Women and Law: Critical Feminist Perspectives [1 ed.] 9788132113133

Citation preview

Women and Law

ii

Women and Law

Women and Law Critical Feminist Perspectives

Edited by Kalpana Kannabiran

Copyright © Kalpana Kannabiran, 2014 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2014 by SAGE Publications India Pvt Ltd B1/I-1 Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 3 Church Street #10-04 Samsung Hub Singapore 049483 Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 10/12pt Berkeley by RECTO Graphics, Delhi and printed at Saurabh Printers Pvt Ltd, New Delhi. Library of Congress Cataloging-in-Publication Data Women and law : critical feminist perspectives / Edited by Kalpana Kannabiran. pages cm Includes bibliographical references and index. 1. Women—Legal status, laws, etc.—India. 2. Feminist jurisprudence—India. 3. Feminism—India. 4. Women’s rights—India. I. Kannabiran, Kalpana, editor of compilation. KNS516.W64 346.5401'34—dc23 2013 2013032290 ISBN: 978-81-321-1313-3 (HB) The SAGE Team: Rudra Narayan, Shreya Chakraborti, Nand Kumar Jha, and Dally Verghese

For Leela Dube (1923–2012), Lotika Sarkar (1923–2013) and Vina Mazumdar (1927–2013) who made a difference.

Women and Law

Thank you for choosing a SAGE product! If you have any comment, observation or feedback, I would like to personally hear from you. Please write to me at [email protected] —Vivek Mehra, Managing Director and CEO, SAGE Publications India Pvt Ltd, New Delhi

Bulk Sales SAGE India offers special discounts for purchase of books in bulk. We also make available special imprints and excerpts from our books on demand. For orders and enquiries, write to us at Marketing Department SAGE Publications India Pvt Ltd B1/I-1, Mohan Cooperative Industrial Area Mathura Road, Post Bag 7 New Delhi 110044, India E-mail us at [email protected]

Get to know more about SAGE, be invited to SAGE events, get on our mailing list. Write today to [email protected]

This book is also available as an e-book.

YZ

vi

Contents List of Tables List of Abbreviations Preface Introduction 1.

Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence Indira Jaising

ix xi xiii xv

1

2.

Conjugality, Property, Morality and Maintenance Flavia Agnes

3.

Women, Forestspaces and the Law: Transgressing the Boundaries Sagari R. Ramdas

59

Women’s Rights and Entitlements to Land in South Asia: Changing Forms of Engagements Meera Velayudhan

86

Outside the Realm of Protective Legislation: The Saga of Unpaid Work in India Padmini Swaminathan

115

4.

5.

32

6.

Gender Equality at Workplace: A Frozen Agenda D. Nagasaila

7.

Judicial Meanderings in Patriarchal Thickets: Litigating Sex Discrimination in India Kalpana Kannabiran

172

Women’s Health and Law in India: Trends of Hope and Despair Shruti Pandey

206

8.

143

viii

Women and Law

9.

Prenatal Diagnosis: Where Do We Draw the Line? Anita Ghai and Rachana Johri

10. Religion, Feminist Politics and Muslim Women’s Rights in India Zoya Hasan

240

264

11. Women and State Violence: Where Is Justice? Anita Tiphagne

274

About the Editor and Contributors Index

287 292

List of Tables 3.1

3.2

3.3

5.1 5.2 5.3 5.4 5.5

Status Report of FRA Claims Submitted, Surveyed and Approved, Parvathipuram Division, Vizianagaram District, Andhra Pradesh Status of FRA Individual and Community Claims in Vizianagaram, Srikakulam and Adilabad Districts as of 31 March 2009 FRA Individual Claims Approved, Panchayat Akkarapally, Hiramandalam Mandal (Srikakulam)

64

The Overlap of Paid/Unpaid Work and SNA/Non-SNA Work Weekly Average Time (hours) Spent on Activities (combined for six states) Percentage Distribution of Workers by Activity Status Comparing Work Participation Rates between NSS and TUS (rural) State-wise Distribution of Time Spent (in hours) by Mode of Payment

119

65

66

120 123 129 130

List of Abbreviations AAY AIDS AIDWA AIMPLB ARTs BJP BMMA BPL CEDAW CESC CRC CrPC EC ESI ACT GDP GM HIV HLEG HPV ICCPR ICDS ICESCR ICFTU ICSSR ILO IPC IPR JSA

Antyodaya Anna Yojana Acquired Immunodeficiency Syndrome All India Democratic Women’s Association All India Muslim Personal Law Board Artificial Reproductive Technologies Bhartiya Janata Party Bharatiya Muslim Mahila Andolan Below Poverty Line Convention on the Elimination of All Forms of Discrimination against Women Centre for Environment and Social Concerns Convention on the Rights of the Child Criminal Procedure Code Executive Committee Employees’ State Insurance Act Gross Domestic Product Genetically Modified Human Immunodeficiency Virus High Level Expert Group Human Papilloma Virus International Covenant on Civil and Political Rights Integrated Child Development Services International Covenant on Economic, Social and Cultural Rights International Confederation of Free Trade Unions Indian Council of Social Science Research International Labour Organisation Indian Penal Code Intellectual Property Rights Jan Swasthya Abhiyan

xii

Women and Law

JSTF JSY MCD MMR MTPs MWA MWRN NHRC NHSRC NMBS NMML NRHM OBC PCPNDT Act PHFI PHM PIL PUCL RCH SICHREM SISSPA SOCO SRB STF TADA TFR UDHR UGC UHC UNCAT UNCRPD WRAG

Joint Special Task Force Janani Suraksha Yojana Municipal Corporation of Delhi Maternal Mortality Rate Medical Termination of Pregnancies Muslim Women’s Act Muslim Women’s Rights Network National Human Rights Commission National Health Systems Resource Centre National Maternity Benefit Scheme Nehru Memorial Museum Library National Rural Health Mission Other Backward Classes Pre-conception and Pre-natal Diagnostic Techniques Act Public Health Foundation of India People’s Health Movement Public Interest Litigation People’s Union for Civil Liberties Reproductive and Child Health South Indian Cell for Human Rights Education and Monitoring South India Small Spinners Association Society for Community Organisation Sex Ratio at Birth Special Task Force Terrorist and Disruptive Activities (Prevention) Act Total Fertility Rate Universal Declaration of Human Rights University Grants Commission Universal Health Coverage United Nations Convention against Torture UN Convention on Rights of Persons with Disabilities Women’s Research and Action Group

Preface Women’s movements in India have rich and diverse genealogies and have been marked by persistent and protracted struggles. Despite this history, we have in recent times found ourselves shocked at the decimation of decades of struggle. And yet it is also true that our words and our work—as women from different and distinct social locations and generations—have together and severally cascaded out of our small radical spaces and have transformed constitutional commonsense. What is the political framework within which non-discrimination based on sex must be based? How has feminist common sense transformed the meaning of due diligence by the state as part of its constitutional obligation? If opportunities are crucial in order that people realise their full capabilities, what is the extent to which women are distanced from this goal through a rejection of due diligence by the state? The collection of essays in this volume explores the different dimensions of women’s engagement with law. By no means exhaustive, this volume attempts to flag some issues and problems in the ways in which laws speak to women’s lives in India. Its significance, I believe, lies in its pedagogic potential and in its demonstration of the centrality of gender to legal pedagogy. I am indebted to Maithreyi Krishna Raj for inviting me to put together a collection for the Review of Women’s Studies, Economic and Political Weekly, 31 October 2009. Some of the essays in this volume are from that special issue. I am grateful to Economic and Political Weekly and Indian Journal of Gender Studies for permission to reprint essays and to SAGE Publications for their interest and patience. I am also thankful to Sanika Gokhale, student of National University of Juridical Sciences, Kolkata, who assisted me in the work of putting this manuscript together in the summer of 2012. This volume is dedicated to Leela Dube, Lotika Sarkar and Vina Mazumdar, all of whom were members of the Committee on the Status of Women in India (1974) that brought out the Towards Equality report,

xiv

Women and Law

which continues to be the touchstone of our understanding of genderbased discrimination and inequality in contemporary India. More importantly, they were teachers who made a world of difference to the way we—an extended, dispersed, multidisciplinary, intergenerational student community—understand life and law today. We celebrate their lives and their work and hope that we as feminists have imbibed some small part of their teaching in letter and spirit. Kalpana Kannabiran

