, but it is the doctrine of our law and our common law that the unborn child has a life of its own and a right of its

56

Chapter Four own which is recognized by the law at least from the time of quickening, and the common law has always recognized that. (Saltman 1991, 124, 125)

Denning further commented: Such a child was entitled to protection by law almost equivalent to that of a newborn baby. Therefore, the termination of pregnancy, which is the destruction of life of the child, results in the commission of a felony punishable by life imprisonment. (Rastogi, 2009, 219, 220)

Pro-Abortion Arguments Despite such strong arguments against abortion, it has become practically impossible for the law to prohibit it, especially in the modern era of bodily autonomy. Such a blanket legal ban might result in people approaching unqualified persons to perform illegal abortions, risking the life and health of the pregnant woman. In the recent past, a large number of pro-abortion groups have emerged in response to the changing dynamics of society (ProCon.org 2015).4 Each of them advocates a long list of reasons for permitting abortion within the four corners of law, more particularly during the initial stages of pregnancy. Some of the major arguments put forward by them may be summed up as follows:

Abortion is a Part of Reproductive Choice of the Pregnant Woman, and Constitutes an Element of the Right to Bodily Autonomy5 One of the essential civil rights of a woman is her ability to exercise control over her body, which necessarily involves reproductive choices. If the state or society forces a woman to continue a pregnancy, it will result in a slippery slope where force may be used to have her resort to contraception or undergo sterilization, and so on, taking away all the reproductive choices that she has (Lowen 2015). In addition, unplanned pregnancies would result in health concerns for the pregnant woman and unnecessary economic and social concerns for the family. The pregnant 4

Planned Parenthood, NARAL Pro-Choice America, the National Abortion Federation, the American Civil Liberties Union (ACLU), and the National Organization for Women are some of the pro-abortion groups active in the United States. 5 See the website of the National Abortion Federation (NAF), www.prochoice.org/get_involved/pro_choice_proud.html (accessed June 23, 2015).

Value Debates on Abortion

57

woman should, therefore, be entitled to make an informed decision about the continuation of a pregnancy that affects her future. In “Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, Governor of Pennsylvania, et al.,” 6 Justice Sandra Day O’Connor commented, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”

Personhood Begins after the Fetus Becomes “Viable” and not at Conception Pro-abortion groups consider that personhood/life does not begin at conception, but only when the fetus becomes viable. This is argued to be reflected in the fact that the person’s age is calculated from the date of birth and not from conception (ProCon.org 2015). Since the fetus is attached to the mother through the placenta and the umbilical cord, scientifically, the health of the fetus in the initial stages of pregnancy is completely dependent on the health of the mother. The fetus can have no existence outside the womb of the mother. Moreover, the fetus cannot experience pain, as the cortex develops only after the 26th week of the pregnancy (Belluck 2013).7 Hence, it is argued that abortion in the initial stages of the pregnancy is not prohibited. In addition, with developments in the field of reproductive technology, the fertilization of the embryo has become feasible even outside the mother’s womb. Any prohibition on abortion would also necessarily mean that the fertilized eggs could at no point of time be thrown away, and this is not possible in the practical sense.

Keeping Abortion Legal Will Make It Safe Legal permission for abortion is not easily forthcoming, so people with unwanted pregnancies either attempt self-abortion or approach unqualified people for secret abortions (Morrison 2014). 8 Consequently, pregnant women seeking an abortion can end up either paying hefty sums, or with serious medical problems. According to the World Health Organization Report of 2005, approximately 68,000 women die every year due to unsafe 6

505 U.S. 833 (1992). This view has been endorsed by Britain’s Royal College of Obstetricians and Gynecologists as well as the American College of Obstetricians and Gynecologists. 8 Abortion in the pre-legalized era was induced by using coat hangers, knitting needles, and radiator flush, or by approaching unqualified abortionists. 7

58

Chapter Four

abortions. The majority of such instances have been found in jurisdictions where abortion is not legalized. In this context, pro-abortion groups argue that legalizing abortion would help women gain access to modern, sophisticated, and safe techniques of terminating their pregnancies. This would prevent any hazardous effects on the health of a pregnant woman, including her ability to become pregnant in future and give birth. Thus, abortion is a valid, free choice to be exercised by a woman in the continuum of her health care.

Prevention of Abnormalities/Severe Disabilities in Children One of the major arguments in favor of abortion is the need to prevent the birth of a child with physical or mental abnormalities. There may be some fetuses with such severe disorders that death is certain either before or immediately after birth. In such a case, there is no point in compelling the pregnant woman to continue with the pregnancy until the unwanted happens. Even in non-fatal conditions, if the child is expected to survive with severe inborn abnormalities, pro-abortion groups argue for a decision to be taken by the pregnant woman and family members about the continuation of the pregnancy. 9 In the absence of such a liberty, it is possible that the child will suffer throughout his/her lifetime for economic, familial, or social reasons. This can only result in absolute misery for the child, if it is born unwanted.

Protection of Interests of Minors and Rape Victims In cases of rape or incest, forcing the pregnant woman to continue pregnancy would be harsh and inhuman. The pregnant woman in such a situation would be punished twice: first, during such a cruel and violent act, and second, during the continuation of the resultant unwanted pregnancy. The psychological harm suffered by the woman in such circumstances is so great that its prevention outweighs the pro-life argument. Forcing the pregnant woman to continue her pregnancy under those circumstances may result in drastic outcomes, such as suicide (Carroll 2015). Planned Parenthood in the United States has asserted that by denying abortion to a victim of rape, pro-lifers, in a sense, became 9

While speaking about Down’s Syndrome, Deborah Anne Driscoll, Professor of Obstetrics and Gynecology at the University of Pennsylvania, mentions that many couples “don’t have the resources, don’t have the emotional stamina or the family support. We are recommending that this testing be offered so that parents have a choice” (Harmon 2007).

Value Debates on Abortion

59

participants in the rape.10 Similar arguments exist with regard to unwanted pregnancies among minors who are incapable of making informed decisions. In the absence of abortion, such minors may drop out of school, lose career opportunities, be subjected to family and societal condemnation, face health problems, and end up being drug addicts or anti-social elements. All these evil consequences are argued as being averted if abortion is allowed (B3CCADEE 2011).

Abortion as a Birth Control Mechanism There are also good numbers of people who support abortion as a birth control mechanism, in the current world scenario where the incessantly increasing population poses a new set of problems. Their argument in this regard rests on the fact that the other means of population control, including surgery and contraception, are not one hundred percent perfect in preventing unwanted pregnancies. Statistics show that most of the unwanted pregnancies in consensual sexual relationships are not due to the failure to use any form of birth control, but due to the fact that the methods did not work properly (EssayMBA 2015). In this light, pro-abortion groups argue that abortion should be available as a last chance to control unwanted births.

Conclusion The abortion debate is rooted in conflicting values and not easy to resolve. The above discussions clearly reflect the fact that there is no right answer in this value debate; rather, there are only preferences depending on individual perceptions, which are too subjective for a conclusion to be arrived at. However, a common trend that can be viewed over the course of time is that there has been a paradigm shift from a rigid anti-abortion stance to a pro-abortion stance, albeit with limitations. This may be due to the concerns over population explosion in certain states or due to technological developments that have made abortion safer today. While abortion may be a necessity in cases involving risks to the life or health of a pregnant woman and rape victims, it does not seem justifiable in other circumstances, especially once the fetus becomes viable. The law needs to allow abortion for limited justifiable reasons, while regulating its misuse for flimsy purposes. That is how the rights of both the stakeholders—

10

Pamphlet distributed by Rocky Mountain Planned Parenthood, 1985.

60

Chapter Four

the pregnant woman and the child in the womb—can be balanced to further the public good.

References B3CCADEE. 2011. “Persuasive Essay: Pro-Choice Abortion.” http://b3ccadee.wordpress.com/persuasive-essay-pro-choice-abortion/ (accessed June 23, 2015). BBC. 2009. Abortion. www.bbc.co.uk/religion/religions/hinduism/hinduethics/abortion_1.sht ml (accessed June 20, 2015). Belluck, Pam. 2013. “Complex Science at Issue in Politics of Fetal Pain.” www.nytimes.com/2013/09/17/health/complex-science-at-issue-inpolitics-of-fetal-pain.html?pagewanted=all&_r=0 (accessed June 23, 2015). Berquist, Jon L. 2002. Controlling Corporeality: The Body and the Household in Ancient Israel. New Brunswick, N.J.: Rutgers University Press. Carroll, Carthage. 2015. “Concerns with Regard to One Element in the Proposed Legislation; Namely, Abortion in the Case of Suicidal Ideation.” www.elphindiocese.ie/choose-life/comment-on-the-debate (accessed June 23, 2015). Catholic News Agency. n.d. “Blessed Mother Teresa on Abortion.” www.catholicnewsagency.com/resources/abortion/catholicteaching/blessed-mother-teresa-on-abortion/ (accessed June 23, 2015). EssayMBA. “Building Up Pro Choice Abortion Arguments.” http://essaymba.com/five-major-pro-choice-abortion-arguments.asp (accessed June 23, 2015). Evenson, Darrick. 2011. “Dr. Martin Luther King, Jr. Had Pro-Life View Opposing Abortion.” www.lifenews.com/2011/07/22/dr-martin-lutherking-jr-had-pro-life-view-opposing-abortion (accessed June 23, 2015). Gandhi, M.K. 1959. Birth Control: The Right Way and the Wrong Way. Ahmedabad: Navajivan Press. Goodkind, Daniel. 1999. “Should Prenatal Sex Selection Be Restricted?: Ethical Questions and Their Implications for Research and Policy.” Population Studies, 53(1): 49–61. Gorman, Michael J. 1982. Abortion and the Early Church: Christian, Jewish & Pagan Attitudes in the Greco-Roman World. Westmont, IL: InterVarsity Press. Guttmacher Institute. 2012. “Facts on Induced Abortion Worldwide.” www.guttmacher.org/pubs/fb_IAW.html (accessed June 20, 2015).

Value Debates on Abortion

61

Harmon, Amy. 2007. “Prenatal Test Puts Down Syndrome in Hard Focus.” The New York Times, May 9. www.nytimes.com/2007/05/09/us/09down.html?pagewanted=all&_r=0 (accessed February 2, 2017). Haughton, G.C. 1982. Manava Dharma Sastra (The Institutes of Manu). New Delhi: Asian Educational Services. Hindu Human Rights. 2012. “Hindu Religious Quotes on Abortion.” www.hinduhumanrights.info/hindu-religious-quotes-on-abortion/ (accessed June 20, 2015). Hoye II, Walter B. 2011. “Conflict of Interest.” www.issues4life.org/blast/2011094.html (accessed June 23, 2015). Jain, Sandhya. 2012. “Abortion: A Hindu Perspective.” www.vijayvaani.com/ArticleDisplay.aspx?aid=2553 (accessed June 20, 2015). Katme, A. Majid. 2015. “Islam and Abortion.” www.spuc.org.uk/about/muslim-division/prohibit (accessed June 20, 2015). Kreeft, Peter. 2007. “Human Personhood begins at Conception.” www.crossroadsinitiative.com/pics/Human_Personhood.pdf (accessed June 23, 2015). Lowen, Linda. 2015. “10 Arguments: For and Against Abortion.” http://womensissues.about.com/od/reproductiverights/a/AbortionArgu men.htm (accessed June 23, 2015). Maguire, Daniel C. 2003. Sacred Rights: The Case for Contraception and Abortion in World Religion. Oxford: Oxford University Press. Morrison, Patt. 2014. “The Coat Hanger, Symbol of Dangerous, Pre-Roe Abortions, Is Back.” http://articles.latimes.com/2014/mar/25/news/laol-the-coat-hanger-symbol-of-dangerous-preroe-abortions-is-back20140324 (accessed June 23, 2015). Murti, Vasu, and Derr, Mary Krane. 1999. “Abortion is Bad Karma: Hindu Perspectives.” www.fnsa.org/fall98/murti1.html (accessed June 20, 2015). ProCon.org. 2015. “Should Abortion be Legal?” http://abortion.procon.org/ (accessed June 23, 2015). Rastogi, Anubha. 2009. Claiming Dignity: Reproductive Rights and the Law. New Delhi: Human Rights Law Network. Saltman, Michael. 1991. The Demise of the Reasonable Man: A CrossCultural Study of a Legal Concept. New Brunswick, N.J.: Transaction Publishers. Schiff, Daniel. 2000. Abortion in Judaism. Cambridge: Cambridge University Press.

62

Chapter Four

Stephens, M., Jordens, C.F., Kerridge, I.H., and Ankeny R.A. 2010. “Religious Perspectives on Abortion and a Secular Response.” Journal of Religion and Health, 49(4): 513–35. Syed, Ibrahim B. 2012. “Abortion in Islam.” www.islamawareness.net/FamilyPlanning/Abortion/abortion3.html (accessed June 21, 2015). Tollefsen, Christopher. 2010. “Missing Persons: Engelhardt and Abortion.” In In At the Roots of Christian Bioethics, edited by Ana Smith Iltis and Mark J. Cherry, 165–180. Beverley, MA: Scrivener Press. Vitz, Daniel. 2006. “Gandhi: What He Believed about Sex, Marriage and Birth Control.” http://oldarchive.godspy.com/life/Gandhi-on-Sex-Marriage-and-BirthControl-by-Daniel-Vitz.cfm.html (accessed Jun 23, 2015).

CHAPTER FIVE WORKPLACE SEXUAL HARASSMENT AND INSTITUTIONALIZATION OF THE STATUS QUO: A CRITIQUE OF THE EXISTING LAW IN INDIA LOVELY DAS GUPTA

Introduction Defining workplace sexual harassment is crucial to dealing with the issue at the level of law and policy (Uggen and Blackstone 2004). The perception as to what is or is not sexual harassment is conditioned both by cultural prejudices and by gender biases (Yousaf 2014). The legal conceptualization of sexual harassment, therefore, need not match inherent beliefs and individual values. Studies based on qualitative data analysis have brought forth this existing divergence in the understanding of sexual harassment within and outside the legal framework (Tinkler 2008). This divergence underlines the importance of sensitizing law enforcers, as much as employers (Marshall 2003). The task of defining sexual harassment becomes more onerous when one takes into account the overwhelming discouragement that is meted out to the victim (Maypole and Skaine 1983). The signals of discouragement not only emanate from the patriarchal setup, but also from so-called feminist ideology (see, generally, Fineman 1992). This chapter introduces the problem of conceptualizing the act which amounts to sexual harassment. The subsequent sections of the chapter will review the newly enacted Workplace Sexual Harassment Law. The final section will critique the Workplace Sexual Harassment Law, emphasizing the central argument of this chapter, viz. that unless the legal fraternity breaks its allegiance to power dynamics, the victim of sexual harassment will end up fighting a losing battle and will face different levels of victimization for daring to challenge the existing status quo.