Introduction In looking at the theme “women and law”, our concern in this volume has been to look at women’s life and worlds—in some parts—and the extent to which the law has touched them. Where the law has in fact touched lives, the quality of that engagement—legislative, interpretive, positive, restitutive, punitive—is of critical significance. After over three decades of feminist activism in which negotiations around law and justice delivery for women occupied a central place, we are at a point where questions of diversity, difference and the multiple intersecting sites of discrimination and dispossession have opened out several layers in earlier concerns on questions of women’s entitlements and citizenship. How should we approach the problem of women and law? Should the focus be on women-centred laws or provisions and their efficacy? Or should the focus be, instead, on the ways in which the law imagines women and the ways in which women have engaged with the law—spilling beyond fields traditionally associated with the phrase women and law? Or should we use the Delhi High Court’s extended delineation of “sex” in the celebrated Naz Foundation case, to look at the question beyond simple classifications of male and female, looking at gender and law not in a manner that waters down the focus on women but in a manner that complicates our understanding of discrimination based on sex. And what is the place of violence? The experience of women in Gujarat, Kashmir, Manipur and Chhattisgarh (to name a few places) has shown us the many faces of state violence and the ways in which the repressive state, in concert with dominant interests, wages war on women’s bodies and their lives in a democracy. The first issues that flash at the mention of women and law are rape, dowry death and sati. An attempt to take this further leads us to disentitlements from property, maintenance, labour protections, residence, child custody, citizenship, etc. What is common through all these concerns is

xvi

Women and Law

the issue of violence—of an unequal social order, but also importantly, law’s violence. And nowhere has this been starker than in the case of women. The history of women’s struggles in India around rights in relationship has revolved across communities, on entitlements to domestic resources and rights to domestic space irrespective of title and ownership. Indira Jaising chronicles the passage of the Protection of Women from Domestic Violence Act, 2005, which redefines the ‘domestic’ in very important and far-reaching ways, setting out a vision (difficult even for the judiciary to accept unequivocally) that whether or not ownership is shared, whether or not the relationship is harmonious, the home is a shared space. The problem, however, still remains where conflict in marriage leads to divorce or dissolution in a patriarchal society in which women within marriage are in a state of economic dependency. What of the woman’s economic rights and her material needs both of which are closely tied to her psychosocial well-being? Flavia Agnes critically examines women’s travails in securing maintenance in courts that decide at best in favour of formal rather than substantive equality in these matters. Perhaps, she suggests, there is need for a shift in constitutional interpretation on this issue. Women’s access to and control over resources and indeed women’s entitlements are fraught at every level. How have women from Adivasi and other forest-dwelling communities asserted their control over the forestscape? What are the ways in which they have expressed their plural, productive and non-economic engagements with the forest both vis-à-vis their communities and in relation to the state? Sagari R. Ramdas takes a close look at the ways in which the implementation of the Forest Rights Act in Andhra Pradesh reinforces patriarchal and stereotypical constructions of Adivasi women, completely negating their autonomy and their concerted resistance to neoliberal policies that have flattened their lands and destroyed livelihoods. Land is a critical asset for women and access to land the most difficult. Adivasi women and women from forest-dwelling communities have had a plural relationship with the forest landscape— a relationship that is both material and spiritual. Ramdas undertakes a critical assessment of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and traces the gaps between legislative intent and bureaucratic translation into awards; she

Introduction

xvii

argues that patriarchal stereotypes and paternalism determine the processes set into motion by the bureaucracy at the state level. Meera Velayudhan draws the discussion on land out to look at the ways in which women in the South Asian region have secured access to land—examining processes under customary law and public law. In this discussion, it can scarcely be forgotten that women’s land ownership in the region remains low, with land ownership by women in India being less than 2 per cent. Patrilineal inheritance in most parts of the region, with few exceptions that do not add up, bar women from obtaining primary access to land. Velayudhan takes a broad sweeping look at women’s rights to land and assets in South Asia, using the experience of the Working Group on Women and Land Ownership as her point of departure. Several valuable studies have demonstrated the specific ways in which neoliberal policies have impacted labour. In a situation where informalisation is spreading to engulf the labourscape, Padmini Swaminathan finds that data-gathering tools are not equipped to capture the changing realities of women’s work participation, disentitling them from protective legislation. Critically examining policy documents that speak of the informalisation of the formal sector, she traces the legal and socio-economic implications of this process for women. Through an analysis of statistics of women in the workforce, notably the informal economy, she draws an important connection between the higher participation of women in paid work compared to men and the higher morbidity among women in comparison to men. Legal regimes with reference to the informal sector are more visible in their absence and dysfunctionality than in their protective role. Within this large space of absence of due diligence on the part of the state, Swaminathan examines the gendered calibrations of exploitation that exacerbate the situation of women workers. D. Nagasaila’s chapter analyses the substantial provisions of labour law as applicable to women, tracing the judicial precedents laid down by the Supreme Court and the various high courts in India. In the formal sector where unions are active in foregrounding workers’ demands, historically, studies have pointed to a ghettoisation of women’s concerns by trade unions that have tended to be dominated and led by men. Examining the working of the Industrial Disputes Act, Nagasaila finds that despite the fact that this legislation has the potential to institutional equitable

xviii

Women and Law

conditions of work for women in industry by disciplining managements into gender appropriate norms and policy at the workplace, women’s issues have tended to be seen as individual issues and not a collective concern that the union deliberates and negotiates upon. As a result, awards in the banking and the textile sector, as she argues, are overwhelmingly about wage revisions, share in gains and dearness allowance. She also finds, importantly, that not only are norms of the “worker” weighted against women, they also assume that the worker is not “different”, that is, not differently abled and does not belong to Scheduled Caste (SC), Scheduled Tribe (ST) or minority community. Courts continue to be a critical space for recovering entitlements and seeking redress against discrimination. How have courts understood and interpreted discrimination based on sex? The essay by Kalpana Kannabiran tracks jurisprudence on sex discrimination and points to the problems therein. Following judicial twists, she examines closely the process of reasoning, the points of deliberation and contestation among petitioners, respondents and courts in cases of sex discrimination. Through a sociological reading of case law, she attempts to map the plural threads of reasoning with respect to women’s status, position, vulnerabilities and rights and attempts to uncover their ideological underpinnings. Women’s health and law clearly sit at the intersection of two hegemonic superstructures: patriarchy and the law and it is, therefore, predictably a vulnerable space. Within this space, the loaded understanding of women’s bodies and the lack of understanding of the multiple layers and subgroups of women as against one homogenous section of population, render it even more so. Shruti Pandey’s chapter reviews and critiques both these constricting and enlarging propensities within the Indian law, as it exists and as it looks forward. The focus on reproductive health where women are concerned to the exclusion of all other basic health concerns reflects the continuing and troubling persistence of ideological frameworks that construct women in biomedical terms in state policy. Although there is a token commitment to shifting to a serious and systemic consideration of social determinants of health, a close reading of legislative and policy overtures reinforces the belief that there is a sharp disjuncture between such commitments and the practice of health law and policy. Pandey argues that the basic understanding of the right to health as a human right—and the fact that this right is both an entitlement and an intrinsic

Introduction

xix

part of the right to freedom—still continues to remain firmly outside frameworks of official discourse on health matters. Her chapter looks at the relationship between women, health and law and the paradoxes therein in three parts: the Medical Termination of Pregnancy Act, a high court decision on maternal mortality and morbidity, and the debates around sex-selective abortions. The right to reproductive choice and freedom is critical for all women, but especially critical for women with disabilities. While ordinarily, consent refers to “unequivocal voluntary agreement”, it takes on a different resonance with radically different consequences in terms of the right to personal liberty for persons with disabilities—especially for women with profound intellectual disabilities. Both consent and custody are deeply embedded in and validated by the law. What is the place of care in the conception of justice for persons with disabilities—especially the profoundly disabled? The need for good care for the asymmetrically dependent would focus on support for life, health and bodily integrity, stimulating the senses, imagination and thought in the process. The need for good care for the care-giver is reflected in the need for social and institutional arrangements that allow for care-giving as a real choice, enabling it and providing every support that it requires— ranging from the cultural/emotional to the economic.1 In the case of the profoundly disabled, however, there is a conflation of care with custody and a troubling convergence of will between the state, community and family, with state-run institutions arrogating to themselves the absolute control over women’s sexuality and the negation of the right to bodily integrity which is at the core of the right to personal liberty. Women with disabilities in India are a socially invisible category—powerless, isolated and extremely vulnerable to abuse and violence. While no specific disability law mentions women as a category that requires special attention, the Working Group on Empowerment of Women for the XI Plan acknowledges the gap in law and policy where women with disabilities are concerned.2 Anita Ghai and Rachana Johri pick up this feminist concern with reproductive rights and propose an intersectional reading of the right to abortion from the dual perspective of women’s rights and reproductive rights. Examining the framework of the Prenatal Diagnostic Testing Act, they challenge the view that abortion is the only option when prenatal testing

xx

Women and Law

reveals a birth abnormality. They suggest that the concept of individual choice itself is socially conditioned and present a powerful argument for the need to address the tension between feminists and disability rights advocates. Identity politics for a long part of India’s political landscape refers to movements, campaigns, party strategies and group assertions that mobilize political support around caste and religious identities to gain access to political power and public goods, services and resources of the state. Zoya Hasan’s chapter focuses on identity politics and its impact on gender equality. The analysis in Hasan’s chapter comprises two principal sections. The first section introduces the key issues of secularism and women’s legal status; the second section focuses on the approach and strategies of influential political parties, women’s movements and Muslim women’s groups towards legal reform and the question of a uniform civil code. Hasan looks at the debates on secularism in contemporary India with a focus on the impact of identity politics on gender equality. The implications of the interface of politics and religion for women’s rights generally and minority women’s rights more specifically merit close examination. Hasan’s chapter examines the situation of minority women, through a discussion on secularism and women’s rights, the interplay of politics and religion and women’s part in identity politics and finally the debates around the rights of minority women, including the debates on the uniform civil code. Anita Tiphagne’s chapter uses as its base the specific cases of police abuse of women in the name of combing operations in the search for Veerappan, the sandalwood smuggler. Citing the victim stories gathered from the reports of the Sadasiva Commission of enquiry set-up by the National Human Rights Commission (NHRC) and also from personal narratives and case studies gathered from field visits in the area, this account brings to the fore the gruesome violations perpetrated by officers and the terrifying consequences of impunity for women survivors of state violence. The eleven essays in this collection examine a range of concerns, some taking a fresh look at “typical” problems of women and law, others bringing in concerns that have not been the subject of critical reflection, despite being at the core of women’s engagement with law.

Introduction

xxi

Notes 1. 2.

Martha C. Nussbaum. 2006. Frontiers of Justice: Disability, Nationality, Species Membership. New Delhi: Oxford University Press. http://planningcommission.gov.in/aboutus/committee/wrkgrp11/wg11_rpwoman.pdf, accessed on 20 September 2009.

1

Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence* Indira Jaising

This paper visits the issues of domestic violence in India and explains why the Protection of Women from Domestic Violence Act, 2005, was enacted, what ends were intended to be served and what gaps in the existing legal framework it was intended to plug. It gives a brief background to the feminist campaigns that led to revisions in criminal law, thus forcing the state to intervene in cases of violence in the home and the problems in the criminal law regime that led to the conceptualisation of a civil law to deal with domestic violence. It also discusses the post-enactment developments and the monitoring of the law. On 26 October 2006, the Protection of Women from Domestic Violence Act (PWDVA) came into effect, with the stated objective of providing “for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family”.1 This invocation of the Constitution in the preamble of a law on domestic violence is significant, for the application of constitutional principles to the private domain of the family and the home has often been resisted by the lawmakers and the judiciary. As the Delhi High Court (in)famously stated, in Harvinder Kaur vs Harmander Singh2 “introduction of Constitutional Law in the home is most inappropriate. It is like introducing a bull in a china shop. … In the privacy * This essay was originally published in Economic and Political Weekly, Review of Women’s Studies, XLIV(44): 50–57, 31 October–6 November 2009.

2

Indira Jaising

of the home and married life, neither Article 21 nor Article 14 have any place”. When this objection no longer holds, a new and more insidious objection has emerged—women are misusing the law! While the legislature has enacted the law with a view to bring equality into the home, its success depends on the extent to which the required support services are put in place by the state, on how the law is interpreted by the judiciary and the extent to which women are able to invoke the protection of the law or at least, internalise the view that violence in intimate relationships is something that cannot be tolerated. The PWDVA is informed by the vision that the “home” is a shared space even if there is no shared ownership and hence, it imagines the “domestic” in a different manner. In the last three years, the appellate judiciary has delivered a number of important judgments under the Act which have upheld this vision. However, there have also been judgments that betray a lack of appreciation of the purpose and function of this Act. For instance, in S. R. Batra and another vs Taruna Batra,3 the Supreme Court considered the question whether the wife had a right to reside in the premises owned by the mother-in-law, where she had been living with her husband after marriage. First, the court interpreted the term “shared household” in the Act and held that since the house was owned by the mother-in-law, the wife could not claim a right to reside in that house. Despite the Act stating clearly that a woman has the right to reside in the shared household, “irrespective of whether the respondent or the aggrieved person has any right, title or interest” in the same,4 the judges felt that the concept of ownership of property was the only factor decisive of the right to reside in the shared space. Second, the judges held that the phrase “lived or has lived” in the definition of “shared household” would lead to absurd results, with the woman claiming several places as her “shared household” on the ground that she had lived there at some point of time or the other. Such a view completely negates the vision of the Act that the “shared h o u s e h o l d ” is tied to the concept of “domestic relationship” and there exists a right to reside in the shared household notwithstanding that the woman or her husband/partner have no property right over the house. Additionally, there is a difference between living in a house as a cohabitee and living as a visitor/guest; in relation to the cohabitee, the expression “lived” ought to have been given the same interpretation

Bringing Rights Home

3

as “reside” which has a recognised legal meaning.5 Given that the object of the provision was to prevent dispossession of women from their matrimonial homes, interpreting the phrase “lived or has lived” as “resided” would prevent against absurdities from taking place, as feared by the judges in this case. At the heart of the decision in Batra is a deep-rooted commitment to the right to property, which trumps all other considerations. This narrow conception of property and ownership is the foundation of capitalist societies, not shared by other systems of jurisprudence. In Hindu law, for example, the notion of the coparcenary quite clearly vested the right to ownership of property and the right of usage in a multiplicity of users, who were entitled to use it by virtue of being in the domestic relationship. While ownership was vested with three generations of males, the women of the coparcenary married into the family, in their capacity of mothers and daughter-in-laws, had the undisputed right to reside in it. The coparcenary was quite literally the “shared household”; a joint family was defined as being “joint in food and worship”. The PWDVA built on these notions and secularised this concept, thus making the right to reside available to women of all religious communities. The broad definition of the “shared household” in the PWDVA is in keeping with the family patterns in India, where married couples continue to live with their parents in homes owned by the parents. All this and much more was ignored by the court. Against this background, it is important to revisit the issue of domestic violence in India and explain why the law was enacted, what ends were intended to be served and what gaps in the existing legal framework it was intended to plug. It needs to be appreciated, particularly by the judiciary, that every provision of the PWDVA was meant to address a particular need. Thus, this paper is partly meant to be a chronicle of the campaign for the law on domestic violence and partly an occasion to reflect on how best the law has been able to serve the purpose with which it was enacted. Section 1 gives a brief background to the feminist campaigns that led to revisions in criminal law, thus forcing the state to intervene in cases of violence in the home, while Section 2 details the problems in the criminal law regime that led to the conceptualisation of a civil law to deal with domestic violence. Sections 3 and 4, offer a detailed chronicle of the campaign

4

Indira Jaising

for the PWDVA, the drafting history and the legislative process that it went through. This is followed by a discussion on the post-enactment developments and the monitoring of the law that, Lawyers Collective (LC) has been a part of. The paper ends with some reflections on the current challenges that the law is faced with.

Feminist Campaigns against Violence in the Home While the PWDVA itself was the culmination of a sustained campaign spanning over a decade, broadly speaking, it was also part of a longer history of feminist engagement with violence against women, beginning in the 1970s. The campaign against dowry and related violence in the mid-1970s was possibly the first time the issue of violence at home was discussed in public. The agitations by feminist groups across the country were able to attract the attention of the state to the growing incidents of the so-called death-by-fire. Such incidents were (and even now are) seen as accidents and not investigated properly. The campaign highlighted the difficulties in invoking the law in cases of dowry-related violence, for a range of reasons. For instance, dying declarations by women were seldom treated as evidence against the husband and in-laws and even cases that were registered on the basis of dying declarations were later dismissed by the courts on the ground of inadequacy of evidence. Thus, charges of murder or abetment to suicide could not be successfully invoked. Similarly, police would be reluctant to intervene, arguing that it was not the task of the police to intervene in “family quarrels”. The campaign led to the Criminal Law (Second Amendment) Act in 1983, which introduced Section 498A in the Indian Penal Code (IPC). Under this provision, “cruelty” to the wife by the husband or his relatives was made a cognisable, non-bailable offence punishable with imprisonment up to three years and a fine. Cruelty was defined as including both physical and mental cruelty and any harassment associated with demand for dowry. Similarly, Section 304B was introduced in the IPC in 1986 which created a new offence of “dowry death”. This provision made it possible to prosecute the husband and