64

Chapter Five

The Act of Sexual Harassment: Defining the Standard Any attempt to define the act of sexual harassment faces hurdles in the form of societal and cultural notions that govern the status of the male as opposed to that of the female (Polansky 1980). For example, the Indian societal ethos and cultural notions perceive women as the weaker sex (Malhotra, Vanneman, and Kishor 1995). This kind of setup is ideal for male domination, and power play only makes a woman vulnerable to the risk of sexual aggression (Quinn 2002). One look at the available government data reveals that women continue to be one of the most vulnerable sections of society where sexual offenses are concerned (Singh 2014; Bhalla 2014). Against this backdrop of societal and cultural constraints, the act of sexual harassment in the workplace is likely to be measured from a patriarchal viewpoint, defeating any attempt by the state to lay down legal norms defining the said act (see, generally, Kapadia 2003). Cultural ethos also conditions the idea of justice. However, one needs to look at not only the legal aspect of “justice” but also the ground-level experiences of the victim. The reporting of incidents of sexual harassment will depend on the support the victim gets at her workplace and in her home in particular, and from society in general (Quinn 2000). For example, Japanese culture recognized sexual harassment as a socio-legal problem only in the late 1990s (Huen 2007). This instance underlines that in the absence of the recognition of sexual harassment as a problem, the effectiveness of the legal framework will be undermined. In the Indian context, this sort of societal accommodation leads to dual injury for the victim. The first injury is the one caused to the victim by the aggressor. The second is the humiliation of the victim when the first injury is completely ignored (Cho 1997–1998). The majoritarian perception of sexual harassment is further reinforced by the individual prejudices of the employer (Rutherford 2011) and the family members (Tinkler 2008). Consequently, it is likely that a gap will emerge between the standards prescribed by law and those prescribed by society as to what amounts to sexual harassment (Dougherty et al. 1996). The other challenge that such differential approaches of law and society pose is when trying to define the standard of behavior that ought to be perceived as amounting to sexual harassment. On the whole, the attempt of law to define sexual harassment in the workplace is a complicated process (Welsh et al. 2006). Adding to this complication is the question—whose perception ought the law to use to define the standards of behavior amounting to sexual

Workplace Sexual Harassment and Institutionalization of the Status Quo

65

harassment in the workplace? If defined from the perspective of the male, then, the patriarchal concerns discussed above will dictate the standards. That will effectively mean that the onus will be on the female victim to prove that she conformed to the majoritarian standards of behavior. For example, a woman’s clothing is often used as a barometer by which to judge her behavior (Puri 2006). Viewed from a male perspective, the victim will be blamed for sexual harassment. Consequently, the conduct which she claims is sexual harassment will be negated by attributing the conduct as a normal male response to an attractive woman (Srinivasan 1999). This approach clearly puts a heavy burden of proof on the victim. On the other hand, adopting a woman’s perspective leads to the problem of identifying who the woman should be. Is it possible to generalize the behavior of all women and their perceptions of what amounts to sexual harassment? For example, a lady judge, when presented the conduct of the harasser and the victim, might be conditioned by her own cultural influences. As a result, her understanding of why the victim did not lodge a complaint at the earliest opportunity might be taken as a proof of consensual interaction as opposed to harassment (Ehrlich 1999). As noted earlier, cultural conditioning is contributory to determining how an Indian woman should behave. Accordingly, the perception of the woman as a judge will be different from that of the woman as a victim (Ehrlich 1999). The alternative could be to take an objective approach by setting aside the peculiar sensitivities of the victim and adopting a cut-and-dried approach. Hence, in a given case scenario, the victim’s and the aggressor’s conducts would be judged from the perspectives of a reasonable person. Accordingly, the same reasonable person would ignore the fear, the psychological trauma, and the societal pressure that affect a victim in seeking to garner enough courage to report a case of sexual harassment (Editorials 2008). Finally, the conduct of this reasonable person would be determined according to the cultural conditioning of the employer or the members sitting in judgment (Acker 1990). The task for the lawmakers, thus, is to override these differing approaches and the problems within. The same can be done if one regards sexual harassment as a form of sexual discrimination that entails the violation of human dignity and human rights (Roth 1999). The right- and dignity-based approach humanizes the issue and ensures that the victim is treated with sensitivity, keeping in mind the peculiarity of the situation (Nagasaila 1991). Now, it becomes necessary to review the existing law relating to workplace sexual harassment of women in India to assess the approach that has been adopted toward this issue.

66

Chapter Five

Gender Equality in India: The Struggle and the Law In India, the struggle to seek redress for sexual harassment in the workplace started during the 1980s. This was in response to the growing numbers of cases of sexual harassment in the workplace experienced by women ranging from nurses to students to flight attendant to senior civil servants (Patel 2005). It was clearly a case of power play. The aggressors abused their powers by preying on women (Schneider 1985). The response of policy makers and society in general was not encouraging, but the struggle continued (Sev’er 1996). The year 1992 proved to be significant in terms of furthering the cause of women seeking redress for sexual harassment in the workplace. During the year, a Sathin (an Indian village-level government worker in the Women Development Program) was brutally gang-raped by upper-caste men in the state of Rajasthan. Prior to the brutal act she had continuously faced sexual harassment at her workplace, but no action was taken against the upper-caste aggressors who later raped her (Kapur 2008). There was clearly a collusion between the aggressors and the state government here. Considering that the victim was an employee of the state government, her harassment ought to have been redressed by the state. Unfortunately, the patriarchal orientation and the casteist approach led to the condonation of the harassment at the workplace (Bernstein 1994). The aforementioned incident led a women’s rights group, Vishaka, to file a public interest litigation in the Supreme Court of India.1 The group approached the Apex Court seeking directions, ensuring adequate relief and remedy for the victims of sexual harassment in the workplace. The Apex Court commented upon the need to ensure gender equality within Indian society. It stated that: With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and the resentment toward incidents of sexual harassment is also increasing.2

The Apex Court underlined that the act of sexual harassment was a violation of human dignity and was tantamount to discrimination based on sex/gender. The problem of sexual harassment was viewed by the Apex Court with reference to the rights guaranteed under Article 14,3 Article 15,4 Article

1 2

Vishaka & Ors v. State of Rajasthan & Ors, (1997) 6 SCC 241. Vishaka, supra note 32, para 1.

Workplace Sexual Harassment and Institutionalization of the Status Quo

67

19,5 Article 21,6 Article 42,7 Article 51 (A) (e),8 Article 51,9 and Article 25310 of the Constitution of India.11

3

The Constitution of India, Article 14: “Equality before law—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” 4 Article 15: “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth—(1) The State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth, or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition with regard to—(a) access to shops, public restaurants, hotels, and places of public entertainment or (b) the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public. (3) Nothing in this Article shall prevent the State from making any special provisions for women and children. (4) Nothing in this Article or in Clause (2) of Article 29 shall prevent the state from making special provisions for the advancement of any socially and educationally backward classes of citizens or, for the Scheduled Castes and the Scheduled Tribes.” 5 The Constitution, supra note 19. Article 19: “Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right—(a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (g) to practice any profession, or to carry on any occupation, trade or business.” 6 Article 21: “Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.” 7 Article 42: “Provision for just and humane conditions of work and maternity relief—The State shall make provision for securing just and humane conditions of work and for maternity relief.” 8 Article 51 A: “Fundamental duties—It shall be the duty of every citizen of India … (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women …” 9 Article 51: “Promotion of international peace and security—The State shall endeavor to … foster respect for international law and treaty obligations in the dealings of organized people with one another.” 10 Article 253: “Legislation for giving effect to international agreements— Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” 11 Vishaka, supra note 32, para 7.

68

Chapter Five

The Apex Court additionally acknowledged the importance of international conventions and norms in framing the guidelines to protect the dignity of women and their rights to work in a free environment.12 The Apex Court also referred to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to emphasize the urgent need for guidelines dealing with sexual harassment in the workplace. In this regard, the Apex Court referred with approval the following definition of sexual harassment in the workplace as recommended by CEDAW: Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided.13

For the Apex Court, this approach of CEDAW was deemed the best.14 The Apex Court then, went on to lay down the guidelines that would form the cornerstone of any legislation on sexual harassment of women at the workplace.15 12

Ibid., para 10. CEDAW in Vishaka, supra note 32, para 13. 14 Ibid. 15 Vishaka, supra note 32, para 17. The guidelines and norms prescribed herein are as follows: “HAVING REGARD for the definition of ‘human rights’ in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, it is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women: 1. Duty of the Employer or other responsible persons in work places and other institutions: It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. 13

Workplace Sexual Harassment and Institutionalization of the Status Quo

69

2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favors; c) sexually colored remarks; d) showing pornography; e) Any other unwelcome physical verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances where under, the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise, such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 3. Preventive Steps: All employers or persons in charge of the work place, whether in the public or private sectors, should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation, they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published, and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. (c) As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at the work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment. 4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. 5. Disciplinary Action:

70

Chapter Five

The guidelines were a reiteration of the CEDAW recommendations. The Indian judiciary, through this judgment, provided women’s rights groups and the scores of victims of sexual harassment a shot in the arm (Barak-Erez and Kothari 2011). With respect to the remedy and enforcement measures to be taken by the Apex Court, the burden was Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint Mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization to redress the complaint made by the victim. Such a complaint mechanism should ensure time-bound treatment of complaints. 7. Complaints Committee: The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support services, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any pressure or influence from the senior level, such Complaints Committees should involve a third party, either an NGO or any other body, which is familiar with the issue of sexual harassment. The Complaints Committee must develop and submit an annual report to the concerned government department comprising the complaints and mentioning the action taken in response. The employers and the person-in-charge will also report on the issue of compliance with the aforesaid guidelines including, compliance with the reports of the Complaints Committee to the Government department. 8. Workers’ Initiative: Employees should be allowed to raise issues of sexual harassment at workers’ meetings and in other appropriate forum and it should be affirmatively discussed in Employer–Employee Meetings. 9. Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. 10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and the person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. 11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in the Private Sector. 12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.”

Workplace Sexual Harassment and Institutionalization of the Status Quo

71

placed on the employer. The employer was required to provide an internal redressal mechanism with significant numbers of women representatives, as well as external members, present. The landmark judgment, however, failed to bring about a change in onthe-ground realities (DW 2013). Government organizations and public sector undertakings were forced to adopt the guidelines, but only on paper. Private organizations have largely been reluctant in implementing these guidelines (Tejan 2004). The recent incidents involving Tarun Tejpal, editor of investigative journal Tehelka, and a former Supreme Court judge, both accused of sexual harassment, underline the problem of patriarchal domination (Bhattacharya and Sengupta 2013). Both incidents involved denials and accusations against the victims and pressure tactics to dissuade them from pursuing the matter (Rao 2013). The Apex Court, post Vishaka, did apply the guidelines to grant relief to the victims of sexual harassment. For example, in the “Apparel Export Promotion Council v. A.K. Chopra”16 case, the Apex Court declared: Any action or gesture, whether directly or by implication, [that] aims at or has tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.17

It reiterated that men in power could not treat women as their personal property—to be used and abused.18 This case reiterated the commitment of the Apex Court in particular, and the Indian judiciary in general, to eliminate the menace of workplace sexual harassment (Tripathi 2008). However, as noted above, the legislative response to a specific legislation dealing with sexual harassment has been slow. In 2012, in the case of “Medha Kotwal Lele and others v. Union of India and others,”19 the Apex Court lamented the laggard attitude of the Indian legislature in enacting such legislation. The Apex Court noted: The Vishaka judgment came on 13.8.1997. Yet, 15 years after the guidelines were laid down by this Court … many women still struggle to have their most basic rights protected at workplaces.20

These strong words reflect the reality of the condition of working women in Indian society. In the same year, 2012, the “Nirbhaya rape 16

Apparel case, (1999) 1 SCC 759. Ibid. para 24. 18 Vishaka, supra note 32. 19 [2012] 9 S.C.R. 895. 20 Medha Kotwal, supra note 57, at para 1. 17

72

Chapter Five

case”21 shook the core of so-called civilized Indian society. In addition, one can safely argue that these two developments forced the Parliament to enact specific legislation to deal with workplace sexual harassment (Sridharan 2014). The fact that on December 23, 2012, the Government of India issued a notification constituting a committee to look into possibilities of amendments to the existing criminal laws dealing with sexual assault of women22 substantiates the point. The enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter called the Act), on April 22,, 2013, by the Indian Parliament was the outcome of a long and arduous struggle. However, it took a few more months before the Act and the rules framed thereunder were brought into force. The next question for all concerned is—how effective is the Act from the perspective of gender equality and human dignity?

The Sexual Harassment Act The Act and the rules were notified on December 9, 2013.23 The Act primarily embodies the Vishaka 24 guidelines. The preamble of the Act emphasizes the need to protect the dignity of women and ensure equality and a non-discriminating environment to women at their workplaces (Bothra 2014). The Act defines a victim primarily in terms of two scenarios, viz. a woman at her workplace and a woman in a domestic household.25 The ambit of the word “workplace” as per the Act includes both private and public institutions as well as the unorganized sectors.26

21

The case involved the gang rape and brutal assault of a paramedic student in a private bus in Delhi on December 16, 2012. The brutality of the crime shook civil society and led to demands from all sections of society for a reform of existing laws relating to violence against women. See “Delhi Gang Rape: Chronology of Events,” The Hindu, www.thehindu.com/news/national/delhi-gangrapechronology-of-events/article5079321.ece (accessed February 13, 2015). 22 The Justice Verma Committee report by Justice J.S. Verma, Justice (Smt.) Leila Seth and Gopal Subramaniam is available at The Hindu, www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.p df (accessed February 13, 2015). 23 Notification No. S.O. 3606 (E) dated December 9, 2013, at www.lawyerscollective.org/updates/sexual-harassment-workplace-act-rules-2013notified.html/attachment/notification (accessed February 11, 2015). 24 Vishaka, supra note 32. 25 Section 2 (a). 26 Section 2 (o).

Workplace Sexual Harassment and Institutionalization of the Status Quo

73

The Act defines employee as including both permanent as well as ad hoc workers and daily wagers. 27 Sexual harassment is defined as any unwelcome sexually colored behavior, which can be physical, verbal, or both.28 The Act also describes situations which, coupled with the explicit behavior defined, will amount to sexual harassment in the workplace.29 The Act provides for an Internal Complaints Committee (ICC) to be constituted by the employer.30 The committee is to be headed by a seniorlevel female employee. The other members will comprise employees devoted to the cause of women and an external person associated with any NGO working for women’s rights. The Act mandates that 50 percent of the members of the ICC should be women.31 For organizations with less than ten employees, the Act mandates the creation of a Local Complaints Committee (LCC). The LCC is also liable to deal with sexual harassment complaints against the employer.32 The LCC is to be headed by eminent women activists, women representatives from the area under the jurisdiction of the LCC, and two other members from an NGO working for women’s rights (one of the members should be woman).33 The Act mandates a limit of three months from the date of the incident of sexual harassment, or, in the case of a series of such incidents, from the date of the last incident, within which a complaint must be filed.34 The Act mandates that the complaint has to be in writing. The legal heirs of the victim are also permitted to file such complaints in the event of the victim’s death or in cases where the victim is incapacitated. 35 The Act requires the ICC/LCC to encourage the victim to opt for conciliation as the primary means of resolving all complaints relating to workplace sexual harassment.36 In the event of no settlement beinfg reached through conciliation, the ICC/LCC is required to proceed with the enquiry in accordance with the service rules. In the absence of such rules, the ICC/LCC should abide by the rules prescribed under the Act.37 The rules emphasize that the enquiry has to be conducted in accordance with the principles of natural justice, 27

Section 2 (f). Section 2 (n). 29 Section 3 (2). 30 Section 4 (1). 31 Section 4 (2). 32 Section 6 (1). 33 Section 7 (1). 34 Section 9 (1). 35 Section 9 (2). 36 Section 10 (1). 37 Section 11 (1). 28

74

Chapter Five

fairness, and transparency. 38 Equal opportunity should be given to the victim and the aggressor to establish their arguments. Further ex-parte orders may be issued by the ICC/LCC.39 The LCC is empowered to file a criminal complaint for domestic workers. If the terms of conciliation are violated by the aggressor, a criminal complaint can be filed by the ICC/LCC.40 The ICC/LCC is vested with powers akin to those of a civil court, under the Civil Procedure Code 1908, for the purposes of issuing summons, conducting an examination under oath, discovery, and for the production of documents. 41 The Act mandates that the enquiry be completed within a period of 90 days.42 During pendency of the enquiry, the victim or the aggressor can be transferred to other departments or the victim can be sanctioned leave for a period of up to three months.43 The victim can demand the removal of the aggressor from any supervisory role over the victim.44 Once the aggressor is proved to be at fault, the Act prescribes that the aggressor be punished as per the service rules relating to misconduct, such as deduction of wages and award of monetary compensation to the victim equivalent to such deductions.45 Other possible actions that can be taken against the aggressor as per the rules include a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments or terminating the service of the aggressor, or making the aggressor undergo counseling or carry out community service.46 The Act specifies 60 days as the period within which to implement the findings of the ICC/LCC.47 The Act provides for taking action against a woman complainant if the complaint of sexual harassment is found to be false or malicious. The punishment prescribed for such false or malicious complaints are the same as those for sexual harassment. 48 Action is also prescribed for persons serving as false witnesses.49 As per the Act, the compensation to be granted 38

Rule 7. Ibid. 40 Section 11 (1). 41 Section 11 (3). 42 Section 11 (4). 43 Section 12 (1). 44 Rule 8. 45 Section 13 (3). 46 Rule 9. 47 Section 13 (4). 48 Section 14 (1) and Rule 10. 49 Section 14 (2) and Rule 10. 39

Workplace Sexual Harassment and Institutionalization of the Status Quo

75

to the victim should account for the loss caused due to mental trauma, medical treatment(s), loss of career opportunities, and loss of income.50 The Act provides for the protection of the privacy of the victim by mandating non-disclosure of the identity of the victim. The Act specifically debars obtaining such information under the Right to Information Act 2005.51 The Act prescribes penalty for people violating the provisions relating to the implementation of the recommendations of the ICC/LCC or the privacy of the victim. 52 It also provides for appeal against the recommendations/findings of the ICC/LCC to such authorities as may be prescribed in the service rules53 or otherwise notified under the Industrial Employment (Standing Orders) Act 1946.54 The Act prescribes 90 days from the date of such recommendations being made as the period within which to file an appeal. 55 It obligates employers to ensure a safe and secure working environment for women at their workplaces, to adopt a zero-tolerance policy toward sexual harassment, to provide all assistance and help to the victim in filing a criminal complaint against the aggressor, to file a police complaint against the aggressor on behalf of the victim, to provide witness protection, to provide and facilitate logistical and other necessary support to the ICC/LCC, to conduct workshops on the issue of sexual harassment, and to undertake sensitization programs for creating awareness about sexual harassment as a misconduct. The employer should monitor the enquiries conducted by the ICC and ensure implementation of their recommendations and findings.56 The Act provides for the monitoring and implementation of the Act by the relevant government. It advises the creation of a database on incidents of sexual harassment, preparation of annual reports by the relevant complaints committees, and the development of adequate advocacy programs.57 It also prescribes penalties for the defaulting employer, which include fines and cancellation of license/registration or non-renewal of the same.58 It debars the jurisdiction of courts except on the complaint of the