Bringing Rights Home

5

in-laws of a woman, if she died as a result of burns or any other injury within seven years of marriage, under suspicious circumstances and if it could be shown that she was subjected to cruelty or harassment by the husband/in-laws in relation to demand for dowry. However, it was only after the new provisions were sought to be activated in the courts, that the women’s movement realised that the focus on dowry-related violence and death had been rather narrow, for it ended up distracting attention from the other numerous instances of violence that women were faced within the home, which were not necessarily dowry related. While it was still possible to bring cases of everyday violence against women in the home within the scope of Section 498A, it was not possible to use 304B, if the violence and the eventual death were not linked with dowry. And also, only married women facing violence at the hands of the husband or their families could claim relief under 498A. Thus a lot of other forms of violence faced by unmarried women, old women and children could not be brought under this section. It did not protect women from violence in natal relationships or in relationships that have not received the legal sanction of marriage. The other problematic aspect of this provision was the definition of “cruelty” itself. Cruelty was defined to mean any wilful conduct which could have driven the woman to commit suicide or caused grave injury to her or posed a danger to her life, limb or health (either mental or physical). The definition was worded in such vague terms that it was difficult to bring issues of sexual violence, economic violence or even threats of violence within the ambit of the section. The experience with using this section in cases showed that the threshold of the impact of violent conduct on the woman, required to be proved was so high, that many forms of cruelty fell through the net. A woman had to prove that she was driven to contemplate suicide or that her life was in danger, before she could access the law. Ultimately, it was entirely on the discretion of the police as to whether the conduct of the husband was of such a nature as mentioned above. Section 304B came into play only after the woman was dead and Section 498A, which was meant to protect her from harassment and violence was assailed by the problems discussed above, thus making the relevance of law for women facing violence at home rather limited.

6

Indira Jaising

The Need for a Civil Law on Domestic Violence It is relevant to note that criminal law is geared towards the prevention and deterrence of crime. While classifying certain practices detrimental to women as “crimes” is relevant from the point of view of putting the issue on the agenda of the state, criminal law itself has little to offer with respect to taking care of the woman’s immediate needs of protection, shelter and monetary relief. Also, relying on criminal law remedies alone to address domestic violence does not fully recognise the responsibility of the state towards the victims of violence. On the other hand, existing civil law remedies were unable to provide effective and timely reliefs to women facing violence. A persistent problem in cases of domestic violence is that women are thrown out of homes and then the house is sold or rented to dispossess the women indirectly. Although sometimes, the court can be convinced to give injunction orders to prevent women from being thrown out, proceedings under civil law are slow-moving and time-consuming. Even when injunction orders are available, the enforcement is weak due to absence of penalties for violation. Additionally, there is no provision for granting injunction orders or protection orders on an emergency basis, with the result that women do not have any relief during the course of the proceedings. Often the remedy can only be exercised when it is coupled with a petition for divorce. All these considerations made it imperative to conceptualise a law on domestic violence that would be a combination of both civil and criminal law elements. A civil law that would, on the one hand, restrain the abuser from committing violence and on the other, provide for the other needs of the woman faced with violence. At the same time, punitive provisions would ensure the enforcement of the orders of the courts. While doing so, no change has been made in the existing Criminal Law of Section 498A IPC. As a result, a woman can use either the criminal law or civil law or both. The following sections describe in some detail the process of framing such a law and some of the key issues that were encountered on the way.

Bringing Rights Home

7

The Campaign The involvement of LC with the process of formulating a law on domestic violence began when the National Commission for Women (NCW) requested LC to prepare a draft bill on domestic violence in 1993. The first draft for a civil law on domestic violence was prepared and presented to the NCW in 1994. But, a more focused campaign for the law began only in 1998. It was realised that the first step should be to give greater visibility to the issue of domestic violence and introduce the legal community to the issues at stake. For example, it was essential to create a consensus among the lawyers and the judges that domestic violence was indeed a serious issue, but without effective legal remedies. It was essential for the legal community to appreciate the realities of domestic violence, the inadequacies in the then existing discourse of cruelty/dowry harassment/dowry death and the demands of the women’s movement with respect to a specific law on domestic violence. This led to a national-level colloquium held in 1999 on domestic violence, involving lawyers, academics, activists and most importantly, the appellate judges. The colloquium entitled “Empowerment through Law” was an important milestone as there was a wide acknowledgement that what set apart domestic violence from other forms of violence against women, was that it occurred within the framework of intimate relationships in a situation of dependency, making reporting and access to legal aid and other support services difficult.6 Moreover, the fact that domestic violence exists, was not even recognised by the law. The bill drafted by LC was extensively discussed at the colloquium and given a more concrete shape.

The Lawyers Collective Bill on Domestic Violence The draft bill was visualised as an emergency law providing immediate and effective relief to a woman facing domestic violence. When a woman is faced with domestic violence, the primary aim of any intervention—legal or otherwise—should be to stop the violence

8

Indira Jaising

and provide for ways to protect her from further violence. Additionally, she would require shelter, medical aid, legal aid, monetary relief, etc., that will help her to build a life away from an abusive relationship. In the absence of violence, a woman may be encouraged to think of her long-term options including divorce, maintenance, reconciliation or criminal prosecutions. The following were some of the salient aspects of the LC Bill. DEFINITION OF DOMESTIC VIOLENCE The bill had a fairly broad definition of what constituted domestic violence. The experience with using Section 498A in cases of domestic violence showed that it was extremely difficult to convince judges of the existence of violence in a relationship. Although the term “cruelty” in 498A encompassed both physical and mental cruelty, it was difficult to bring the subtleties of everyday violence in intimate relationships within the ambit of the law. Even when the judges were convinced of the existence of “cruelty”, they tended to play down the possible impact of it and often asked the women to “forgive and forget”. In order to address the judicial subjectivity in determining what constituted as violence and to counter the trivialising discourses that downplay the severity and seriousness of violence at home, the LC Bill included the unnamed aspects of everyday violence. Thus, the definition of domestic violence named a range of harms, injuries and threats that degrade and terrorise women. The definition included physical, sexual, verbal, emotional and economic abuses, with each aspect further defined with illustration. The point of providing such an expansive definition was not to put a seal on the conceptualisation of “violence”, but to indicate that certain forms of behaviour must be seen as exercise of sexual power and hence, must be condemned. It is surprising that for a country that has non-violence as its foundational faith, it took more than 50 years to put in place a definition of violence against women. DOMESTIC RELATIONSHIP The bill was an innovation over the traditional understanding of domestic violence, in that it did not limit the protection against

Bringing Rights Home

9

violence to marital relationships alone. Thus, it introduced the concept of “domestic relationship” which included all relationships based on consanguinity, marriage, adoption and even relationships which were “in the nature of marriage”. Including relationships outside the marital context within the scope of this law was necessary in view of the absence of compulsory registration of marriages in India, which leaves a majority of women outside the domain of legal protection. Hence, the term “matrimonial relationship” was replaced with “domestic relationship”. The site of violence, the home, being the private domain was intended to be brought within the purview of the law. Daughters who are thought to have little or no rights in ancestral homes or in any event, are seen as outsiders and waiting to be married off; widows who are seen as having no right to continue to live in the house after the death of the husband; mothers and old parents, seen as a nuisance by children, are all vulnerable to abuse in the home and hence, were included within the purview of the law. SHARED HOUSEHOLD AND THE RIGHT TO RESIDENCE The most important aspect of the bill was the concept of right to residence. Usually, this right either vests in those owning the premises or those in whose name the premises are leased. As it happens, in most cases, it is the male members of the family who have an effective control over the premises. The unequal power relations in the private sphere increases the vulnerability of women, who continue to be in violent relationships for fear of dispossession and destitution. As has been observed, when a woman is thrown out of the house, there is little that she can do in the absence of her formal legal title to the house or a stated right to reside in the house belonging to the husband, partner, in-laws, etc. In fact, married women have less protection against being thrown out of the house than tenants have against being evicted. While tenants and trespassers can only be evicted by “due process of law”, women could simply be pushed out of the house. The objective of the law was, therefore, to provide the “due process” protection to the women in domestic relationships. Given that women in non-matrimonial relationships were to be covered by the law, the term “matrimonial household” was replaced

10

Indira Jaising

with “shared household”. The bill gave the women the right to reside in the “shared household”, even in the absence of a formal title over it. What makes it the “shared household” is not the ownership pattern of the home, but the fact of residence in the home in a conjugal or family relationship. This does not create a substantive right over the property, but is a safeguard against dispossession. PROTECTION OFFICERS In the feminist campaigns to have more and more laws to address violence against women, what was entirely missed was the fact that the entire justice delivery system—the police and the courts—were largely inaccessible to the women. Prior to the enactment of the PWDVA, the women faced with domestic violence could either approach the police or their natal families. Because of the strict divide between the public and the private spheres and the deference that the “family” has traditionally enjoyed as a “private space”, the police would be reluctant to intervene. Even the natal families would often persuade or coerce the women to return to the abusive home. Recognising this to be a major barrier between the women seeking justice and the legal remedies, the bill provided for protection officers. It was proposed that the protection officers would play the role of being the link between the aggrieved women and the legal system. The role of the protection officer was envisaged as assisting the woman in accessing the court and other support services (such as legal aid, medical facilities, shelter homes, etc.), assisting the court during the course of the proceedings and in the enforcement of orders. The protection officers were to be the “eyes and ears” or in other words, the “outreach arm” of the court who would help the aggrieved women gather evidence to support her case in the court. RELIEFS UNDER THE LAW In keeping with the objectives of the law and the rights recognised, the bill provided civil reliefs in the form of protection orders or “stop violence” orders, residence orders, including orders restoring her to the shared household, preventing dispossession, restraining the

Bringing Rights Home

11

respondent from entering the shared household, etc., orders for monetary reliefs including maintenance; compensation orders that are aimed at providing damages for the mental injury suffered by the aggrieved person and temporary orders for custody of the children. The civil nature of the reliefs was deemed appropriate in recognition of the fact that a woman facing domestic violence requires holistic support, which cannot be met through a criminal proceeding or a divorce petition.

Consultations on the Bill with Women’s Groups Between 1998 and 2001, LC began a dialogue within the women’s movement on the draft proposal. The dialogue involved a series of consultations and meetings with different women’s organisations in various parts of the country on each aspect of the law. The draft bill was also widely circulated among lawyers for their feedback and criticisms. The draft proposal was, thus, revised after every such consultation. It is instructive to visit some of the debates that ensued at these meetings and the questions and doubts that were raised. For one, it helps to understand the context of the law better and brings greater clarity vis-à-vis the nature and scope of the law. It also attests to the fact that the law has emerged from a wide process of debate and deliberation within the women’s movement. A much debated issue was whether the proposed law should be gender-neutral and extend its protection to men faced with violence in the home, as well. The wide consensus from all groups involved was that the bill had to be gender-specific in nature since the objective was to protect women due to the pervasive problem of gender inequality. The violence faced by women is a gendered phenomenon that reproduces and reinforces gender inequality and hence, a gender-neutral law would defeat the purpose of a law on domestic violence. And given the power equation in the home, the men could use a gender-neutral law to dispossess women from the homes. It is in recognition of this gendered power imbalance, that the Constitution enjoins upon the state to make “special provisions” for women and children in its pursuit of prohibiting discrimination on grounds of sex.

12

Indira Jaising

Keeping in mind the fact that often children are also victims of domestic violence, one of the initial drafts of the law allowed a child to bring an application under this law, if represented by a parent or guardian. Accordingly, there was a definition of “applicant” in the draft. There were, however, concerns raised by women’s groups, that if such power of representation of a minor child is given to both parents, there may be a possibility of the father (if he is the abuser) using this law against the child’s mother. The father could tutor the child to depose against the mother. He could indirectly achieve what he is forbidden under the law to do, i.e., depriving the woman of her right to reside in the house. Therefore, as a safeguard against misuse in the law, the draft was amended to provide that only a mother who was herself an aggrieved person under the law could bring an application on behalf of her minor child who has also faced domestic violence. Another major area of contestation was whether women could be made respondents in a case of domestic violence? Initially the bill had defined the “aggrieved person” as a woman and the “respondent” as a man. However, it was felt that the new law had to be consistent with Section 498A which allowed a criminal complaint for cruelty to be filed against all relatives and the husband including female relatives. Hence, a proviso was added to the definition of “respondent” by which the aggrieved women were enabled to bring action against a “relative” of the husband/male partner so that both men and women committing violence could be made respondents and relief sought against them. The intention was to allow married women to file applications under the law against their mother-in-law or sister-in-law or other female relatives through marriage, if they were responsible for the violence. Similarly, an earlier draft of the bill allowed dispossession orders to be passed against both men and women, if they are abusers. However, a concern was expressed that a man might set his mother up as an aggrieved person under this law to dispossess his wife of her residence—thereby indirectly achieving what the law had sought to prevent. And also the opposite, with the dispossession of old mothers by their sons through their wives or sisters. At the same time, it was important to ensure that the protection of the law was not weakened in any way. The intention of this law was not to classify offenders according to their sex. It emerged,

Bringing Rights Home

13

however, that an effective compromise would be if the order directing the respondent to remove himself from the shared household was not made available against women respondents. After extensively debating the issue of possible misuse of the law vis-à-vis reliefs against women offenders, it was agreed to include a proviso, which limited the effect of dispossession to men alone,7 while all other reliefs would equally apply against both men and women.

The Legislative Process After going through a series of consultations and meetings, the final version of the bill was submitted to the National Commission for Women, the Department of Women and Child Development and other government agencies.

The Government Introduces its Own Bill On 8 March 2002, the National Democratic Alliance (NDA) government, introduced a separate bill entitled, “Protection from Domestic Violence Bill, 2001” (hereinafter, GOI Bill) in the Lok Sabha. At one level, the GOI Bill was an acknowledgement that domestic violence was a serious issue requiring specific legal intervention. There has been a consistent denial of the existence of domestic violence against women and a refusal to address the issue. To that extent, the introduction of the GOI Bill was a significant victory. However, in terms of content, the GOI Bill not only fell short of what the women’s movement had been asking for, but it was feared that if enacted, it might have dangerous implications for women facing domestic violence. The emphasis of the GOI Bill, it appeared, was the preservation of family rather than preventing violence against women and protecting their right to a life free from violence. The scope of the GOI Bill was much narrower than the LC Bill, in terms of categories of aggrieved persons and limited with respect to the nature of reliefs available. The definition of domestic violence in the GOI Bill, among other things required the conduct/assault of the respondent to be “habitual” or

14

Indira Jaising

what made the “life of the aggrieved person miserable by cruelty”. This was totally unacceptable as every single act of violence degrades the woman even if the abuser is not “habitual” in his behaviour and she should be entitled to seek legal redress against the same. The other elements of the definition were also vague as the bill did not define what would constitute “cruelty” or how to assess “misery” of the aggrieved person. As per the GOI Bill, the respondent was required to be a “relative” of the aggrieved person, the term “relative” defined as persons related by blood, marriage or adoption. The implication of this was that women who were in relationships other than legally valid marriage were excluded from the purview of the law. Section 4(2) of the bill allowed the respondent to take the plea of self-defence in cases of domestic violence. Normally, the plea of selfdefence is available to the victims of a crime; however, the GOI Bill gave the defence to the alleged perpetrator of the crime. The respondent, thus, could get away even after brutally assaulting a woman on the pretext that such conduct was meant for his own protection or for the protection of his or even another person’s property. A major shortcoming of the GOI Bill was that there was no declaration of rights of the aggrieved person. There was no provision indicating that the woman in a domestic relationship had the right to reside in the shared household. One of the major lacunae in our matrimonial laws is the fact that none of them, whether Hindu, Muslim, Christian or Parsi, contain any such declaration of a right to reside in the matrimonial home.8 As explained earlier, this is the root cause of the vulnerability of a woman in her matrimonial home. To provide against such situations, the LC Bill had conceptualised the right to reside in the shared household coupled with the stop-violence orders. The GOI Bill, however, did not have any provision of immediate relief to the woman. It also did not provide a time frame within which to complete the proceedings. It is important that interim relief is provided immediately on application, by the magistrate, pending the hearing. This may or may not be confirmed after the hearing. However, the GOI Bill followed the usual practice as per the Code of Civil Procedure and, thus, it meant that women will get relief only after summons was served to the respondents. As a result, it could take months for the women to get relief as most often the respondents devise ways to

Bringing Rights Home

15

avoid service of summons. Thus, the critical importance of providing immediate interim relief was not addressed by the GOI Bill. The GOI Bill also had a provision requiring mandatory counselling for the aggrieved person and the alleged abuser. This was unacceptable as it put the abuser and the victim on the same plane. Counselling is definitely one of the methods of correcting abusive behaviour. But why empower the magistrate to insist on “mandatory” counselling of the aggrieved person as well? Clearly the mandatory nature of the counselling was not meant to help the woman address the trauma of violence. Rather it could easily be a means to convince her to “adjust” to her situation and continue in an abusive relationship.