50

Section 15. Section 16. 52 Section 17. 53 Section 18 (1). 54 Rule 11. 55 Section 18 (2). 56 Section 19. 57 Sections 21–25. 58 Section 26. 51

76

Chapter Five

victim or the ICC/LCC.59 The act of sexual harassment is a non-cognizable offense. 60 The Act only provides a remedy to the victim, which is in addition to the existing remedies.61

The Problems Within and the Realities The efficacy of the Act, however, needs to be judged not on what it provides but on what it fails to provide. To start with, though the Act defines sexual harassment on the lines of the Vishaka guidelines,62 it does leave scope for ambiguity. The ambiguity stems from the word “unwelcome.” As is evident and discussed above, what may be an unwelcome act for one need not be unwelcome for another. The Act does not specify whose perspectives will be given preference. For example, if one refers to the case of “Apparel Export,”63 one will find that the Apex Court looked at the matter from the perspective of the victim. The Act ought to have clarified the standard of proof to be adopted by the ICC/LCC. Critiquing this lack of clarity, Justice Verma’s report suggested adding the following explanation for defining sexual harassment: Explanation: In determining whether the behavior or act complained of is unwelcome, one of the factors to be given due weight shall be the subjective perception of the complainant.64

This inclusion of mixed standards of both objective and subjective analyses would ensure that the perspective of the individual victim is given due weightage. Even if the victim and the aggressor have been lovers, it is noted that once the relationship ends, any subsequent behavior on the part of the aggressor without the consent of the victim ought to be regarded as unwelcome behavior (Ranney 1997). The difficult question is how the victim can prove the lack of consent. The ICC/LCC should look at the effect the act of the aggressor has had on the victim—mentally and physically. Irrespective of how the victim dresses or what her personal life looks like, it is the personal experience of the victim that is important (Dolkart 1994). To implement the suggested legal standards, the ICC/LCC members should be well trained in assessing 59

Section 27 (1). Section 27 (3). 61 Section 28. 62 Vishaka, supra note 32. 63 Apparel case, supra note 52. 64 The Justice Verma, supra note 62, para 26, p. 130. 60

Workplace Sexual Harassment and Institutionalization of the Status Quo

77

and understanding evidence and should be sensitized in order to take a nuanced approach, for a pro-woman approach may end up blurring the distinction between genuine office romances and sexual harassment (Pierce and Aguinis 1997). The Act does not mandate the ICC to include a person trained in law, although the LCC must have one member with requisite training in the field of law.65 In the absence of this legal person, powers equivalent to a civil court are granted to the ICC. This accentuates the problem at the level of the ICC. The Justice Verma Committee also critiques this approach.66 The other problem with the Act concerns the provision of conciliation, purported to be at the request of the victim. This provision of the Act ignores the power of domination of the aggressor over the victim. This is also contrary to the provisions that deal with the duties of employers, mandating them to ensure a safe and secure environment for women workers and others. Thus, conciliation processes can easily be forced upon the victim, exploiting her need to stay in the job, her fear of society’s prejudicial attitude, and her fear of lack of support from her friends and family. The Justice Verma Committee recommended the deletion of this provision.67 Another glaring problem with the Act is that the ICC is constituted by the employer. Considering that the aggressor is in a powerful position to exploit internal contacts and influences against the victim, it is believed that the same will end up engendering exploitation. Considering that the victim will be in a subordinate position to the aggressor, the employer will prefer the non-problematic route (John 2014). The employer will try to maintain the status quo within the institution by suppressing the complaint or coercing the victim to go in for conciliation. Such a scenario has been apprehended by the Justice Verma Committee.68 The Act also entails provision to penalize malicious and false complaints. This is a problem, as the employer and the aggressor can misuse this provision to exploit the victim. For example, a woman in an unorganized sector will clearly not have the means to counter the manipulations that a powerful aggressor will impute to her (Vasant 2013). It is because of these concerns that the Justice Verma Committee recommended the deletion also of this provision.69

65

The Act, 2013, Rule 7 (6). The Justice Verma, supra note 62, para 23, p. 128. 67 Ibid, para 21, pp. 127–128. 68 Ibid., supra note 62, para 26, p. 131. 69 Ibid., p. 139. 66

78

Chapter Five

The Act insists that the complaint be made in writing. To give domestic workers and women workers in unorganized sectors real benefit of the Act, it is imperative to make this provision more informal. If the victim is illiterate, she should not be constrained to find and rely on someone else to frame her complaint. Considering that we are viewing the Act as protecting the dignity of women, effort has to be made to smooth access to justice.70 The Act imposes a limited period within which a victim should file the complaint. Considering the societal constraints that Indian women face before taking the decision to file complaints, the prescribed period of three months seems illusionary. There are situations where a victim might get up the courage to report the incident only after a year has elapsed. In such a situation, if the complaint is genuine, the period cited in the Act becomes a convenient excuse to not entertain the matter at all. As a result, the aggressor escapes any punishment and may be more likely to commit similar acts again in the future. Hence, the Act should look at removing or relaxing the provision of the limitation period to instill confidence in the victim. The ideal scenario as recommended by the Justice Verma Committee entails allowing the victim to file a complaint within a reasonable period.71 What constitutes a reasonable period can be determined based on the situation per case. The Act requires enquiries to be completed within the stipulated time frame of 90 days. However, it does not take into account or prescribe follow-up measures if the delay is caused by the ICC itself. Justice delayed is justice denied. Unless the victim challenges the neutrality of the ICC members or its chairperson, there is no onus on the employer to ensure timely completion of the enquiry. The Act provides for the consequences of not constituting the ICC or implementing the Act. However, there is nothing to ensure substantive compliance with the Act (Chaudhury 2008). The Act does not mention or provide for the non-withdrawal of the complaint once it is made. This is another major flaw, since during the pendency of the enquiry the victim may be pressurized to withdraw the complaint. The same act of withdrawal can then be conveniently used to victimize the already frightened victim by alleging it as proof that complaint was malicious. Hence, one can safely argue that the Act, instead of furthering the cause of women, engenders a cycle of victimization. Thus, the Act is contrary to the Vishaka72 spirit, wherein the Apex Court wanted legislators and policy makers to develop a humane framework that 70

Ibid., para 26 (f), p. 134. Ibid., supra note 62, para 26 (g), pp. 134–135. 72 Vishaka, supra note 32. 71

Workplace Sexual Harassment and Institutionalization of the Status Quo

79

could provide a free and safe workplace to women (Gupta et al. 2013). The Justice Verma Committee report laments this lacuna.73

Conclusion The previously mentioned analyses of the flaws within the Act establish that lawmakers and policy makers continue to be silent and hypocritical about the rights of working women. The Vishaka guidelines were meant to be a starting point rather than an end of the struggle to achieve equality for women at the workplace. The flaws in the Act also reflect the drawbacks in the existing women’s rights movements within the country. If all the institutions and employers were forced by activists to seriously enforce a transparent and non-discriminatory policy for women workers, the Act would perhaps have a greater chance of being humane. The recommendations of the Justice Verma Committee have clearly been ignored by lawyers who are perhaps more worried about upsetting the status quo of the powerful. The recommendations of the Justice Verma Committee with regard to setting up an independent employer tribunal comprising retired judges, eminent sociologists, and social activists is a sound model of adjudication in the given scenario. It ensures an employer-free independent regulatory body, which instills in the victims the confidence that they can obtain justice. India has abundant experience with such independent tribunals/ quasi-judicial bodies for adjudicating in specialized areas of law. Examples of such tribunals can be found in the Competition Act 2002 or the Consumer Protection Act 1986. These tribunals are permitted to use summary procedures to deal with concerned disputes. On the basis of what the Act provides currently, it is urged that the same be amended and an independent body be constituted to deal with sexual harassment complaints. Such independent tribunals will take care of the confusion that currently exists with respect to the jurisdiction of the LCC. The independent tribunal would also tackle the problem of power dynamics that a victim has to face in the existing patriarchal structure. Unless the Act is amended and fundamental changes are made to upset the existing status quo, the redressal mechanism within the Act will remain illusionary. This is the reality today, where the silence of the lawmakers and the socalled feminist protagonists continues to engender the violation of victims’ rights. 73

The Justice Verma, supra note 62, para 26, p. 129.

80

Chapter Five

References Acker, Joan. 1990. “Hierarchies, Jobs, Bodies: A Theory of Gendered Organizations.” Gender and Society, 4 (2): 139–158. Barak-Erez, Daphne, and Kothari, Jayna. 2011. “When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change.” Stanford Journal of International Law, 47(1): 175–197. Bernstein, Anita. 1994. “Law, Culture, and Harassment.” University of Pennsylvania Law Review, 142(4): 1227–1311. Bhalla, Nita. 2014. “Delhi Records Most Rapes as Crimes against Women Rise in India.” Reuters, India, July 8. http://in.reuters.com/article/2014/07/08/india-rape-crime-statsidINKBN0FD0DF20140708 (accessed January 28, 2015). Bhattacharya, Saumya, and Sengupta, Devina. 2013. “India Inc Shaken Up, Companies Start Taking Stock of Women's Safety.” Economic Times, September 1). http://articles.economictimes.indiatimes.com/2013–01– 09/news/36079368_1_sexual-harassment-women-safety-ikya-humancapital-solutions (accessed February 11, 2015). Bothra, Nidhi. 2014 (September 18). “The Sexual Harassment of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013.” Available at http://ssrn.com/abstract=2498990 (accessed February 13, 2015). Chaudhury, Paramita. 2008. “Sexual Harassment at the Workplace: Experiences with Complaints Committees.” Economic and Political Weekly, April 26—May 2: 99–106. Cho, Sumi K. 1997–1998. “Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong.” Journal of Gender Race & Justice, 1: 177–211. Dolkart, Jane L. 1994. “Hostile Environment Harassment: Equality, Objectivity, and the Shaping of Legal Standards.” Emory Law Journal, 43: 151–244. Dougherty, Thomas W., Turban, Daniel B., England Olson, Diane, Dwyer, Peggy D., and Lapreze, Melody W. 1996. “Factors Affecting Perceptions of Workplace Sexual Harassment.” Journal of Organizational Behavior, 17(5): 489–501. DW. 2013. “Indian Firms Take Little Notice of Law against Sexual Harassment.” December 16. www.dw.de/indian-firms-take-little-notice-of-law-against-sexualharassment/a-17298779 (accessed February 11, 2015).

Workplace Sexual Harassment and Institutionalization of the Status Quo

81

Editorials. 2008. “Sexual Harassment at the Workplace.” Economic and Political Weekly, 43(26/27): 6–7. Ehrlich, Susan. 1999. “Communities of Practice, Gender, and the Representation of Sexual Assault.” Language in Society, 28(2): 239– 256. Fineman, Martha Albertson. 1992. “Feminist Theory in Law: The Difference It Makes.” Columbia Journal of Gender and Law, 2: 14–23. Gupta, Divanshu, Raju, Nivedita, Nair, Shyama, Dave, Isha, Malhotra, Dhruv, Mehta, Disha, and Choudhary, Vishakha. 2013. “A Research Paper on the Brief Critical Analysis of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.” Research paper. Gandhinagar: Gujarat National Law University. Huen, Yuki W.P. 2007. “Workplace Sexual Harassment in Japan: A Review of Combating Measures Taken.” Asian Survey, 47(5): 811– 827. John, Maya. 2014. “Fears and Furies of Sexual Harassment Time to Go beyond Vishaka.” Economic & Political Weekly, 12 Apr. Kapadia, Karin (ed.). 2003. The Violence of Development: The Politics of Identity, Gender and Social Inequalities In India. Delhi: Zubaan Publications. Kapur, Naina. 2008. “Sexual Harassment and Law Reform in India.” United Nations Office on Drugs and Crime and United Nations Division for the Advancement of Women. www.un.org/womenwatch/daw/egm/vaw_legislation_2008/expertpape rs/EGMGPLVAW%20Paper%20%28Naina%20Kapur%29.pdf (accessed January 18, 2015). Malhotra, Anju, Vanneman, Reeve, and Kishor, Sunita. 1995. “Fertility, Dimensions of Patriarchy, and Development in India.” Population and Development Review, 21(2): 281–305. Marshall, Anna-Maria. 2003. “Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment.” Law & Social Inquiry, 28(3): 659–689. Maypole, Donald E., and Skaine, Rosemarie. 1983. “Sexual Harassment in the Workplace.” Social Work, 28(5): 385–390. Nagasaila, D. 1991. “Sexual Harassment as Sex Discrimination.” Economic and Political Weekly, 26(34): 1965–1967. Patel, Vibhuti. 2005. “A Brief History of the Battle against Sexual Harassment at the Workplace.” October. http://infochangeindia.org/women/analysis/a-brief-history-of-thebattle-against-sexual-harassment-at-the-workplace.html (accessed January 18, 2015).

82

Chapter Five

Pierce, Charles A., and Aguinis, Herman. 1997. “Bridging the Gap between Romantic Incubator Relationships and Sexual Harassment in Organizations.” Journal of Organizational Behavior, 18(3): 197–200. Polansky, Ellyn. 1980. “Sexual Harassment at the Workplace.” Human Rights, 8(4): 14–19, 46–47, 54. Puri, Jyoti. 2006. “Stakes and States: Sexual Discourses from New Delhi.” Feminist Review, 83: 139–148. Quinn, Beth A. 2000. “The Paradox of Complaining: Law, Humor, and Harassment in the Everyday Work World.” Law & Social Inquiry, 25(4): 1151–1185. —. 2002. “Sexual Harassment and Masculinity: The Power and Meaning of ‘Girl Watching’.” Gender and Society, 16 (3): 386–402. Ranney, Frances J. 1997. “What’s a Reasonable Woman to Do? The Judicial Rhetoric of Sexual Harassment.” NWSA Journal, Summer: 1– 22. Rao, Kavitha. 2013. “The Tarun Tejpal Case Shows Sexual Harassment is a Problem India Has To Face Up To.” The Guardian, November 29. www.theguardian.com/commentisfree/2013/nov/29/india-sexualharassment-women-workplace (accessed February 11, 2015). Roth, Louise Marie. 1999. “The Right to Privacy Is Political: Power, the Boundary between Public and Private, and Sexual Harassment.” Law & Social Inquiry, 24(1): 45–71. Rutherford, Sarah. 2011. Women’s Work, Men’s Cultures: Overcoming Resistance and Changing Organizational Cultures. Houndmills, Basingstoke: Palgrave Macmillan. Schneider, Beth E. 1985. “Approaches, Assaults, Attractions, Affairs: Policy Implications of the Sexualization of the Workplace.” Population Research and Policy Review, 4(2): 93–113. Sev’er, Aysan. 1996. “Mainstream Neglect of Sexual Harassment as a Social Problem.” The Canadian Journal of Sociology/Cahiers canadiens de sociologie, 21(2): 185–202. Singh, Mahendra. 2014. “Most Crimes against Women Take Place At Home: Report.” The Times of India., November 3. http://timesofindia.indiatimes.com/india/Most-crimes-against-womentake-place-at-home-Report/articleshow/45017766.cms (accessed January 28, 2015). Sridharan, Damyanti. 2014. “Gender Based Violence and Sexual Harassment at Workplace.” Friedrich Ebert Stiftung, July. www.fes-india.org/media/GBV-SH/Gender_Based_violence_and_ Sexual_Harassment_at_Workplace_FES_Info_India_office.pdf (accessed February 13, 2015).

Workplace Sexual Harassment and Institutionalization of the Status Quo

83

Srinivasan, Bina. 1999. “Dealing with Sexual Harassment at Workplace Impasse Continues.” Economic and Political Weekly, 34(37): 2638– 2639. Tejan, Sheba. 2004. “Sexual Harassment at the Workplace Emerging Problems and Debates.” Economic and Political Weekly, October, 9– 15: 4491–4494. Tinkler, Justine E. 2008. “People Are Too Quick to Take Offense: The Effects of Legal Information and Beliefs on Definitions of Sexual Harassment.” Law & Social Inquiry, 33(2): 417–445. Tripathi, Surya Mani. 2008. “Sexual Harassment at Work Place and the Right to Equality.” http://ssrn.com/abstract=1103159 (accessed January 1, 2015). Uggen, Christopher, and Blackstone, Amy. 2004. “Sexual Harassment as a Gendered Expression of Power.” American Sociological Review, 69(1): 64–92. Vasant, Khushita. 2013. “New Workplace Sexual Harassment Law ‘Already Out of Date’.” The Wall Street Journal, April 29. http://blogs.wsj.com/indiarealtime/2013/04/29/new-workplace-sexualharassment-law-already-out-of-date/ (accessed February 12, 2015). Welsh, Sandy, Carr, Jacquie, MacQuarrie, Barbara, and Huntley, Audrey. 2006. “‘I’m Not Thinking of It as Sexual Harassment’: Understanding Harassment across Race and Citizenship.” Gender and Society, 20(1), 87–107. Yousaf, Rizwana. 2014. “Professional Perception of the Harassment of Women in the Work Places and of its Impact on Well-being.” Journal of Research in Gender Studies, 4(1): 809–818.

CHAPTER SIX TRAJECTORIES OF JURISPRUDENCE: AT THE INTERSECTION OF THE LEGAL AND THE SOCIAL DEV PATHAK AND MD. MOSTAFA HOSAIN

Introduction As legal and sociological truisms suggest, the relationship between human behavior and law is an integral part of society. Law cannot exist without society. In fact, law underpins the idea of social order, and thereby, the platitudes of peace and harmony. Curiously, laws too have social inception. The ideals that oversee the social formation of law should be in consonance with the socio-cultural normative structures. Therefore, an examination of its laws may be the yardstick by which to assess the name and fame associated with a society. But then, the trajectories of jurisprudence bear a fraught character against this simple and ideal notion. Along with liberal views on the legal and the social aspects exists some amount of complexity. This complexity encapsulates the interests of the ruling classes and the power elites— masculinity and patriarchy. Further, it underlines the variable nature and scope of legality in accordance with diverse written and unwritten customs, traditions, usages, tacit agreements, or any other socially agreeable forms. This also introduces the complicated relationship between law and culture. Law, therefore, reflects the cultural components of a particular community along with its social identity. One of the fundamental challenges faced by social philosophy is the relationship between law and society. This is also known as the relationship between law and life (Fuller 1936). The latter, however, encapsulates both the society and the individual for the lifetime of the individual or individuals, thereby acquiring meaning in the social context. Hence, the legal-philosophical dilemma surrounds what is supreme—law, society, or even the lives of individuals. Then, society is a vexed category.

86

Chapter Six

Classical sociological theories place society above the individual. This was peculiar in Durkheim’s denial of the equivalence of the sum total of individuals to society. On the other hand, there was also a theoretical realization that it was the individual or the group that was assigned or authorized to create meanings, rules, customs, and law. The manifold departures from positivistic thinking in sociology emphasize the autonomy of these individual agencies (Mukherji 2000). Transcending the antinomies of classical sociological thinking, Bourdieu helps us understand the interplay of society and individuals (Bourdieu and Wacquant 1992). In this interplay, individual(s) or a group are bound to design law in compliance with socio-cultural codes. However, this compliance does not cancel out the possible deviations and innovations unfolded by virtue of autonomous individual agencies. In this context, the role of jurisprudence and its fraught trajectories becomes pertinent and meaningful. Jurisprudence involves the study of general theoretical questions about the nature of laws, the legal system, the relationship between law, justice, and morality, and the social nature of law. More than a century ago, Roscoe Pound formulated a series of practical objectives for sociological jurisprudence, directing the attention of lawyers toward the relationship between law and society, both on the side of methodology as well as in terms of the ad hoc problems arising from adjustments in laws (Stone 1965). Such methods and approaches are seemingly urgent at present. In fact, with a sharp increase in interdisciplinary studies, contemporary jurisprudence has attracted the contributions of non-lawyers and non-legal professionals. This has been driven by the changes and developments happening in society, which are so rapid that making laws immediately in response to such changes becomes challenging. Further, informal sources of law, such as customs, traditions, etiquette, and even superstitions, are intrinsic to socio-cultural underpinnings. Such sources affect the ways in which social relations are formed and changed. In fact, they play a role in making, amending, adding, altering, substituting, or repealing any law (Ratnapala 2009). In this regard, emphasizing and taking into account the socio-cultural components is a prerequisite. This chapter seeks to underline the significance of socio-cultural aspects through an exegetical review of the theories of jurisprudence. To sum up the objective, the chapter admits that there have been pedagogic limitations in dealing with jurisprudence in a classroom situation. A rough survey of the curriculum from across regions can help one arrive at a remarkably provocative dictum—jurisprudence is too serious to be trifled with! The onerous task of teaching and learning

Trajectories of Jurisprudence

87

jurisprudence arises from the fact that an enchanting relation between the socio-cultural and the legal seldom surfaces in legal discussions, in general. Deliberations in jurisprudence suffer from this limitation in particular. This chapter seeks to break free of the limitations of different approaches in jurisprudence, in scholarship, and in mundane legal processes. This daunting objective sensitizes the chapter to acknowledge the limits of the endeavor. While the chapter attempts to underscore the presence of socio-cultural aspects in jurisprudence, it definitely requires larger structural and pedagogic practices to bring about the eventual practical changes.

Theoretical Trajectories Jurisprudence is an imprecise term. As Dias (1985, 3) claimed: One of the most difficult problems of jurisprudence has been, and perhaps still is, to determine the exact meaning of jurisprudence, as well as to determine its province and scope.

Sometimes it refers to a body of substantive legal rules, doctrines, interpretations, and explanations that make up the legal system of a country, and therefore it has been deemed the first social science to be born (Wurzel 1917). Etymologically, the term jurisprudence has been derived from the Latin expression juris prudentia, which means “knowledge of” or “skill in law”. The French use the term to describe the interpretation of the law as provided by the court of law (Ratnapala 2009). Moreover, jurisprudence sometimes describes expositions of particular branches of law, e.g. equity jurisprudence or human rights jurisprudence; or a particular system of law, e.g. common law jurisprudence. The term jurisprudence is wrongly applied to the actual systems of law, to current views of law, or to suggestions for its amendment. It is, however, a science, more formal or analytical, rather than material. It is the science of actual or positive law. It may, therefore, be defined provisionally as “the formal science of positive law,” as claimed by Holland (1916, 13). Austin further adds that positive law is the aggregate of positive laws and the sanctioned commands of the sovereign (Gray 1892, 21). “Jurisprudence comprises philosophy of law,” says Salmond (1924, 2). “It is not like ethics, the science of what ought to be, but simply the science of what it is,” says John Cowper Gray (1892, 22). Thus, in the scheme of meanings of the term jurisprudence, the term itself refers to the foundation being laid to understand law and the relationship between law, society, and culture in an actual situation.

88

Chapter Six

Theories of jurisprudence are often the basis on which one can understand law, albeit from different perspectives. There are significant differences among these theories, but they are ultimately grounded in liberal views of law and society (Ratnapala 2009). Theories can be dissected into two broad categories, namely liberal legal theory and radical theory. Liberalism is a tradition in political and legal theory that gives primacy to individual liberty in the political and legal arrangements of society. Liberal legal theorists admit that rulers use law in their own interest, but they reject the notion that law is by nature an instrument of oppression. The theory emphasizes the establishment of the rule of law. Fuller argues that if the law is whatever the ruler commands at any given moment, it lacks the semblance of generality, and if it is not consistently observed by officials then the citizens will find it hard to know what is right and wrong according to the law. Life becomes less predictable and an essential condition of liberty is lost (Fuller 1969). Liberal thoughts are divided into two broad categories: First, the natural rights theorists— Hobbes, Locke, Grotius, and Rousseau—who argued that liberty was inherent in personhood were the pioneers of this school and held the view that self-ownership, property acquired by one’s labor, and the capacity to pursue one’s chosen life were essential to one’s existence as a person, as opposed to being another’s property (Ratnapala 2009). The other category included utilitarian thinkers, such as Bentham and Mill, and evolutionary theorists, such as Hume and Smith, who believed in the intrinsic worth of individual liberty, but made further arguments on the grounds of efficiency (Ratnapala 2009). The liberal legal theories encompassed realism, positivism, natural law theory, pure theory, and sociological jurisprudence. The theory of Karl Marx is a partial exception to the liberal legal theory, as this chapter shows subsequently.

Legal Positivism and Legal Realism To reiterate, further exegesis would highlight the covert and overt interfaces between that which is considered social and that which is legal. To begin with, legal positivism replaced the notion of divine law around the time of the Enlightenment. It aimed to identify the law as it is. It denoted that law must be obeyed irrespective of its contents, for law is the command of the sovereign, backed by force. Hobbes, Bentham, and Austin identified law with sovereignty for utilitarian reasons, and of course because it made the law more certain and knowable (Ratnapala 2009, 214). They emphasized the contents of the law instead of its merits or demerits.

Trajectories of Jurisprudence

89

Against the backdrop of legal positivism, there is a pure theory of law—a theory of positive law that is opposed to the interpretation of a special legal order. As a theory, its sole purpose is to know its subjects. It answers the question of what the law “is,” and not what it “ought to be.” The latter question is of politics, while the former is of science (Kelsen 1941). By pure, Kelsen meant that all elements impure or extraneous to the law had to be split to show the remnants of the material, which would essentially be legal (Patterson 1952). One of the main tasks has been to free the science of law from the relics of animism, which allegedly play a dangerous role whenever jurists operate using the concept of a juristic person (Kelsen 1948). Jurisprudence is a specific science of law that must be distinguished from the philosophy of justice on the one hand, and from sociology or cognition of social reality on the other (Kelsen 1941). Accordingly, all natural, moral, religious, social, and other accretions that are not strictly law have to be eliminated. There are criticisms attached to this theory, which maintain that it is abstract. Other legal theorists have argued that Kelsen’s view is incomplete. While having logical coherence, causal efficacy, and a power structure, Kelsen’s system has no regard for the actual social setting of a law. It does not explain how people feel obligated to obey legal rules; neither does it explain that not all laws are coercive by nature (Hart 1961). As a departure from legal positivism, and therefore a sense of jurisprudence, there are two approaches under “legal realism,” namely American legal realism and Scandinavian legal realism. This is a family of theories about the nature of law developed in the first half of the 20th century, in the United States and Scandinavia. The essential tenet of legal realism is that all laws are made by human beings, and thus may be subject to human foibles, frailties, and imperfections. This is akin to the idea of social constructivism, dominant in social science discussions on methodology. In a nutshell, Scandinavian realism was a reaction to the entrenched jurisprudential tradition that had profound undemocratic effects. It sought to overthrow legal positivism, and thereby create a separation between law and politics, and law and morality. It sought to create more room for democratic politics by making jurisprudence more scientific, calling it “legal science,” purged of all traces of the old order, especially the two pillars of that order, aristocracy and religion (Alexander 2002). American legal realism, emanating from the lecture delivered by Justice Holmes in 1897, propounded the view that the courts make actual law (Fuller 1936). It demonstrates that predictions about future decisions of courts could never be made on the basis of text or black letter law alone

Chapter Six

90

(Reisman 1999). This realism was an extension of political progressivism that insisted that law was deeply infused with the question of power (Alexander 2002). Forging connections between law and society, American legal realist Llewellyn advocated the power of society over the courts. He pointed out that a case in law develops more in places where social changes demand it. Realists question fundamental fallacy in traditional approaches. Judges react only to those facts of a case that are visible through the prism of legal theory and strongly argue that their decisions react to the whole situation, including irrelevant facts (Fuller 1936). .

Sociological Jurisprudence The interplay of the social and the legal acquires a more positive articulation in sociological jurisprudence (Trevino 2010). The latter grapples with the questions of whether it is possible, and if so, how and how far, to approach through empirical methods the central issues of social action that involve value judgments. The fact that lawyers are necessarily involved with ideas of obligation, values, and norms sharpen this confrontation. The basic tenet of these approaches is the congruence between facts and law. Sociological jurists suggest that the social process is important and that jurists have to look at it. Rudolf von Ihering (1818– 1892), Eugen Ehrlich (1862–1922), Jeremy Bentham (1748–1832), Hermann Kantorowicz (1877–1940), and Roscoe Pound (1870–1964) cultivated the field. Roscoe Pound, in particular, cultivated it for threequarters of a century (Stone 1965). The problem of society is to reconcile selfish with unselfish purposes, and to suppress the former when they clash with the latter. In this scheme, law does not exist for the individual as an end, but serves his/her interests while keeping in mind the general good. In order to reconcile an individual with society, it is necessary to balance various interests—of the individual, the social, and the state. According to Pound, sociological jurisprudence should ensure that the making, interpretation, and application of laws take account of social facts. He advocated a factual study of the social effects of a legal administration and guides a social investigation before legislation (Sharma 2008). It is a challenging task to balance all categories of interests. Pound provided a scheme to balance them, in case of a conflict. He maintained that interests should be on the same plane. One cannot, therefore, balance individual interest against social interest. He viewed social interests as being more important.

Trajectories of Jurisprudence

91

It is, however, significant to reflect upon the Marxist approach at this juncture. This approach focuses on improving the conditions of poor people, and indeed, conflicts of class-interest. Marx and Engels approached law with negativity (Vincent 1993). They underlined the indifference toward justice as being inherent in positivism and cast a cloak of legality around injustice. This approach reveals the inevitability of the conflict of interest along class lines. It is claimed to be a scientific approach, too, when distanced from religious dogma in its bid to assure success. The Marxist interpretation challenged the indispensability of law and foreshadowed its eventual disappearance. According to Marx, the illusion found in religion can also be found in law (Vincent 1993). Law can be read as a coercive structure representing the actual dominance of the bourgeoisie—the owners of the means of production. Law, therefore, has no autonomy whatsoever. It simply reflects the economic base. No wonder Antonio Gramsci considered law an ideology crucial to the intellectual hegemony of a capitalist society (Vincent 1993). This schema persists to a large extent among the neo-Marxists.

Radical Jurisprudence In this vein, it is worth mentioning radical jurisprudence, which poses a fundamental question to the existing structure of liberal legal theory. Radical theories focus, in particular, on the ideas of the critical legal studies movement, post-modernist legal theory, and feminist theory (Ratnapala 2009). The critical legal studies movement (CLS) challenges and overturns accepted norms and standards in legal theory and practice. It has borrowed heavily from legal realism, the school of legal thought that flourished in the 1920s and the 1930s, but is different from the views held by the legal realists. CLS was officially started in 1977 (Kelman 1987). As a movement, it peaked in the United States sometime in the first half of the 1980s. By the end of the decade, its institutional influence had started to fade rapidly. CLS movements have been enhanced and strengthened by feminist legal theory, critical race theory, and post-modernism. Some of the prominent CLS proponents are Roberto Unger, Duncan Kennedy, and Martti Koskenniemi (Altman 1990). They believe that the logic and structure attributed to law grow out of the power relationships in society. The law exists to support the interests of the party or class that forms it, and is merely a collection of beliefs and prejudices that legitimizes the injustices of society. According to CLS, law is an instrument for oppression used by the powerful to maintain their place in the hierarchy. This notion leads to the understanding that law is political and not neutral

92

Chapter Six

or value-free. Many in the CLS movement favor the overturning of the hierarchical structures of domination in modern society, and many have focused on law as a tool to achieve this goal. The CLS movement is a radical attempt to escape the crippling choice between liberalism and Marxism (Ratnapala 2009).

In the Wake of Pluralism At this juncture, it is pertinent to admit that the interface of the legal and the social adds uncanny complexity to the trajectories of jurisprudence. Particularly as we turn to acknowledge pluralism in the socio-cultural domain, there arise various kinds of challenges to the schema of legal reasoning. There are broadly two variants that lead to jurisprudence through the maze of pluralism. They are the feminist and the post-modern strands. Feminist jurisprudence posed a major challenge to liberal legal theory in the late 20th century. Unlike CLS and post-modern theories, feminism is premised on the equal treatment of women and the elimination of all forms of oppression (Ratnapala 2009). This jurisprudence underpins a struggle within liberal legal theory and its methods of reasoning, which it finds to be largely responsible for the oppressed conditions of women (Ratnapala 2009). Patricia Cain suggests four schools, namely liberal, radical, cultural, and post-modern feminism (Cain 1990). Liberal feminism stresses that women are capable of making rational decisions about their own interests and should be treated equally under the law. Cultural feminism differentiates between men and women; according to this school, the legal system fails to reflect the way women live their lives and to think about them. It is too focused on rights and individuality, which reflect the male nature. Thirdly, radical feminism has the same ideas as cultural feminism—that women are different from men. However, the difference is that cultural feminists believe that these differences are constructed through male domination (Ratnapala 2009). Catharine MacKinnon argued that feminists are mistaken in fighting for equality, which is a liberal idea. Equality implies sameness, but men and women are different (Mackinnon 1987). Fourthly, one group of feminists concurs with the post-modernists in two ways: x First, post-modernity challenges the rationalism on which mainstream Western philosophy and science are based. It denies the fact that knowledge can be objectively established and holds that all truths are contingent on subjective experiences. This group

Trajectories of Jurisprudence

93

of feminists argues that what is true from the male point of view may not be true from the female point of view. x Second, the terms “men” and “women” have no privileged meanings. Such names are given by “authorized knowers.” Therefore, these categories are social constructions by men according to the masculine point of view (Ratnapala 2009). They view law as an instrument created by males for sustaining their domination over females. In the same vein, they find that some of the practices and customs of society are male-created. Such cultures obstruct peace and harmony, and hinder equality and justice.