The Parliamentary Standing Committee In response to the obvious outrage expressed by women’s groups against the GOI Bill, it was referred to the Parliamentary Standing Committee on Human Resource Development to examine the provisions of the bill. Between May and December 2002, the committee heard the views of the Department of Women and Child Development, invited memoranda from individuals and organisations and also received oral evidence and presentations by different women’s groups. LC put forth its submissions before the committee, wherein it pointed out the flaws and omissions in the GOI Bill and contrasted them with provisions of the LC Bill. It was impressed upon the committee that arriving at settlements and salvaging marriages should not be the function of a law on domestic violence. The report of the standing committee, submitted in December 2002, reflected that most of the suggestions made by LC were accepted by the committee. On the issue of not including women falling outside the narrow scope of the term “relative” within the ambit of the Act, the response of the state was that “such women as have been living in relationship akin to marriage without legal marriages were not included simply because the prevailing cultural ethos of the nation did not encourage such relationship”. The committee in its report stated that there were, in fact, numerous cases of men and women living together without valid marriages and yet having social sanction. Besides, the primary

16

Indira Jaising

issue in providing relief to women faced with domestic violence was the recognition of the woman’s human right to a dignified life and not the propriety of the relationship she was in. Thus, it concluded that providing relief under the bill to a woman whose marriage is not legally valid will not be in conflict with the existing laws and will not give any legal sanction to illegal marriages. The committee also opined that there was no need to enable the respondent to take the plea of self-defence in the bill and hence, the clause should be deleted. Similarly, the committee accepted the suggestion that the bill ought to carry an unambiguous declaration of the women’s right to reside in the shared household and the magistrate should be obligated to pass orders accordingly. In addition to accepting the major demands of the women’s groups, the committee also asked for better enforcement mechanisms to be incorporated in the bill and asked the state to address the issue of violence against women through other means in addition to the law. However, the campaign was not able to achieve anything substantial in the two years following the recommendations of the standing committee, as there was no initiative from the government to reformulate the bill in accordance with the report of the standing committee. LC continued with its efforts during this time, simultaneously trying to emphasise the need for this law with the government and sustaining the consensus on the issue among the women’s groups. Petitions were sent to the minister of human resources development by different women’s groups, urging the government to introduce the bill in the Parliament with amendments suggested by the standing committee. However, in February 2004, the Lok Sabha was dissolved and with it the bill also lapsed.

Lobbying with the New Government In May 2004, the United Progressive Alliance (UPA) coalition came to power after the election. It was regarded as a progressive step and a new beginning when the enactment of a civil law on domestic violence was included in the Common Minimum Programme of the UPA coalition. This was an important step as it gave a political significance to

Bringing Rights Home

17

the issue of domestic violence. In July the same year, a final draft of the bill, after extensive consultations, was presented to the minister of human resources development, which was then accepted and referred to the Department of Women and Child Development. For the next one year (July 2004–June 2005), the bill kept moving back and forth between government departments and as a result, certain things got left out from the final bill that was presented to the cabinet. One such instance was the definition of the “applicant” that was removed from the bill. The implication of this deletion is that it is still unclear as to how applications on behalf of minors can be moved under the Act.9 Similarly, there were certain additions that were not in keeping with our demands. For instance, the provision for joint counselling of the parties in Section 14 and Section 15, authorising the magistrate to take help from persons involved in “promoting family welfare” in any proceeding under the Act, is a provision that could lead to coerced reconciliation, that had been opposed to from the very beginning. Another significant provision dropped was the requirement to monitor the functioning of the Act by the state governments. In June 2005, the draft Protection of Women from Domestic Violence Bill received cabinet approval and the bill was tabled in the Parliament in July. Members of LC, along with a number of other women’s organisations were present in the Parliament when discussions on the bill took place. Surprisingly, no questions were asked about the need for a law on domestic violence by any political party. One did not know if it was a reflection of a gradual social recognition of domestic violence as an issue of immediate concern or i t was plain apathy towards a law which was being enacted simply to fulfil an election promise. Certain members of the house expressed reservations regarding the inclusion of “relationships in the nature of marriage” within the purview of protected categories of women under the law. It was said that we were introducing concepts alien to Bharatiya Sanskriti, which would send across the wrong message to the society. However, the bill was unanimously passed by the Lok Sabha on 22 August 2005 and by the Rajya Sabha on 24 August 2005. It took another year for the assent of the President of India and the Protection of Women from Domestic Violence Act, 2005, to come into force on 27 October 2006.

18

Indira Jaising

Post Enactment Developments The PWDVA provides for an inbuilt mechanism to facilitate the entire system of access to justice. It identifies specific functionaries such as the protection officers and services providers whose primary duty is to assist women in accessing reliefs provided under the law. A crucial step towards ensuring the success of any law is monitoring its implementation. Monitoring a law is essential in order to put in place the basic infrastructure required to guard against non-implementation and also to assess whether the law is able to the fulfil the objective that it was enacted for. LC has taken the initiative to monitor the implementation of the Act, in the absence of any such initiative from the state. One hopes that eventually, this role would be taken up by the government to monitor the progress of its own duties and obligations under the law.

First Monitoring and Evaluation Report (2007) The First Monitoring and Evaluation (M&E) Report analysed the performance of the PWDVA, in the first year of its existence. The primary inquiry of the report was to what extent the state had put in place the necessary infrastructure needed for the implementation of the Act, like appointment of protection officers, service providers, medical facilities, etc. And we also wanted to know how the law was being used by lawyers and interpreted by the judiciary, particularly what kind of orders were being passed by the lower courts. Knowing fully well that it was too soon to make an assessment of the law, we decided not to arrive at conclusions but only to document some of the trends that could be observed with respect to the implementation of the Act. Looking at the available data, we observed that the implementation of the Act was not uniform across the country. In most states, the protection officers were appointed at the district level and in fact, existing administrative officials were doubling up as protection officers. There were states like Rajasthan, Punjab and Haryana, where

Bringing Rights Home

19

protection officers had not been appointed. Protection officers have a specific role to play in facilitating the women’s access to courts and a range of other services that the Act refers to. The absence of protection officers and negligible state-provided infrastructure meant that the aggrieved persons had to rely on the police and the existing machinery of the courts for activating the law. In most of the other states, women who could afford to hire lawyers approached the courts directly, while the others approached the protection officers first. Sometimes the courts sought the assistance of the protection officers, if the situation demanded. However, the lack of general information about the existence of protection officers and/or their inadequate numbers was seen as a serious handicap to women accessing the law. Andhra Pradesh seemed to have the best system in place, where the police, protection officers, service providers and legal aid service authorities coordinated their services to facilitate women’s access to courts. The police, which continue to be the first port of call for women in distress, were trained to set the Act in motion. Data from the orders of the lower courts showed that primary users of the law were married women, although in a small number of cases, the petitioners were widows and unmarried daughters. As of 31 July 2007, 7,913 cases were filed across the country, under the PWDVA. Rajasthan had the highest number of cases filed under the Act (3,440) although protection officers had not been appointed in the state. Also, it was found that the most commonly granted relief was for maintenance followed by residence orders and protection orders. This was possibly because magistrates are familiar with granting maintenance orders under Section 125 of the Code of Criminal Procedure (CRPC). But the overall pattern of orders sought and granted was too diverse for drawing broad conclusions.

Second M&E Report (2008) In the Second M&E Report, LC asked the same questions as the first one. In addition, LC wanted to know the extent to which gaps identified in the first report were being fulfilled; whether the “best practices” recommended in the First M&E Report still stood; how effective was

20

Indira Jaising

the infrastructure in facilitating women’s access to court and other services and what was the jurisprudence that was being evolved by the high courts and Supreme Court on the PWDVA. By the second year of its existence, there were 22 reported judgments under the Act delivered by various high courts. Significant among these was a judgment of the Delhi High Court upholding the constitutional validity of the PWDVA on the ground that the genderspecific nature of the law does not violate the guarantee of equality as it is a “class legislation” aimed at protecting women as a class that is disproportionately vulnerable to violence.10 A judgment of the Madhya Pradesh High Court showed that the question of whether women could be respondents under the law, which was a hotly debated issue prior to the enactment, had continued to be a contentious issue even after the law had come into force. The case, Ajay Kant and Others vs Alka Sharma11 arose in the context of an application filed by a wife against her husband and mother-inlaw after she was dispossessed from her matrimonial home, following dowry-related harassment. Based on a literal interpretation of the provision, the court held that a proceeding under the Act can only be initiated against an adult male person. The rationale provided by the court makes it clear that the interpretation of the term “respondent” is actually based on what the court perceives to be essential for safeguarding women’s interests. Interestingly, however, in its attempt to provide protection to women, the court failed to recognise the specific gender-neutral language of the proviso to Section 2(q), which uses the term “relative of husband or male partner”. Thus defined, a relative can be a male or a female and consequently, the Act also protects women from violence perpetrated by the female family members of a male respondent. Significantly, a Madras High Court judgment held that the Act could be invoked even in cases arising before the Act came into force. In Dennison Paulraj and Others vs Mrs Mayawinola,12 the wife was forced to leave the matrimonial home following continuous harassment and dowry demands by her husband and in-laws. Although she left the matrimonial home prior to the enactment of PWDVA (2005), she claimed that the threat and harassment continued. The court concluded that the respondent had suffered part of the abuse after