Law, Society and Culture In the wake of the above trajectories, ample suggestions are seen to exist of a non-linear constitution of law, the relationship between the legal and the societal, and the fraught turf of jurisprudence, and it is expedient to reflect on the relationship between law, society, and culture and its relevance today. Earlier in the 20th century, the American jurist James Carter wrote, “Law, custom, conduct and life—different names for almost the same thing—are so inseparably blended together that one cannot even be thought of without the other” (Carter 1974, 320). Law is an inseparable dimension of social relations (Mautner 2011). Such a relation between law and society is examined by the sociology of law. It helps to understand and observe how beliefs, practices, and organizations of law and human society operate. The study of law and society is an academic specialty, within the general discipline of sociology, which attempts to theoretically make sense of and explain the relationship between law and society, the social organization of legal institutions, and social interactions between all who come in contact with the legal institution and its representatives. This relationship can be examined through the foundational work of four early theorists, who showed how law induced social changes and how society’s historical progression rendered new legal conceptions (Trevino 2010). They all observed the changes in law and society. They believed that legal conceptions developed in a progressive fashion and, in support of this view, they induced positive social reforms. Among them, Cesare Becaria was the first to draw a link between law and society. He proposed seven points for the reformation of the courts and the legal system, based on social requirements. Second, Sir Henry Main (1917) provided the idea of how law evolved under the influence of sociological developments, and

94

Chapter Six

depicted the influence of social changes on law. Law initially accorded rights and duties on the basis of familial status, and later, as society progressed, it accorded rights and duties on the basis of private contracts (Trevino 2010). Third, Herbert Spencer took the view that every aspect of the universe was subject to evolutionary change. He explained the origins and evolution of law based on social evolution. He noticed that in a premodern society, laws, as customary inheritance, had their origins in the consensus of individual interests. In a developed society, law had a more secular nature with a proper legislative body. In a militant society, law originated from the absolute power of the ruler. Law in an industrial society originated from the consensus in individual interests (Trevino 2010). Fourth, William Graham Sumner opined that a positive law was more efficacious than any other form of law in regulating human behavior, and could bring about rational, imperative, and social changes only if it was compatible with the social mores that designated the right to live and what was necessary for society’s welfare (Trevino 2010). What do the above exegeses accomplish? They comprehend social values and practices that underlie the law-making process. The notion of “culture” is meant to indicate collective beliefs, values, traditions, attachments, or outlooks. Legal sociologists treated it as a key variable in considering the causes and effects of legal change (Catterrell 2006). Legal anthropology and the sociology of law deemed the relationship of law and culture as indispensable. It is widely recognized as a central issue in juristic enquiries. The connection can be well observed from the viewpoint of two main approaches, namely the historical and the constitutive schools. The historical school, in 19th-century Germany, stressed that law was the product of a nation’s culture and was embedded in the practices of the people, spontaneously (Berkowitz 2005). Friedrich Carl Von Savigny (1831), the most prominent of German jurists and founder of the historical school, spoke against the universalization and liberalization of laws beyond the customs of a given society. As a symbol of cultural inheritance, law evolves and grows like a language. It is a carrier of culture and lawyers are its interpreters (Savigny 1814). Conversely, the constitutive approach developed in America in the 1980s argued that law was a constantly developing dynamic medium and participated in the constitution of culture. Laws influenced people’s minds, practices, and social relations. The constitutive school maintained that if law supported culture, it could also impair culture’s development. As Kohler (1969, 4–7, 32) claimed:

Trajectories of Jurisprudence

95

The central function of law is to create an appropriate balance between preservation and stability on the one hand and flexibility, openness to change, and further development on the other.

Then, the admittance of plural values against a backdrop of law and society could also yield multiple challenges. In order to show the relationship between law and culture at a general level, legal theory would need conceptual resources, which would have to include the rigorous distinction to be made among different abstract types of communities (Catterrell 2006, 97). Roger Catterrell outlines six points where culture becomes central to legal inquiry. First, the relationship focuses on the developments in comparative law and “legal culture” (Ogus 2002). The fundamental question in a comparative study is: How far is the law rooted in culture and how far can it fly free? The key issue here is that of law’s dependence on or independence from culture. Second, Catterrell argues that culture becomes the most relevant question in liberal societies where multiple cultures and rules of law exist. In a multicultural society, whether or not the culture of minority groups is taken into account in the law-making process is a challenging question. The fundamental issue here is law’s recognition of culture in its conceptual structure (Catterrell 2006, 98). Third, in the relationship between law and culture, the former is regarded as being “constitutive” of culture. Feminism and critical race theory have signified the power of law to shape the meaning of social relationships and social institutions, and indeed to define personal identity. Law sometimes also shapes expectations and responsibilities (Catterrell 2006, 99). In these circumstances, law dictates culture, and demands cultures be compatible with it. Fourth, the intersection between law and culture has recently been observed in cultural defenses in criminal law. Cultural defense makes use of social customs and beliefs to explain, wholly or partly, or to justify or excuse the behavior of a defendant from criminal liability (Catterrell 2006). Fifth, “law and popular culture” is another point in the relationship. Popular culture means the representation of life in cinema, television, theater, novels, magazines, newspapers, or advertising (Silbey 2002). In this scheme, law is not understood by legal practices, doctrines, or effects; it is rather by taking the comments and opinions of the public, and presenting constructive images or narratives that law becomes comprehensible. Law thereby assumes a cultural projection. The difficulty in this is that law, as cultural projection other than juristic expertise, is multifaceted and hard to define in precise prescriptions or procedures. It also mingles legal and non-legal issues. Sixth, the link between law and culture is found in law’s role as a protector of “cultural heritage.” It

96

Chapter Six

includes the protection of historical sites, export of artworks, the use of legally regulated incentives to protect local film industries, and other enterprises to protect national or minority cultures (Catterrell 2006, 102). Thereby, it adds more socio-cultural obligations to law, to perform in consonance with contemporary manifestations of culture and society.

Conclusion What did this chapter seek to unravel by underlining the complex interface between the legal and the social in the schema of jurisprudence? This modest perusal of available theoretical trajectories showed various currents and counter-currents. The liberal theories of jurisprudence shared a broadly liberal view of the relationship between law and society. They generally agreed that law was for the public good, necessary for liberty. They operated with the view that law must be knowable and reasonably stable, facts must be ascertainable to a generally acceptable standard, and the making of and application of law must be distinguishable to an appreciable degree (Ratnapala 2009). Except for pure theory and positivism, other liberalists were more focused on societal practices. This is more notable in the case of the “sociological school.” The economic school of jurisprudence, on the other hand, called for a classless society where law would be created with the reflections of all members of society. Here, the customs and practices of a lawless society would govern rules. Radical jurisprudence contested long-standing assumptions about law. It provided analytical tools to break down stereotypes and expose the artificialities of concepts assumed natural, in law and society. These theories had a common theme: that concepts, categories, and methods of law were socially constructed, and added new dimensions to the sociology and psychology of law (Ratnapala 2009). They brought forth the issue of the social construction of legal languages and structural injustices that were embedded in law. They further contributed by bringing about awareness in society through putting forward their critiques, which played a significant role in changing laws. Both theories of jurisprudence put forward their views in order to ensure peace and harmony in society. Both looked into law—either directly or indirectly—through the lens of society and societal culture (Ratnapala 2009). The relationship between law and society is intrinsic to its nature. The approaches provided in “law over society” or “society over law” do not sustainably convey meaningful conclusions (Fuller 1936, 219–220). Therefore, in order to avoid the debate, Cohen’s principle of polarity is pertinent. Under this principle, law and society imply each other and we

Trajectories of Jurisprudence

97

cannot avoid such a reality. Denying one leads to the denial of the other. The intrinsic relation is explained by Fuller through the example of the two blades of a pair of scissors. Law ensures the betterment of society if the cultural aspects are well taken care of before the laws are made or applied. The relationship between law and culture is complex to define and determine. For a society with diverse cultures, the operation of law as a protector of all cultures becomes difficult. In certain circumstances, powerful groups influence law and their cultures dominate minority groups. Culture is certainly important for law. However, to help unravel the complexities of the law–culture relationship, it is the “community” defined in terms of a strictly limited number of ideal types that may be the most powerful concept available to legal theory (Catterrell 2006). In other words, a law-and-community approach is required because it sees law as being rooted in community life. In a nutshell, this chapter, with a modestly exhaustive perusal of the vast corpus of theories on jurisprudence, shows the relationship between law and culture, and therein its complexity and latent advocacy. The latter is aimed at both the pedagogues and the practitioners of law. This is jurisprudence, with its fraught trajectory, that enables us to deal with the socio-legal complexities of a world characterized by inimitable pluralism. For law ought not to be perceived in a linear progression. Only then, can jurisprudence be considered for context-sensitive principles, and practiced to enable justice. For pedagogues, teaching or framing a course on jurisprudence must include the socio-cultural dynamics within which law operates. Given the nature and scope, replete with socio-cultural underpinnings, there arises a question, a requirement for some soulsearching exploration, as to how to avoid jurisprudence becoming an onerous task to teach, a subsidiary entity in practice, and a boring thing to learn.

References Alexander, G. 2002. “Comparing the Two Legal Realisms—American and Scandinavian. The American Journal of Comparative Law, 50(1): 131– 174. Altman, A. 1990. Critical Legal Studies: A Liberal Critique. Princeton, N.J.: Princeton University Press. Berkowitz, R. 2005. The Gift of Science: Leibniz and Modern Legal Tradition. Cambridge, MA: President of Fellows of Harvard College. Bourdieu, P., and Wacquant, L. 1992. An Invitation to Reflexive Sociology. Chicago: University of Chicago press.

98

Chapter Six

Cain, P. 1990. “Feminism and the Limits of Equality.” Georgia Law Review, 24: 829–847. Carter, J. 1974. Law: Its Origin, Growth and Function. New York: Da Capo Press. Catterrell, R. 2006. Law, Culture and Society: Legal Ideas in the Mirror of Social Theory. Farnham: Ashgate Publishing Limited. Dias, R. 1985. Jurisprudence. London: Butterworths. Fuller, L.L. 1936. “American Legal Realism.” Proceedings of the American Philosophical Society, 76(2): 217–218. Fuller, L. 1969. The Morality of Law. New Haven, CT: Yale University Press. Gray, J. 1892. “Definitions and Questions in Jurisprudence.” Harvard Law Review, 6(1): 21–35. Hart, H. 1961. The Concept of Law. Oxford: Clarendon Press. Holland, T. 1916. Elements of Jurisprudence. Oxford: Clarendon Press. Kelman, M. 1987. A Guide to Critical Legal Studies. Cambridge, MA: President and Fellows of Harvard College. Kelsen, H. 1941. “The Pure Theory of Law and Analytical Jurisprudence.” Harvard Law Review, 55(1): 44–70. —. 1948. “Law, State and Justice in the Pure Theory of Law.” The Yale Law Journal, 57(3): 377–390. Kohler, J. 1969. Philosophy of Law. New York: Adalbert Albrecht Trans. Mackinnon, C. 1987. Feminism Unmodified: Discourses on Life and Law. Cambridge, MA: Harvard University Press. Mautner, M. 2011. “Three Approaches to Law and Culture.” Cornell Law Review, 96(4): 839–868. Mukherji, P. 2000. Methodology in Social Research: Dilemmas and Perspectives. Delhi: Sage. Ogus, A. 2002. “The Economic Basis of Legal Culture: Networks and Monopolization.” Oxford Journal of Legal Studies, 22(3): 419–434. Patterson, E. (1952). “Hans Kelsen and His Pure Theory of Law.” California Law Review, 40(1): 5–11. Ratnapala, S. 2009. Jurisprudence. Cambridge: Cambridge University Press. Reisman, M. 1999. “Theory about Law: Jurisprudence for a Free Society.” Yale Law Journal, 108(5): 935–939. Salmond, J. 1924. Jurisprudence. London: Sweet and Maxwell. Savigny, F. 1814. On the Vocation of Our Age for Legislation and Jurisprudence. London: Abraham Hayward Translation. Sharma, G. 2008. An Introduction to Legal Theories. New Delhi: Deep & Deep Publications Pvt.

Trajectories of Jurisprudence

99

Silbey, J. 2002. “What We Do When We Do Law and Popular Culture.” Law and Social Inquiry, 27(1): 139–168. Stone, J. 1965. “Roscoe Pound and Sociological Jurisprudence.” Harvard Law Review, 78(8): 1578–1584. Trevino, J. 2010. The Sociology of Law: Classical and Contemporary Perspective. Piscataway, N.J.: Transaction Publishers. Vincent, A. 1993. “Marx and Law.” Journal of Law and Society, 20(4): 371–397. Wurzel, K.G. 1917. “Methods of Judicial Thinking.” In Science of Legal Method: Selected Essays, edited by E. Bruncken and L.B. Register, 289–368. Boston: Boston Book Company.

CHAPTER SEVEN THE RIGHTS OF UNWED MOTHERS VERSUS THE RIGHTS OF UNWANTED CHILDREN IN INDIA: A CRITICAL LEGAL ANALYSIS DEBARATI HALDER

Introduction In India, more often than not, married women are discriminated against in society if they are unable to produce heirs, especially male heirs (Halder and Karuppannan 2008).1 When a woman fails to conceive a child, she is stigmatized as one who may cast the evil eye on other women’s children or destroy the prospects of reproduction for a newly married couple (Balen and Bos 2009). In many Indian homes, women are encouraged to have more children, especially if there are no male children in the family. Married women with children are considered an auspicious presence during many religious functions as well (Widge 2001). The situation reverses completely when a single, unmarried woman conceives outside marriage, as a result of a physical relationship, rape, or even her profession as a prostitute. Unwed mothers are considered taboo in their own families and by society. Children of unwed mothers are not recognized by society either (Bos 2007), and they are discriminated against during school admission processes or when among relatives and friends.2 Unwed mothers can be categorized as: (i) Women who conceived and gave birth to children when having a love affair, where the woman had 1

Paper also accepted for presentation on the 25th anniversary of the founding of the Journal of Law and Religion, October 23–25, 2008, Hamline University School of Law, St. Paul, Minnesota, U.S.A. 2 This observation was obtained by the author while serving as a panel advocate for the Child Welfare Committee, Tirunelveli.