Bringing Rights Home

21

the commencement of the Act in the form of anonymous phone calls threatening violence. The court pointed out that in any case, the issue of retrospective application of penal statutes does not hold true in the case of PWDVA as Section 31 penalises the breach of a protection order rather than the act of domestic violence itself. The law received a very significant setback with the delivery of the judgment in Batra vs Batra, (2007) 3 SCC 169, on December 2006 by the Supreme Court of India. The court held that the right to reside in the shared household would only be available if the household was owned by the husband/partner. Hence, women who lived with their husbands in joint families who live in ancestral homes, not necessarily in the name of the husband/partner, have been denied the right of residence in the shared household. The judgment cannot be understood in any legal framework as it obliterates a clause in the section to the effect that the right to reside will be without reference to the nature of ownership of the property and will depend only on whether a relationship existed and whether de facto the woman has resided in the household. It is a judgment which calls for legislative undoing. In the First M&E Report, it was noted that in a number of cases the magistrate had refused to grant residence orders to the aggrieved women based on the Batra judgment. The second M&E, however, found that a few high court judgments had interpreted “shared household” based on the factual context and not on the basis of semantics. In P Babu Venkatesh and Ors vs Rani13 the Madras High Court held that the ratio laid down by the Supreme Court in Batra could not be applied as the facts clearly demonstrated that the husband had transferred the household into the name of his mother with the intention of defeating the rights of the wife, after the matrimonial dispute arose. In arriving at its conclusion, the court recognised the fact that before the wife’s dispossession, both parties resided jointly in the said household. Similarly, in Vandana vs Mrs Krishnamachari14 the Madras High Court held that a narrow interpretation of the provisions would leave many women in distress and without any remedy. The judgment held that the question is not whether the woman had “lived” in the shared household, but whether she has a right to live in the same. In another case appearing before the Delhi High Court,15 although the marriage was solemnised, the wife was not allowed to enter the matrimonial home.

22

Indira Jaising

She filed a suit claiming the right to reside in the matrimonial home. The husband argued that she had no such right as she had not “lived” in the matrimonial home. Although the judge concluded that the woman did not have a right to reside as the house was owned by the mother-in-law, it was held that she could be dispossessed only with “due process” of law and cannot be physically thrown out. This judgment actually shows a keen appreciation of the rule of law and respect for rights and, thus, makes available to the woman, safeguards that are otherwise granted to tenants and trespassers.

Third M&E Report (2009) The third report emphasised that the exercise of monitoring and evaluating needed to be taken on a yearly basis in the initial years of the Protection of Women from Domestic Violence Act 2005 (PWDVA) until a uniform interpretation of the law evolved. In addition to presenting court order analysis and infrastructure assessment, the Third M&E Report presented data on knowledge, attitudes and practices (KAP) of the judiciary, protection officers (POs) and police on various aspects related to the PWDVA and women, and explored how they influence the implementation of the law. Data was collected from Delhi and Maharashtra and for comparative purposes data related to police officers and protection officers from Rajasthan was also included. The report analyzed a number of judgments passed under the PWDVA by the high courts and the Supreme Court. In terms of challenging the constitutionality of the Act, in Dennison Paulraj and Ors v. Union of India, MANU/ TN/09757/2009; Writ Petition No. 28521 of 2008, the Court held that Article 15(3) allows the state to discriminate in favour of women and children. In Menakuru Renuka and Ors v. Menakuru Mona Reddy and Ors, Crl. P. No. 4106/2008, the court examined the definitions of respondent, domestic relationship and other provisions. It was held that the respondent can only be an adult male person, but an aggrieved female can file a complaint against a relative of the husband or the male partner. In Neetu Mittal v. Kanta Mittal and Ors, 152(2008)DLT691, the court held that the son can live in the house of parents as a matter of right only if the house is an ancestral house, in which he has a share that can be enforced through partition. In Nand Kishor v. Kavita and Anr,

Bringing Rights Home

23

MANU/MH/0957/2009, Criminal Application No. 2970 of 2008, the court held that it is not necessary in each and every case to obtain report from the PO or SP to decide application for interim relief. In Sou. Ratnabai Jaising Patil v. the State of Maharashtra, Criminal Appeal No. 359 of 2008, the High Court of Bombay provided a number of directions to the government for effective implementation of PWDVA in the state as one of the crucial legislations to address violence against women. It was recommended in the report that trainings needed to be undertaken with significant stakeholders to clarify that domestic violence is not restricted to just physical violence, but also sexual, domestic and emotional abuse. It was identified that there was a clear need to further explain the scope of “shared household” under the Act and the right to reside as providing a right of residence, irrespective of ownership, title or interest in the premises. Clarification and revisiting the definitions of aggrieved persons and respondents was also needed. It was also noted by the report that there was also a need to understand counselling as mandated by the law and its intent to counter practices that might work against that intent. The report concluded that infrastructural aid and institutional status was needed for POs. It was also necessary to review and ensure uniformity in terms of qualifications of POs. There was a need for coordination between stakeholders and budgetary allocations should increase. It concluded that the state needed to adopt a comprehensive system for the monitoring and evaluation of the implementation of the law on an annual basis. There was an urgent need to ensure accountability through developing a robust system of mandatory reporting on specific indicators for all stakeholders, including the judiciary.

Fourth M&E Report (2010) In the Fourth M&E Report, orders from seven states have been analysed namely, Delhi, Maharashtra, Himachal Pradesh, Andhra Pradesh, Chhattisgarh, Jharkhand and Assam. In Sanjay Bhardwaj and Ors v. The State and Anr,16 Crl. M.C. No. 491/2009, the court pointed out that no law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Emphasis was also given to the fact that the parties in this case were both equally qualified.

24

Indira Jaising

Referring to the constitutional guarantee of equality between the sexes the court stated that a similarly qualified but unemployed husband and wife cannot be treated differently. This judgment provides an example of using the equality argument to deny the legitimate entitlements of a wife. It also ignores the reality that very often, women leave their employment after marriage and may require significant reskilling before finding suitable employment and income that is equal to the husband’s, even if they are similarly qualified. The wife and children are entitled to some sustenance and the assertion of the husband that he is earning an amount, which is not sufficient to provide maintenance cannot be accepted. This principle was laid down by the Karnataka High Court in R. Ramu v. Smt. Leelavathi, 2010 (1) Kar LJ 376. In contrast, in the combined hearing of the cases of Amit Khanna v. Priyanka Khanna and Ors and Priyanka Khanna v. State, Crl. M.C. No. 4066 of 2009 and 1416 of 2010 and Crl. M.A. No. 13807/2009, the Delhi High Court reduced the maintenance awarded on the ground that evidence of vast property owned by immediate family does not create a presumption in favour of the husband having a similar standard of living. The appellate court, in this case, had enhanced the maintenance amount based on the fact that the husband was a man of status and owner of vast movable and immovable properties. Throughout this year, the courts took various decisions on the issue of female respondents. In Varsha Kapoor v. Union of India and Ors, Writ Petition (Crl.) No. 638 of 2010, the Delhi High Court sought to segregate the definition of “respondent” under Section 2(q) into two independent and mutually exclusive parts: (i) Where the AP is in a domestic relationship with the other person, such person has to be an adult male person, as per the main provision and (ii) the proviso, however, is limited in nature as it is applied only to cases where the AP is married or in a relationship in the nature of marriage. Only with regard to such a limited and specific class of persons, the definition of “respondent” has been widened to include a relative of husband or male partner. It was pointed out that leaving female relatives out of the scope of the PWDVA would mean that the husband or male relatives would ensure that the violence is perpetrated by the female relatives thereby frustrating the object of the law. In Sri. Amruth Kumar S/o Rajgopal and Smt. Anandamma W/o Amruth Kumar v. Smt. Chithra Shetty W/o B.A. Raghavendra and State of Karnataka, 2010 (1) KCCR 459, the Karnataka High Court held that the right given to the aggrieved person to file complaint under the proviso

Bringing Rights Home

25

does not include the woman relative, as otherwise it would defeat the very object of the Act. In Tehmina Qureshi v. Shazia Qureshi, M. Cr. C. No. 3312 of 2009, the Madhya Pradesh High Court used the argument that since the main provision of Section 2(q) does not refer to respondent as any adult member but uses the word “male” to qualify it, the expression “a relative” in the proviso must also be considered not to include female relatives of the husband or male partner. In the Fourth M&E Report, recommendations were made that all orders that are passed under the Act must be digitised and put up on the official website, to enable monitoring and evaluation of the implementation of the Act. The Supreme Court must lay down clear guidelines on the basis of which maintenance should be awarded. While drafting these guidelines, the contributions made by the woman as a homemaker and the other non-monetary contributions to the relationship should be considered. Guidelines should be issued for incorporating mechanisms within the orders to enforce them. The provisions of Section 125 (3) Cr. P.C should be incorporated. Once an order for maintenance is passed, an account must be opened in the name of the woman in the bank and all payments must be made in that bank account. This will avoid unnecessary disputes over the amount that was paid. LCWRI in its Fourth M&E Report has suggested the following amendments to the PWDVA—the proviso to Section 12 must be deleted and it should be left to the discretion of the judge to decide whether or not to ask for a PO report. Likewise, Section 31 of the Act has to be amended to include breach of all orders. Along with which, insertion of a provision to include monitoring and evaluation of the law was also suggested. Appeals under Section 29 should be allowed only from final orders to ensure timely disposal of cases.