102

Chapter Seven

consensual sexual intercourse with the lover and was later dumped by him; (ii) Rape victims who conceived and gave birth to children out of nonconsensual sexual intercourse; and (iii) Prostitutes, who consider childbirth as an “occupational hazard.” In this chapter, I aim to restrict my discussions to the first category of unwed mothers, namely the victims of broken love affairs who have had consensual, physical, penetrative sexual relationships, and then may have been dumped by their lovers. In Indian society, such women are considered unchaste, since they prefer lust and bodily attraction over emotional bonding, and at times as women with no moral values and minimal awareness of sexual health habits. They are easily cheated by men who target women only to enjoy their bodies. Such unwed mothers often wish to abandon their unwanted children, mostly since they live in fear of social ostracism. 3 One very good example is Queen Kunti, the mythological character from the epic Mahabharata, who used the secret mantra to invite the god Surya to be her lover. She mated with him and begot a son, Karna. She had to abandon the unwanted child, as she was not married to Surya. She could not speak about this with her family. This chapter will emphasize a particular issue, namely whether unwed mothers have the right to abandon their unwanted children. It may be noted that as per the existing laws, abandoned children are generally seen as having been intentionally and forcefully rejected by their mothers.4 Any person who abandons a child is deemed a criminal who has vigorously violated the child’s rights to a healthy family life and prioritized his/her selfish interests. But it needs to be noted that the word “abandonment,” as used in this chapter with respect to unwed mothers’ rights, is used as per the linguistic meaning of the term, i.e. one who “ceases to support or look after someone” or a “deserter.”5 This is specifically done to cast the term “abandonment” in a softer light, which may be expanded to include the “surrendering” of the child and must be understood as an act of giving up the child for a mother’s own reasons, including lack of intent to care for the child. Even though the Juvenile Justice (Care and Protection of Children) Act (J.J. Act), 2006, as well as the J.J. Rules, attach separate meanings to the term “surrendering,” 6 I urge readers to understand the 3

Ibid. According to S.2(a) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, “abandoned” means an unaccompanied and deserted child who is declared abandoned by the Committee after due inquiry. 5 See the meaning of the term “abandon” in the Oxford Dictionary, www.oxforddictionaries.com/definition/english/abandon (accessed February 1, 2015). 6 This is discussed later. 4

The Rights of Unwed Mothers versus the Rights of Unwanted Children 103

term “abandonment” in the light of the linguistic meanings explained above. I argue that unwed mothers should not always be seen in a negative light, considering their own unfortunate circumstances. However, such a question may invariably invite another question in retaliation from the perspective of the child’s rights: Can unwanted children claim their biological mother’s love and care as their fundamental rights? As the existing literature on child rights in India suggests, the issue of unwed mothers’ choice to abandon their children and the children’s rights to proper love, affection, and overall care from parents has been discussed mostly from the perspective of child adoption and the reasons for the same (Halder and Karuppannan 2009; Ghosh 2013). In this connection, it is important to mention the “surrendered children”7 who are one of the prime categories of children in need of care and protection as specified by the J.J. Act 2000 (amended in 2006). In the legal literature, unwed mothers’ right to give up their children is recognized only when the children are “surrendered” for the purpose of adoption through a proper mechanism.8 However, literature on issues related to unwed mothers’ right to abandon their children, against the backdrop of unwanted children’s right to receiving love and affection from their biological mothers—either from a sociological perspective or from the legal, criminological, or women’s rights viewpoints in India—is scarce. This chapter aims to fill this vacuum by framing four particular questions: 1. Child rights laws criminalize the abandoning of children include S.317 of the Indian Penal Code (IPC), which penalizes the abandoning of children under 12 years of age, and S.23 of the J.J. Act, 2000 (amended in 2006), which prescribes punishment for assault, abandonment, and negligence of children in care. Can these laws be effective in dealing with the rights of minor, unwed 7 According to S.2Q of the Juvenile Justice (Care and Protection of Children) Rules, 2007, “surrendered children” refers to those children who, in the opinion of the Committee, are relinquished on account of physical, emotional, and social factors beyond the control of the parents or guardians. 8 S33(.4) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, expands the meaning of surrendered children to include the children of unwed mothers while explaining the adoption procedure for surrendered children by stating “(a) a surrendered child is one who had been declared as such after due process of inquiry by the Committee and in order to be declared legally free for adoption, a ‘surrendered’ child shall be any of the following: (i) born as a consequence of non-consensual relationship; (ii) born of an unwed mother or out of wedlock; …”

104

Chapter Seven

mothers, especially when the law cannot overburden a “child” with the responsibility of caring for a baby? 2. Can the rights of the unwanted babies of unwed mothers supersede the rights of the mothers themselves? 3. Would the right to abandon unwanted children be considered an extended right to “privacy” and the right to leave the woman “alone,” as has been emphasized by Article 21 of the Constitution of India? 4. When would such abandonment by unwed mothers be called a criminal offense? The arguments and conclusions built up in this chapter are based on multiple methodologies, including doctrinal and observational methods. This chapter is divided into four parts. The introduction is followed by a discussion of unwed mothers’ right to abandon unwanted children. I attempt to bring out specific distinguishing arguments for the adult, as well as the minor, unwed mothers here and discuss the criminalities involved in the act of abandoning unwanted children. The third part discusses the right of the unwanted children to receive love and care from their biological mothers (unwed mothers) and alternative solutions. This chapter will build up contradictory arguments depending on the rights of both the unwed mothers and their unwanted children, only to arrive at a positive or negative conclusion, which is elaborated in the final part of the chapter.

Unwed Mothers: A Bitter Result and a Sad Ending to Love Stories In Indian societies, love affairs between two heterosexual human beings may be classified as an arranged love affair, an independent love affair, or a “love jihad.” In arranged love affairs, romantic feelings between the partners and their closeness are slowly encouraged by the two families involved, and the partners themselves (Gupta 1976). In such cases, the families or the parents may wish to get the couple married after an initial meeting or prolonged courtship. Due to the closeness of the families, any pregnancy before the wedding due to secret pre-marriage physical contact between the prospective bride and groom may be accepted by the families on the condition that they get married within the shortest period possible, post-detection of the pregnancy. Independent love affairs, on the other hand, may involve several other types of romantic involvement, including secret love affairs between teenagers or between a teenage girl and a mature man, which may also involve a physical

The Rights of Unwed Mothers versus the Rights of Unwanted Children 105

relationship, a romantic, consensual, sexual relationship between two unmarried adults, and a romantic sexual relationship of an adulterous nature. In such cases, the possibility of a woman conceiving and becoming an unwed mother is higher than in the other two types of romantic love affair discussed above. This may be because the woman is confident of her lover and that is enough to enable her to enter into a consensual sexual relationship.9 “Love Jihad” is a recent phenomenon, whereby the feeling of love is instilled in the woman with a vested interest motivated by either political or religious factors (Gupta 2009). Even though the concept of “Love Jihad” has been confined by the media and researchers to religious communities such as the Hindus and the Muslims, or the Christians and the Muslims, in some cases, the scope of the concept may be expanded to include inter-caste romantic love affairs as well. Such methods of “unethical infiltration” may result in girls and women becoming unwed mothers and being forced to discard their children because they fear the backlash from society and their families. As discussed above, the first category of romantic love affairs may not always result in a bitter ending, so there will be fewer unwed mothers abandoning unwanted children. In the latter categories, however, the ratio of abandonment is higher because of the difficulties of rearing unwanted children in male-dominated societies. For example, the majority of the educational institutions demand the father’s name during admission procedures. Even when applying for government-prescribed documents for the child, including passports, bank documents, or an identity card such as the Aadhar card, unwed mothers may have to undergo tremendous embarrassment when proving that they are single parents. The situation is quite similar to the case of single mothers who try to get sole custody of their children (Halder 2013). In these situations, unwed mothers are generally left with two options: To abandon the child, or to maintain the child with single-parent status and voluntarily accept the embarrassment for the sake of the child. However, considering the fact that a woman has the right to live with dignity and maintain her privacy, the act of abandoning the unwanted child may be considered a right which falls 9

Also, consider a recent case where the Supreme Court held that, in the case of live-in relationships, the man is bound to pay a certain amount as “maintenance” to the woman and her children born out of wedlock as a result of the relationship. For more, see Amit Anand Chaudhury (2015), “Supreme Court Upholds Maintenance for Live-In Partners.” The Times of India, May 6, 2015. http://timesofindia.indiatimes.com/india/Supreme-Court-upholds-maintenance-forlive-in-partners/articleshow/47169351.cms (accessed on 5 July, 2015).

106

Chapter Seven

within the extended scope of the Right to Life, as guaranteed by Article 21 of the Indian Constitution. It must be noted that women who become unwed mothers due to bitter love affairs should be given a chance to live their own lives. Here, the question of abandoning the unwanted child, as a right for the unwed mother, becomes a crucial issue not only for the unwed mother herself, but also for the abandoned child.

Types of Abandonment and Their Possible Reasons Each year, the Child Welfare Committees (CWC) of various Indian states receive hundreds of children (IBTimes Staff reporter 2013), a majority of whom are unwanted by “unwed mothers.”10 In these CWCs, women may either turn up to give up their babies with valid reasons, or simply leave the babies without anyone’s knowledge, in cradles kept in specific locations—including charity organizations, hospitals, and noon meal centers—under the Cradle Baby Scheme (CBS).11 When a woman takes the first step, she may be counseled by the CWC members or by the volunteers of Childline (SOP 2009). 12 However, in most cases, unwed mothers prefer to leave the children despite counseling. It may be noted that even outside the CWCs, many registered children’s homes or hospitals may have cradles stationed under the CBS plan, where unwanted babies can be left in anticipation that the child will be taken care of. The situation may be explained by the following examples: x As reported by NDTV (PTI 2011) in 2011, a newborn girl was found dead in a dustbin by a wastepaper collector in the Erode District of Tamil Nadu. She was allegedly thrown in a plastic bag by a woman. The report did not mention whether any investigation was carried out in this case or if this was an unwanted child of an unwed mother; but the baby was declared by the doctors who later examined her to have already been dead when she was left there. x In the case of “Vidya v. the Government of India & others,” W.P. (C) No. 33591 of 2008, an unwed mother preferred to abandon her unwanted child. She handed over the child to the CWC committee 10 This is from the personal experience of the author as a panel advocate with the Child Welfare Committee, Tirunelveli. 11 For more information on the Cradle Baby Scheme, see ‘THE INTEGRATED CHILD PROTECTION SCHEME (ICPS)—A Centrally Sponsored Scheme of Government–Civil Society Partnership.” www.wcd.nic.in/childprot/drafticps.pdf (accessed on February 2, 2015). 12 See, for more information on this, footnote 152.

The Rights of Unwed Mothers versus the Rights of Unwanted Children 107

after following the relinquishing procedures, as established by the Central Adoption Resource Authority (CARA) guidelines and as per the Juvenile Justice Act, 2000 (amended in 2006), and Juvenile Justice (Care and Protection of Children) Rules, 2007. However, in this case, the unwed mother successfully won her right to abandon the child without letting the legal procedures infringe her privacy. As can be seen from the above examples, there are two ways of abandoning unwanted babies: (i) Leaving them in public places or deserted areas so that no one is able to enquire about the mother of the baby, unless the police undertake a proper investigation. This means that the unwed mother need not be concerned about the baby’s future. The unwanted child is handed over to a children’s home by members of civil society or the police, who may come across it; (ii) Leaving the unwanted child with any of the CWCs after following the legal procedures for relinquishing all rights over the baby. If the step marked (i) are resorted to, then the unwed mother may attract penal provisions. The step marked (ii) frees the unwed mother from any legal responsibility, including criminal liability. Among the many reasons for abandoning babies in hazardous environments is one highlighted by activist Achyuta Rao (Pagdala 2013). Even though research may show that the number of female babies abandoned is considerably higher than the number of male babies (Bedi and Srinivasan 2010), the following reasons are noteworthy when it comes to abandonment of babies irrespective of their genders:

Fear of Society Unwed mothers (including adult and minor women) often fear social taboos and society’s backlash against thems and their unwanted children, once they understand that the fathers will deny all responsibility. Such fears are often found to be rooted in women’s general lack of awareness of sexual health and hygiene. They may also result from the unwed mother never having expected that physical intimacy with her lover would lead to pregnancy.13 Once she becomes pregnant, it is found that, often enough, she fails to comprehend it until the second or third trimester, when abortion becomes hazardous and the woman is left with no other option but to deliver the child. This may again relate to the woman’s hesitation in speaking about her relationship with her lover to her parents or any other family member because she fears being killed, confined, or barred from 13

This happens mostly when girls do not receive proper sex education in schools or are not told about sexual hygiene by their mothers or other caregivers.

108

Chapter Seven

meeting the lover. Adultery may also generate a fear of society. Often, a woman is falsely promised marriage by her already married lover. The woman may not opt for an abortion on discovering her pregnancy but may hope that her lover will finally divorce his wife and marry her, or that he may help to offer social recognition to the child born out of this illicit relationship.14 When the lover finally dumps the woman, she may have no other choice but to give birth and later abandon the child since she cannot name the father or seek someone who will willingly agree to father the child. Unwed mothers’ fears extend not just to ostracism but to being killed (“honor killings”) by family members, since unwed mothers are not welcome in most societies.

Financial Incapacity to Maintain the Child Among all the reasons to abandon an unwanted child, another key reason could be the financial incapacity of the unwed mother to maintain and rear the child (Giji 2011). This is often seen as a key reason, especially when the woman hails from an underprivileged and socio-economically backward community, is a minor, or is dependent on the male members in her family—her father or brother (Giji 2011). In this modern era, medical technological advancements may encourage many women to become unwed mothers. Such independent-spirited women may prefer to have babies on their own to experience motherhood. There are also instances where financially independent women have preferred to keep the child in spite of a bitter love affair, or have finally got married to the lover after the birth of the child. This is especially so where the man in question is forced to accept the responsibilities of the unwed mother as his spouse and the child as his own biological child, after much persuasion from families, peers, and society. However, this is not always the case for women coming from poor backgrounds or more orthodox backgrounds, where they are dependent on the males in their families. This author came across cases where parents of unwed mothers attempted to give away their unwanted children for adoption in a camouflaged, child-trafficking fashion (i.e. handing over the baby to the prospective adoptive parents after receiving hefty sums of money from the latter, in the name of donation).15 Unwed mothers, in such cases, were possibly forced to give up their babies when neither their parents, nor their family members, or even society as a whole, would help them take care of the children. They would possibly not be 14

This is from the personal experience of the author as a panel advocate with the Child Welfare Committee, Tirunelveli. 15 Ibid.

The Rights of Unwed Mothers versus the Rights of Unwanted Children 109

eligible for any job prospects or education opportunities once their status as unwed mothers became known.

Hatred toward the Father of the Baby A financially independent woman may consider giving birth to a child born out of a love affair, even though she may be an unwed mother. However, it has been observed that if the love affair ends on a bitter note, the unwed mother may prefer to abandon the child because of her hatred toward the father. According to her, a child born out of such a bitter love affair will always remind her of the man who dumped her after making false promises. There are instances of such unwed mothers feeling that they were being substituted for their lover’s spouse (in cases where the lover was already married), if the latter is unable to produce heirs. There are numerous instances of unwed mothers leaving their unwanted children at the residence of the man who fathered the baby.16 Sometimes, an unwed mother, irrespective of her financial status and age, may be compelled to abandon her child due to the deep hatred felt by her family toward the father of the child or toward the community to which the father belongs.17

Psychological Detachment Toward the Baby and the Need to Be Free of Any “Burden” Unwed mothers, especially in the age range of 13–25 years, may feel that having a baby is a burden on their independent, carefree lives. This is especially the case with women or girls who are unaware of sexual reproduction and their own progressing pregnancies.18 Girls and women with supportive families may feel psychologically detached from their unwanted children, when the elders in the family—mothers, grandmothers, or aunts—take care of such unwanted children from birth. There are cases where unwed mothers have preferred to abandon their children because they felt no emotional attachment to their baby, even when marriage alliances were made and the prospective groom or their families were ready to accept the unwanted child.

16

Ibid. Ibid. 18 This information was provided by a Childline volunteer, who prefers to remain anonymous. 17

110

Chapter Seven

Unwed Mothers’ Right to Abandon Children All the above factors influencing the abandonment of an unwanted child by an unwed mother indicate different contrasting rights for women. Abandoning a child, even if unwanted, may be seen as a huge abuse of a child’s right to receiving his mother’s care and affection. However, if this is seen in the light of certain rights that I will discuss here, women’s rights activists and children’s rights activists may no longer consider the abandonment of an unwanted child by an unwed mother as a violation of the child’s rights.

The Right of a Minor, Unwed Mother to a Hassle-Free Childhood, Education, and Health The right to abandon an unwanted child, or “surrendering,”19 becomes a crucial right for a minor, unwed mother who may have delivered the child because of a consensual sexual relationship with a man whom she had loved, but from whom she later had to separate due to the relationship ending on a bitter note. This is especially so when the unwed mother is a minor, because Indian laws have almost always considered such pregnancies as consequences of rape or non-consensual sexual relationships due to the maturity levels of the teenage mother.20 Similarly, consider the J.J. Act 2000 (amended in 2006) and the J.J. Rules 2007, where special provisions have been enacted, such as Chapter IV in what was earlier titled “Rehabilitation and Social Reintegration.” Procedural guidelines have been mentioned for dealing with cases of unwanted children of minor, unwed mothers. There also exist decisions of the courts in India where judges have advocated the separation of the baby and the

19

See footnotes 132 and 133. Consider Sections 3 (penetrative sexual assault) and 5 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act, 2012, and the careful drafting of the laws, whereby the child victim is relieved from the burden of proving the presence of a consensus for having a sexual relationship. However, there are several contrasting judgements affirming the rights of a minor girl against medical termination of her pregnancy and allowing her to give birth to her child. For example, see “V. Krishnan v. G. Rajan alias Madipu Rajan and another,” decided on Thursday, December 2, 1993, in the High Court of Madras, H.C.M.P. No. 264 of 1993/H.C.P. No. 1450 of 1993. http://indiankanoon.org/doc/1452879/ (accessed January 25, 2017). 20

The Rights of Unwed Mothers versus the Rights of Unwanted Children 111

minor, unwed mother, for the welfare of both.21 In cases where the minor mother wished to get back to previous life, she had to be given her fundamental right to continue her education. Children’s rights and laws in India have emphasized two aspects in such cases: (i) The Physical and mental well-being of the teenage mother; (ii) Her right to continue her education, and the right to food, shelter, and proper care. It may not be possible to uphold these rights when she is over-burdened with another child, i.e., her own baby. In such a case, she would probably have to leave her baby for her own welfare. It is for this very reason that whenever any registered child’s rights agency or the CWC of any state or district come to know of such teenage pregnancies or unwed teen-mothers, they prefer to send both “children” to shelter homes, preferably in different care systems after obtaining proper consent from the unwed, minor mother and her legal guardians (in the case that she is accompanied by them).22 It becomes an implied right for the minor, unwed mother to abandon her unwanted child in the care of government-recognized agencies and lead her own life as a “child,” who may be in need of care and protection herself.

The Right to Live without External Threat to Life or Privacy Unwed mothers derive their right to abandon their unwanted children from the CARA guidelines regarding pre-adoption procedures. An unwed mother of any type, as mentioned in the introduction to this chapter, may be considered a “fit guardian” to give up her child for adoption. 23 However, such a right may become absolute only when the unwed mother relinquishes her rights over the baby after executing the deed of surrender to the CWC.24 While this is the general norm for establishing the right to abandon an unwanted child, many unwed mothers may adopt the method of leaving the baby in a public place, on a road, in a dustbin, or at a hospital. Not all cases of this nature can be monitored by the police. As a 21

For example, see “Shree Tiles Chowk v. Child Welfare Committee, Ahmednagar & others,” wp586413.odt, http://indiankanoon.org/doc/35194351/ (accessed January 25, 2017). 22 In such a case, the unwed, minor mother may be sent to a children’s home and the unwanted baby either may be kept in the same home but in the care of personnel from a different department specifically tasked with looking after babies, or may be made ready for adoption after obtaining the proper permission from the mother. 23 See footnote 152. 24 See S. 33(c) of the Juvenile Justice (Care and Protection of Children), Rules, 2007.

112

Chapter Seven

result, the abandonment of babies in public places is noted mostly by philanthropic organizations or passers-by, who in turn inform the police. As discussed above, in a majority of such cases, the unwed mother may be a woman with no family support following a love affair gone wrong which has resulted in unwanted childbirth. Abandoning the child would have resulted simply because she did not want any more hassles in the future; or if she was not aware of CWCs, where she could have left the baby; or if she was extremely fearful about her own safety or privacy. Leaving newborn babies, infants, and toddlers in public places may attract penal provisions in India.25 Attaching similar legal liabilities to a poor, uneducated, unaware, and financially unstable unwed mother, who takes up such a method of abandoning her child, may invite questions that scrutinize the woman’s rights to liberty and to live a life with dignity. This is especially so when an unwed mother runs risks to her own life, as well as that of her baby (in cases where she wants to keep her baby), if she physically takes the unwanted child to the CWC or any other children’s home to hand it over. The right to privacy and safety becomes an enveloping question for many unwed mothers in such situations, especially because the courts or other civil citizens hold them responsible for violating basic human rights, as well as their child’s rights. However, considering adult human beings are capable of taking a decision to engage in a consensual sexual relationship with a lover and remain fully aware of the risks involved in sexual relationships and the unpredictable nature of love affairs, criminal liability for negligence and leaving the child in danger may be seen to overlap with the rights of unwed mothers.

Balancing the Personal Right to “Live As I Wish” and the Duty toward the Welfare of the Child As discussed in the above paragraphs, the right to abandon an unwanted child may be considered as an ancillary right to the right to live with dignity and the right to liberty only when the adult, unwed mother considers the welfare of the unwanted child as well. If the unwed mother follows proper steps to ensure that the abandonment of her unwanted child will not harm the child or in any way affect the emotional and physical growth of the child, the mother can enjoy her right to freedom and dignity, as enshrined in Article 21 of the Constitution. However, when undergoing this process of relinquishing her rights, the mother may ensure that her

25

See discussions in this regard in the introductory part of the chapter.

The Rights of Unwed Mothers versus the Rights of Unwanted Children 113

privacy is not infringed upon by the police, the CWC, or any other voluntary organization, through the exposure of her name to anyone.

The Unwanted Child’s Right to Receive Its Mother’s Affection As may be understood from the discussions in the above paragraphs, unwed mothers may claim an absolute right to be left alone and the right to dignity only when the abandonment becomes necessary as per the law or when the abandonment has been undertaken as per established procedures. However, when, by such procedures, an unwed mother takes up her right to live with dignity, can the abandoned child also claim the right to not be abandoned? This rests on the fact that the birth of the child to an unwed mother is not by the choice of the baby, but is due the actions of the mother. Such unwanted children may go through tremendous trauma as a result of separation from their mother, especially when they are in the age group of 3–7 years.26 They do not fall into the category of those children whose consent may be necessary for pre-adoption procedures, including the relinquishment procedure undertaken by their mothers,27 nor are they immature enough to not understand or feel the sudden absence of their mother from their lives. Such children may find it difficult to adjust to life with their adoptee parents. They may also feel traumatized in their new homes since they may not be used to staying with strangers. In such cases, the child’s right to receive the love and care of their biological mother may become an issue, which may conflict with their mother’s right to abandon an unwanted children. It is unfortunate that there are few opportunities available to the Indian courts to test this clashing of rights. However, when unwed mothers who are not willing to take care of their unwanted children do emerge, it may be understood that their right to abandon their unwanted child will supersede the unwanted child’s right to receive the love and care of their biological mother. Such a situation occurs when the laws, especially the Juvenile Justice (Care and Protection of Children) Act, the Constitutional provision guaranteeing the Right to Free and Compulsory 26

This is from the personal experience of the author as a panel advocate with the Child Welfare Committee, Tirunelveli. 27 See discussions in this regard in the guidance for dealing with specific categories of children in need of care and protection in Chapter 4 of the Standard Operating Procedure for Child Welfare Committees under the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by the Juvenile Justice (Care and Protection of Children) Act, 2006. http://wcd.nic.in/icps/SOPdtd01072011.pdf (accessed 1 February, 2015).

114

Chapter Seven

Education to Children under Article 21A, and the Right against Exploitation, seek to remove the possibility of child abuse by unfit guardians. Unwed mothers who abandon their unwanted children in public places or in hazardous situations cannot be considered fit guardians,28 and therefore may not fall within the scope of the child’s right to receive its biological mother’s love and care. The law does not allow a child to be handed back to an unwed mother who has abandoned it, even after repentance. Such instances are very rare but, considering a child’s emotional and physical well-being as the prime target of a welfare state, such children are mostly given up for adoption or put in children’s homes with limited access to their biological mother.29 However, neither the child nor the unwed mother can claim to retain their rights over each other once the unwed mother surrenders the child to the CWC through a proper mechanism. 30 In such cases, obviously the mother’s right to abandon the child supersedes the child’s right to receive the love and care of his/her biological mother and the child gets a new right to receive the care and protection of the state or of the adoptee parents. However, it would be wrong to say that such precedence of an adult’s right over a minor’s considers only the interest of the adult. A clear reading of Article 39 (e) and (f) of the Constitution 31 implies that the provisions in the Juvenile Justice (Care and Protection of Children) Act, 2000 (amended in 2006), and the ancillary rules, as well as the Standard Operating Procedures for the CWC, show that such superseding of rights actually benefits the child more than the adult.

Conclusion and Suggestion Due to societal norms, established rules, and principles, it may become essential to separate the mother and the child for their welfare. However, such separations are often the result of selfish claims by an adult to the right to be left alone, after giving birth to an unwanted child. Therefore, 28

Ibid. Ibid. 30 See S. 33 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which speaks about adoption. Also see “Laxmikant Pandey v. Union Of India & Ors” 1992 AIR 118, 1991 SCR (3) 568. 31 Art. 39 (e) ensures the state’s responsibility toward the prevention of abuse of health and strength of individuals, including children. Art. 39 (f) ensures the state’s responsibility toward providing children the opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and protection from exploitation and from moral and material abandonment. 29

The Rights of Unwed Mothers versus the Rights of Unwanted Children 115

this right may not be easily granted to an unwed mother, especially when said mother has consciously decided to give birth to the baby. However, it needs to be remembered that in human society, both parents typically share the responsibility of rearing a baby. In this situation, if the woman is cheated by her lover with whom she may have had a consensual sexual relationship, and she does not have the means to fend for herself and the baby, or if she is genuinely concerned about the future of the fatherless baby in a male-dominated society, she may have no option but to claim the right to be left alone by way of abandoning the unwanted baby in a proper manner. However, given the fact that in India, a majority of the women may not have the courage to approach the correct authority to properly hand over an unwanted child, the issue of applying criminal liability to such unwed mothers who leave their unwanted children in hazardous conditions must be understood from the perspective of restorative justice. While women have the right to abandon their unwanted children, children have a greater right to survive in a healthy way. The lawmakers, the law itself, the justice machinery, and NGOs—and civil society as a whole— must take collective responsibility to prevent the occurrence of such pathetic situations for the sake of both the mothers and the children. One of the main reasons that have been cited in research on unwed mothers giving birth to unwanted babies is lack of sex education and education about health and hygiene for women in Indian society. Given the fact that many unwed mothers may be young teenagers, who may not be able to afford an education due to poverty or adverse situations at home, it becomes imperative for the government and NGOs to take up measures to ensure that girls of such vulnerable ages attend schools and get basic sex education. In addition, in rural, semi-rural, and urban areas, schools and colleges must arrange for compulsory grade-based sex and health education curricula. This would encourage teenagers and young adult students to learn and spread awareness about unprotected sexual intercourse, contraceptives, and civil responsibilities in any romantic liaisons that involve physical relationships outside marriage. Further, hospitals, private nursing homes, and clinics should have a mechanism through which to instantly inform the police or the CWC directly when a woman leaves a baby. Some hospitals have taken up measures to make prior enquiries of unmarried women who turn up to deliver their babies, and such systems may include, as well as doctors, social workers and counselors who may help the woman in question to take a proper decision. They may advise the unwed mother to seek shelter at a women’s home where both the unwed mother and the child can be taken care of. They may, alternatively, have the child sent to a foster shelter where the mother

116

Chapter Seven

may have limited access, yet still be able to maintain contact with the child. In addition, the courts must take a lenient view toward unwed mothers who abandon their children in hazardous conditions, especially when the mother is a minor or hails from a socio-economically backward community. Before awarding imprisonment, the courts must consider applying the approach of therapeutic jurisprudence. According to Professor David Wexler, the founder of the therapeutic jurisprudence school, the term “therapeutic jurisprudence” can be explained as follows: Therapeutic jurisprudence focuses our attention on the traditionally underappreciated area of the law’s considerable impact on emotional life and psychological well-being. Its essential premise is a simple one: that the law is a social force that can produce therapeutic or anti-therapeutic consequences. The law consists of legal rules, legal procedures, and the roles and behaviors of legal actors, like lawyers and judges. Therapeutic jurisprudence proposes that we use the tools of the behavioral sciences to study the therapeutic and anti-therapeutic impact of the law, and that we think creatively about improving the therapeutic functioning of the law without violating other important values, such as Gault-like due process. Winick and Wexler 2003, 7)

Hence, courts must judge this aspect of the law, whereby unwed mothers can be counseled and given a chance to be reunited with their formerly unwanted children to take care of them through state-sponsored mechanisms, instead of staying in jails. It is also necessary that digital communication technology be used to create awareness among young adults about the risks of getting involved in physical relationships and the precautions that must be taken. The Department of Social Welfare and the Ministry of Women and Child Welfare must actively generate social media messages cautioning young lovers about the risks involved in physical intimacy and their responsibilities toward unwanted children, and circulate information about proper procedures for handing over an unwanted child. These departments may also consider generating SMSs to subscribers of mobile phones regarding such issues. This could be done in the same fashion as the government banks, which generate SMSs regarding phishing scams. Such SMSs must include precautionary measures for unwanted pregnancies, the addresses of local CWCs, names and phone numbers of committee members, and Childline numbers, in case an unwed mother wishes to hand over her child to such institutions. It is also essential that CWCs have separate counselors and counseling rooms for unwed mothers, to protect their privacy.

The Rights of Unwed Mothers versus the Rights of Unwanted Children 117

It is expected that once these measures are strictly adhered to by the government, the numbers of unwed mothers, and the numbers of abandoned, unwanted children, will decline. The rights of the unwed mothers and those of their unwanted children will also be properly recognized and exercised.

References Balen, F. Van, and H.M.V. Bos. 2009. “The Social and Cultural Consequences of Being Childless in Poor-Resource Areas.” Facts Views & Vision in ObGyn. www.ncbi.nlm.nih.gov/pmc/articles/PMC4251270/ (accessed January 10, 2015). Bedi, Arjun S., and Sharada Srinivasan. 2010 “Daughter Elimination and the Cradle Baby Scheme in Tamil Nadu.” March 1. http://ssrn.com/abstract=1610144 (accessed February 2, 2015). Bos, P. 2007. “Once a Mother: Relinquishment and Adoption from the Perspective of Unmarried Mothers in South India.” http://repository.ubn.ru.nl/dspace31xmlui/bitstream/handle/2066/7364 3/73643.pdf?sequence=1 (accessed February 1, 2015). Ghosh, Gautam. 2013. “Addressing the Sex Related Problems among Adolescents in India.” http://ssrn.com/abstract=2226777 (accessed February 2, 2015). Giji, George. 2011. “A Study on Unwed Mothers Residing in the Licensed Homes in Kerala.” http://hdl.handle.net/123456789/565 (accessed February 3, 2015). Gupta, Charu. 2009. “Hindu Women, Muslim Men: Love Jihad and Conversions.” Economic & Political Weekly (EPW), December 19. Gupta, Giri Raj. 1976. “Love, Arranged Marriage, and the Indian Social Structure.” The Journal of Comparative Family Studies, 7(1): 75–85. Halder, Debarati. 2008. “Property Rights of Hindu Women: A critical Review of Succession Laws of Ancient, Medieval, and Modern India.” Journal of Law and Religion, 24: 101–122 —. 2013. “Who Wins the Battle for Custody? An Analysis of the Nature of Modern Judicial Understandings of Women’s Rights in Cases of Custody of Minor Children in Matrimonial Disputes under the Hindu Laws.” In Essays in Family Law in Memory of Professor B N Sampath: Gender, Human Rights and Law, edited by Sarasu Esther Thomas, 8–18. Bangalore: National Law School of India University. Halder, Debarati, and Jaishankar Karuppannan. 2009. “Intercountry Adoption and Human Rights Violations in India.” In International

118

Chapter Seven

Perspectives on Crime and Justice, edited by K. Jaishankar, 465–83. Newcastle upon Tyne, UK: Cambridge Scholars Publishing. IBTimes Staff reporter. 2013. “Over 60,000 Children Abandoned Each Year in India.” February 4. www.ibtimes.co.in/over-60000-childrenabandoned-each-year-in-india-report-431148 (accessed February 2, 2015). Pagdala. 2013. Crying for care. May 17. http://indiatogether.org/abandoned-children (accessed February 12, 2015). PTI. 2011. “New Born Girl Child Found Dead in Dustbin.” January 15. www.ndtv.com/cities/new-born-girl-child-found-dead-in-dustbin445076 (accessed February 2, 2015). Widge, Anjali. 2001. “Sociocultural Attitudes Towards Infertility and Assisted Reproduction in India.” Medical, Ethical and Social Aspects of Assisted Reproduction, edited by Effy Vayana, Patrick J. Rowe, and P. David Griffin, 60–74. Geneva, Switzerland: World Health Organization. Winick, Bruce J., and David B. Wexler. 2003. Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham, N.C.: Carolina Academic Press.

CHAPTER EIGHT THE ROLE OF THE “NONE OF THE ABOVE” OPTION IN DEEPENING DEMOCRACY: REFLECTIONS FROM INDIA SUBHASHREE SANYAL AND MOUMITA LAHA

Introduction Being the largest democracy in the world, India owes it to its people to be a responsible one—one that will adopt a welfare approach and work toward the integrated holistic development of each citizen. The Constitution of India has often undergone major amendments and addendums over time to accommodate progressive efforts to deepen democracy and highlight the power of the people. Ideally, deepening democracy means making democracy relevant to the lives that people live. The central ideology of any democracy is power. This rests with the common person, who elects representatives who work for the interests and welfare of the people. This means democracy lies with the people of a nation. It is the people who govern the functioning of a nation through their fairly elected representatives, and each citizen’s assent or dissent plays a major role. The efforts made in this direction entail actions such as institutional reforms, devolution of power, putting funds in the hands of the local administration, etc. In any democracy, elections and electoral reforms play a major role, and in this context one such electoral reform has been debated by academia, civil society, development professionals, and political scientists. This is “NOTA,” or “none of the above,” as a voting right accorded to citizens to ensure participation and representation in electoral processes. It may be regarded as a progressive measure initiated by the state to ensure greater, more meaningful representation of the people in choosing their representatives through the electoral system.

120

Chapter Eight

Defining the None of the Above Option On September 27, 2013, the Supreme Court announced the NOTA option was to be included on electronic voting machines (EVMs) and ballot papers. Electors who did not want to vote for any of the candidates could exercise this option in secrecy (ECI 2014). NOTA was initiated with the ideology of promoting a progressive and participatory democracy. It gave voters greater flexibility and freedom to express their preferences. NOTA is likely to remove the restrictions on individual preferences by expanding choice one bold step further through the aggregation procedure. The new dispensation will ensure that voters exercise their choices wisely and rationally to elect deserving candidates as their representatives. However, NOTA has been contested on various grounds and is often accused of failing to live up to the objectives for which it was established.

The Presence of NOTA across the Globe The right to say no, as a concept, can be viewed in a neoliberalist frame. In fact, NOTA as a concept came into existence after the phase of economic globalization in India. There are very few precedents for such an initiative in other countries, whether voting is voluntary or compulsory. In Chile and Brazil, where compulsory voting operates, there is a positive abstention box—NOTA—on the ballot paper. Voters in Sweden have the option of the negative vote by way of a blank ballot; voter turnouts have been historically very high, around 85 percent on average. The state of Nevada in the U.S. introduced this option in 1975. A year later, the option out-polled the two contesting candidates in the Republican primary for the House of Representatives; but because of the non-binding nature of the legislation, the first candidate won the nomination. Thus, we can see that the use of NOTA has been significant in democracies across the world.

Evolution of NOTA in India India is the largest democracy in the world. NOTA, as an electoral reform procedure, was ensured through Article 49 (0) of the Indian Constitution. It is a new addition to the electoral process in the country: the Supreme Court’s landmark judgment on September 27, 2013, aimed to make a provision that the majority vote should not be the sole criterion for ensuring democracy. It ensured space for those who chose to refrain from electing any of the existing candidates in a constituency. These electors— by selecting NOTA on the EVM or ballot paper—exercised their right to

The Role of the “None of the Above” Option in Deepening Democracy 121

vote. The idea behind NOTA is to reduce absenteeism and illegal or fake voting. This also encourages participatory democracy, as more people are encouraged to cast their vote, even if it means refraining from choosing one of the contesting candidates. NOTA highlights an individual’s “right to dissent,” and brings to the fore the fact that majority voting does not imply a representative democracy where a large section of the population may have made a different choice or no choice at all from among the candidates contesting said election. Earlier, NOTA was considered equivalent to an invalid vote and was not given due attention in any election or counting procedure. However, the increasing numbers of votes being cast under NOTA, in each of the passing elections in India, raise an important question on the proper implementation of Article 49 of the Constitution. This clearly states that the people of India have the right to reject candidates if they feel none of them is fit. On September 27, a Supreme Court Bench comprising the Chief Justice of India, Justice P. Sathasivam, Justice Ranjana Prakash Desai, and Justice Ranjan Gogoi, in the case of the “People’s Union for Civil Liberties v. Union of India,” granted the plea of the petitioners to extend the principle of secrecy of ballot to those voters who decided not to vote (Frontline 2013). This landmark petition rejected the stand of the Union of India on the principle of secrecy of ballot. According to the Union of India, the principle could be extended only to those voters who cast their votes and not to those who refrained from voting. Thus, NOTA emerged as a radical, electoral reform that brought about a renaissance in the electoral and constitutional processes of the country.

How NOTA Signifies a Democracy Democracy is not signified by maximum votes. Its ethos lies in maximum participation. This significant addendum of NOTA was initiated in the Indian electoral process keeping this ethos in mind. Voter turnouts in elections in the country have grown over a period. Table 8.1 indicates voter turnouts since 1951. Data reveals that voters’ participation has been as low as 55 percent in various elections held across the country. This brings to light the importance of NOTA. Does lower turnout in the past indicate voters refraining from selecting the contesting candidates? Does it also indicate that the significance of implementing NOTA to whether a true representative is chosen lies far back in the history of Indian democracy? After the introduction of NOTA in 2013, voter turnouts rose steadily to 66 percent, their highest level ever. This signifies that NOTA brought about greater participation in the electoral

Chapter Eight

122

process and reduced the likelihood of absenteeism. Thus, it encouraged more people to cast their votes even if they regarded the contesting candidates as being unfit to represent them. Table 8.1: Voter Turnout for Elections 1951–2014 Year of election

Registered electors (millions)

Voter turnout (%)

1951 1957 1062 1967 1971 1977 1980 1984 1985* 1989 1992# 1996 1998 1999 2004 2009 2014

173.2 193.7 216.4 249.0 274.2 321.2 356.2 379.5 20.8 498.9 13.2 592.6 605.9 619.5 671.5 717.0 834.1

61.16 63.73 55.42 61.33 55.29 60.49 56.92 63.56 72.23 61.95 23.96 57.94 61.97 59.99 57.98 58.19 66.40

Notes: * Elections held separately for Assam and Punjab; # Elections held for the state of Punjab. Source: ECI 2014

As per the directives of the Supreme Court of India, the Election Commission made special provision in ballot papers/EVMs for NOTA. Voters who came to the polling booth and decided not to vote for any of the contesting candidates could exercise their right to vote by selecting NOTA and still maintaining the secrecy of their ballots. The provision for NOTA has been in place since the general elections to State Legislative Assemblies of Chhattisgarh, Madhya Pradesh, Mizoram, NCT of Delhi, and Rajasthan in 2013 (ECI 2014).

The Role of the “None of the Above” Option in Deepening Democracy 123

Figure 8.1: NOTA Votes out of Total Votes Polled in the States/Union Territories (UT) in General Elections of Legislative Assemblies (Oct.– Dec., 2013)

Source: ECI 2014

In the 2014 state elections in Maharashtra, 460,741 voters (0.9 percent) opted for NOTA. Similarly, as many as 53,613 voters (0.06 percent) exercised NOTA in the Haryana Assembly polls. Interestingly, NOTA garnered a countrywide vote share of 1.1 percent in these Lok Sabha polls, which was more than the vote share managed by the contesting parties. Over 5,970,000 lakh voters across all 543 constituencies pressed the last button on the EVMs, earmarked for NOTA. While Uttar Pradesh (UT) led the NOTA tally in absolute terms, Puducherry emerged at the top of the table in percentage terms, with 3 percent of its electorate choosing to reject all the candidates. Interestingly, Bihar, Tamil Nadu, West Bengal, and Gujarat polled sizable NOTA votes in most constituencies. In terms of vote share, while Puducherry led, Meghalaya ranked second with 2.8 percent, followed by Chhattisgarh, Gujarat, and Dadra and Nagar Haveli, each with 1.8 percent vote share for NOTA. Bihar and Odisha each polled 1.6 percent. Table 8.2 defines the percentage of NOTA polled across various states in the Union elections of 2014.

Chapter Eight

124

Table 8.2: States and Union Territories Opting for NOTA in the 2014 Lok Sabha Elections (%) States /UT Puducherry Meghalaya Gujarat Chhattisgarh Dadra and Nagar Haveli Odisha Bihar Mizoram Jharkhand Daman and Diu Madhya Pradesh Sikkim Tamil Nadu Tripura Kerala Goa Rajasthan Uttarakhand West Bengal Arunachal Pradesh Assam Maharashtra Himachal Pradesh Delhi India

Number of NOTA Votes (% of total) 22,268 (3%) 30,145 (2.8%) 454,880 (1.8%) 224,889 (1.8%) 2,962 (1.8%) 328,060 (1.6%) 576,348 (1.6%) 6,495 (1.5%) 190,241 (1.5%) 1,316 (1.5%) 391,837 (1.3%) 4,259 (1.4%) 574,712 (1.4%) 23,783 (1.2%) 210,561 (1.2%) 10,103 (1.2%) 327,902 (1.2%) 48,043 (1.1%) 568,276 (1.1%) 6,216 (1.1%) 147,057 (1.0%) 432,181 (0.9%) 29,156 (0.9%) 39,690 (0.5%) 5,978,208 (1.1%)

Source: Jain 2014

Thus, the NOTA option played a very significant role in Indian democracy just a year into its implementation.

NOTA as “People Power” A few notable events bring to light how NOTA is playing an important role in the democratic process. In Greater Noida, Uttar Pradesh, a large number of farmers threatened to exercise NOTA if their demands were not

The Role of the “None of the Above” Option in Deepening Democracy 125

met before the elections. These were farmers whose lands had been snatched by the authorities in connivance with developers and industrialists (Aradhak 2014). Similarly, in Kolkata, more than 300 families who were evicted from a slum in the eastern region to make way for an upcoming flyover threatened to use NOTA in the Lok Sabha elections if they were not rehomed by the state government (Press Trust of India 2014). Likewise, in Maharashtra, hundreds of thousands of distressed farmers in the Vidharbha region threatened to press the NOTA button, if they were not disbursed aid for their farm losses (IANS 2014). Thus, we can see how people used their democratic rights not only to make their representatives aware of their problems but also to hold them to account where they—the representatives—fell short of their promises. Thus, NOTA made representatives accountable to their constituency even after the elections and so challenged them to perform better in the face of opposition.

Fallouts of NOTA The NOTA process is an effective electoral reform. However, there are a few fallouts of this method. The votes polled under the NOTA option are not taken into account for calculating the total valid votes polled by the contesting candidates for the purpose of the return of security deposits to candidates. Even if the number of electors opting for the NOTA option is more than the number of votes polled by any of the candidates, the candidate who secures the largest number of votes has to be declared elected (ECI 2014). Thus, this defeats the purpose of having NOTA represent people’s dissent. The NOTA process stands useless until such a time as India makes a provision requiring a re-election in the event that the NOTA votes outnumber majority voting. According to the former election commissioner S.Y. Quraishi, the NOTA option does not imply the right to reject, nor does it affect election results. All it does is put pressure on political parties to nominate good candidates (India Today Online 2013). As he points out: Even if there are 99 NOTA votes out of a total of 100, and candidate X gets just one vote, X is the winner, having obtained the only valid vote. The rest will be treated as invalid or “no votes”.

According to the former Chief Election Commissioner Navin Chawla, under the current laws, the option does not exist of re-polling if NOTA votes total more than those obtained by any candidate. Therefore, until and unless NOTA votes are recognized by the state, the whole idea behind NOTA as a means of expressing dissent fails. The Election Commission

126

Chapter Eight

recognizes and asserts people’s rights to cast their votes instead of abstaining from voting by not turning up at all, which is not an ideal option for a conscientious and responsible citizen, but in real terms this does not mean the right to reject (Katju 2013).

Conclusion A truly representative democracy is desired in any election, but does it ensure a cleaner and better electoral candidate? Legal expert K.K. Venugopal (2013), who has always supported the need for a negative vote in India, argues that it would lead to a cleaner politics. The Supreme Court has stated that, besides cleaning up politics, the option of a negative vote would foster greater participation among voters, as it would draw to the polling booths those who otherwise would not vote beause of their dissatisfaction with the contesting candidates. The right to a negative vote would encourage these members of the electorate to visit polling stations n order to express their unhappiness by exercising their choice of rejection. The Court felt that this would also contribute to reducing the problem of impersonation in voting (Katju 2013). However, the most serious concern is: when more than 50 percent of those voting exercise the power of NOTA, is the winner morally entitled to be democratically elected? The legal status of the NOTA vote is currently “invalid,” and the winner is selected from among those securing the valid votes polled. Therefore, the legitimacy of the elections and the actual influence of NOTA under current conditions is subject to criticism. The right to say no would actually be a significant step in the democracy of India if it can be treated as a valid vote and counted in determining which candidates have received sufficient support to be elected. For the time being, NOTA is an important stop in encouraging the active participation of voters and enhancing representation in the electoral process. However, until and unless the NOTA votes are counted, the electoral system will not change. NOTA votes should influence the election results. As this is a new concept of the state, the rising numbers of NOTA votes should draw major attention from policy makers and researchers, who can perhaps work together toward legitimizing the voting process. This would be the true realization of democracy in India.

The Role of the “None of the Above” Option in Deepening Democracy 127

References Aradhak, Purusharth. 2014. “No Faith in Neta, Farmers Threaten NOTA.” Times of India, March 7. http://timesofindia.indiatimes.com/city/noida/No-faith-in-neta-farmersthreaten-NOTA/articleshow/31561816.cms (accessed September 10, 2014). ECI. 2014. Electoral Statistics Pocket Book 2014. New Delhi: Election Commission of India. —. 2014. Systematic Voters’ Education and Electoral Participation. Compendium of Instructions. New Delhi: Election Commission of India. IANS. 2014. “Vidarbha Farmers Threaten to Choose NOTA if No Aid Disbursed March.” Business Standard, March 15. www.businessstandard.com/article/elections-2014/vidarbha-farmers-threaten-tochoose-nota-if-no-aid-disbursed-114031500495_1.html (accessed September 10, 2014). India Today Online. 2013. “NOTA Option Does Not Mean Right to Reject and Won’t Affect Election Results, Says Former Election Commissioner.” October 3. http://indiatoday.intoday.in/story/nota-does-not-mean-rightto-reject-voter-election-evm/1/312960.html (accessed September 10, 2014). Jain, Bharti. 2014. “Election Results: NOTA Garners 1.1% of Country’s Total Vote Share.” Times of India, May 17. http://timesofindia.indiatimes.com/news/Election-results-NOTAgarners-1-1-of-countrys-total-vote-share/articleshow/35222378.cms (accessed September 10, 2014). Katju, M. 2013. “The None of the Above Option.” Economic and Political Weekly 48(42): 10–12. Press Trust of India. 2014. “Kolkata: Evicted Slum Dwellers Threaten to Exercise NOTA Option.” April 21. www.ndtv.com/electionsnews/kolkata-evicted-slum-dwellers-threaten-to-exercise-nota-option558204 (accessed September 10, 2014). Venugopal, K.K. 2013. “Redemocratising the Electoral System.” The Hindu, October 4. www.hindu.com/nic/elecsyst.htm (accessed Sep 10, 2014).

CONTRIBUTORS

Dr. Sandeepa Bhat B is a professor (Law) at NUJS, Kolkata. He has more than 11 years of teaching and research experience at the National Law School of India University (NLSIU), Bangalore. He was part of the team of researchers that worked on the World Bank major research project on Public Health Laws and Regulations, and the Indian Space Research Organization’s (ISRO) major research project on Laws Relating to Satellite Financing. He has the distinction of being a member of the International Institute of Space Law (IISL), Paris, France. Noel Cox is a former professor of Law, Aberystwyth University, United Kingdom. He was the Head of Department, Auckland University of Technology. He has been a visiting fellow at St. Edmund’s College, University of Cambridge; and at the Faculty of Law, Australian National University. His principal area of practice is civil litigation. His work includes occasional opinion pieces, mainly in common law areas of practice and some matters of constitutional law. Dr. Lovely Das Gupta is an assistant professor (Law) at NUJS, Kolkata. She has more than 11 years of teaching and research experience in her field. Dr. Debarati Halder is presently working as professor and Head of the Centre for Research on Law & Policy in United World School of Law, Karnavati University. She is the Honorary managing director of Centre for Cyber Victim Counseling (CCVC) (www.cybervictims.org) (an online not for profit organization (www.cybervictims.org) meant for helping and counseling the victims of internet and digital communication crime victims). She is also the founding secretary of South Asian Society of Criminology and Victimology (SASCV) (www.SASCV.org). Mostafa Hosain completed his LL.B. at Dhaka University, Bangladesh, and LL.M. at the South Asian University, Delhi. He is currently a Ph.D. research scholar at the South Asian University, Delhi.

130

Contributors

Ms. Moumita Laha is an assistant professor with the Department of Social Work, Institute of Rural Reconstruction, Visva Bharati University, West Bengal. She has a bachelor’s degree in Social Work and a Masters in Social Work (MSW) from Visva Bharati University. She has also worked for more than five years with the development sector, as a program executive in reputed national and international organizations across various Indian states. Her major areas of intervention are on rural and urban development, local governance, and women’s development. Dr. Dev N. Pathak is an assistant professor (Sociology) at the South Asian University, New Delhi. He has more than 11 years of teaching experience. He is the reviews editor of the Society and Culture in South Asia journal (of the South Asian University, published by Sage India), and is on the International Editorial Board of South Asian Cultural Studies (an Edge Hill University, London-based journal). He did his Ph.D. at Jawaharlal Nehru University (JNU), New Delhi. Dr. Sheela Rai is currently professor (Law), National Law University, Odisha. She has 13 years of teaching experience in various capacities. She was associated with the “Land Reforms and Corporatization of Agriculture in India” and was part of the United Nations Development Program (UNDP)-sponsored research project “Liberalization of Agriculture in India.” Prof. Udai Raj Rai is a distinguished professor of Law, National Law University, Odisha (India). In the past, he has held many eminent positions, such as Chair Professor (Krishna Iyer Chair on Public Law and Policy Choice), National Law School of India University, Bangalore; Chair Professor (Ford Foundation Human Rights Chair), NUJS, Kolkata; Professor, Head and Dean of Faculty of Law, Deen Dayal Upadhyay University, Gorakhpur, Uttar Pradesh. He did his Ph.D. in London. Dr. Subhashree Sanyal is an assistant professor at the Social Work Institute for Rural Reconstruction, Visva Bharati University, Santiniketan, West Bengal. She is an academician with over five years of experience in teaching and research in distinguished universities under the Government of India. She has experience in conducting social development analyses with a particular focus on social inclusion and gender mainstreaming with UNICEF and the International Center for Research on Women (ICRW). She did her Ph.D. at the Department of Social Work, Delhi University.