Fifth M&E Report (2011) The Fifth Monitoring and Evaluation Report of the Lawyers Collective Women’s Rights Initiative (LCWRI) presents a national picture of the status of implementation of the PWDVA in India, through an analysis of infrastructure provided by different states, budgetary allocations, orders passed by the magistrates and judgments of the higher judiciary and interviews conducted with key stakeholders identified under the Act.

26

Indira Jaising

The collection of primary evidence in three states—Delhi, Maharashtra and Rajasthan—to document changes from a baseline point (2009) to the endline point (2011) on select indicators, has been a significant part of the annual tracking of the law. Among other things, the Report also discussed the issue before the Supreme Court, of interpreting the law in consonance with the rights of women in “domestic relations”. In Virendra Chanmuniya v. Chanmuniya Kumar Singh Kushwaha and Anr, MANU/SC/0807/2010, Justice Ganguly expressly opined that a broad and expansive interpretation to the expression “wife” should also include cases where a man and a woman have lived together as husband and wife for a reasonably long period of time. In Velusamy v. D. Patchaiammal, MANU/ SC/0872/2010, AIR2011SC479, the concept of “relationship in the nature of marriage” was examined and it was concluded that it is akin to a common law marriage and held that not all live-in relationships belong to this category. The judgment highlighted the fact that for a relationship to be recognised as being in the nature of marriage, the parties should also have lived in a “shared household”. It also led to the controversy, where women in “live-in relationships” were referred to as “keep”, betraying entrenched patriarchal mindsets and the existence of negative stereotypes. The judgement in Eveneet Singh vs. Prashant Choudhury, Kavita Choudhury vs. Eveneet Singh, CS (OS) 1307/2010, the Delhi High Court has effectively put Batra vs. Batra, (2007) 3 SCC 169, in the context of facts and circumstances of each case. The High Court through this judgment observed that excluding the right of residence against properties where the husband has no right, share, interest or title, would severely curtail the extent of usefulness of the right to residence. Any attempt at restricting the scope of this remedy, will breakdown the safeguard provided by the law. On 31 January, 2011, the Supreme Court gave its decision in Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Ors, MANU/SC/0081/2011, which finally laid to rest the issue with respect to women respondents holding that female relatives of the husband/male partners can be made respondents under the Act. The court considered the definition of “respondent” defined under Section 2(q) of the Act of 2005 and held that “although section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of

Bringing Rights Home

27

the said definition by including a relative of the husband or male partner within the scope of a complaint. The apex court further held that legislature never intended to exclude female relatives of the husband or male partner from the ambit of complaint that can be made under the provisions of PWDVA. One of the key findings of the 2011 survey is the lack of knowledge and clarity about the Act and its implementation. An evidence of the same is the lack of the knowledge of the difference in the interpretation of both right to property and right to reside under the PWDVA by the stakeholders. The erroneous conclusion that the division of property and divorce are reliefs that can be claimed under this Act need to be clarified as they are likely to influence responses towards the women facing domestic violence. Findings of the 2011 survey have revealed in Delhi that over time, few POs seem to have mistakenly believed that the DIR and the Home Visit Report are the same. In Maharashtra, initially there was some confusion on this but, in 2011, this has been significantly reduced. However, courts must distinguish between a “home visit” and a “DIR”, as the latter does not necessarily need a home visit. Home visits may be required only to clarify disputed facts at the stay of passing orders. The PWDVA became operational in 2006. At this time, the central government did not allocate any budget for the implementation of the Act. But some states on their own volition made allocations in areas like training, capacity building and awareness generation and information, education and communication (IEC) of different stakeholders which form extremely important components for effective functioning of the Act. Of the 33 states and union territories, 13 states have a plan scheme for implementing the PWDVA. Nineteen states do not have a scheme. No information was received from Lakshadweep and the CBGA did not file the RTI in Jammu and Kashmir. Bihar, Jharkhand, Rajasthan and West Bengal have not committed resources for the PWDVA. These are also states that report a higher incidence of violence according to the National Family Health Survey, (2005–2006) Report. Findings of the Fifth M&E Report have revealed that Kerala and Bihar have made certain interventions in this regard. However, support to service providers is neglected. Madhya Pradesh is the only state that has budgeted funds for shelter homes run by private organisations. The total budget for the effective enforcement of PWDVA would be around Rs 1522 crores approx. This would include

28

Indira Jaising

all essential personnel and infrastructure necessary for implementation of PWDVA. Recently in 2012, through the decision of the apex court in V.D. Bhanot vs. Savita Bhanot, (2012) 3 SCC 183 it was held that the conduct of the parties even prior to the coming into force of the PWDVA in 2005, could be taken into consideration while granting relief under the Act. Likewise, the bench also decided that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWDVA.

Concluding Thoughts While “domestic violence” has now become a legally recognised category, violence against women in domestic relationships still persists. We are often asked how law can protect a woman from facing violence, inside the home as the home cannot be policed all the time. The question, however, fails to understand the nature of rights and the role of law in negotiating relationships. Law performs a normative function, whereby it indicates what behaviour must be deemed unacceptable. Having a law on domestic violence has the merit of putting in place a norm that violence against women is unacceptable and such a norm is backed by state sanctions. But having a norm will not by itself end violence. It is also necessary to facilitate access to justice by the endowment of material resources. Although the institution of protection officers had been created for this purpose, no permanent cadre of protection officers has been created, thus substantially diminishing the utility of the institution. Courts are unaccustomed to deal with agencies such as the protection officers and treat them in a hierarchical manner, not realising that it takes more than judges to protect women from violence. The other area of concern is that in a number of cases the courts refer the matter for counselling as a first resort, with the objective of reconciliation. Caution must be exercised in adopting the view that conciliation is the first and most viable approach that the court should take, before initiating legal proceedings. Cases where the issue at

Bringing Rights Home

29

hand is domestic violence, an approach prioritising conciliation could adversely affect the safety and security of the woman facing violence. Even in this respect, there is lack of clarity regarding the role of the protection officers. Some protection officers (also the police and magistrates) have the mistaken impression that their role is to mediate between the parties in a dispute, rather than to prevent violence from occurring and safeguarding the interests of the aggrieved women. By far the greatest challenge is to change the mindset of men in domestic relationships who continue to believe that a man’s home is his castle. The inevitable backlash is upon us. We are told that women “misuse” the law. Decoded, this means that women are actually using the law. When the disadvantaged use the law after centuries of exclusion from the legal system, they are charged with “misusing” the law, as there was never meant to be a law for them at all. What the backlash tells us is that society has not accepted the fact that women’s rights are human rights, that women have equal rights in the home and that the “man’s home” may not always be his impregnable castle. In that sense, the battle may not have been won, but a major beginning has definitely been made. The true success of the Act is reflected in the growing number of women accessing the courts. On last count, more than 22,000 orders have been passed by the courts between 1 April 2011 to 31 December 2012, indicating a spreading awareness of the existence of the Act and the benefits it can bring. This is not to suggest that all orders passed by courts are gender sensitive or that the law and the courts have been able to eliminate violence in the home. The battle for gender justice persists; the tools have been put in place.

List of Case Citations Ajay Kant and other v. Alka Sharma, I (2008) DMC 1, High Court of Madhya Pradesh. Aruna Pramod Shah v. Union of India, Writ Petition (Crl) 425/2008 (Unreported case, B P Achala Anand v. S. Appi Reddy and Another, (2005)3 SCC 313. Chanmuniya v. Chanmuniya Virender Kumar Singh Kushwaha and Anr. (2011) 1 SCC 141 Dennision Paulraj and Ors. v. The Union of India (UOI) and Ors. (2009) 6 MLJ 283 Dennison Paulraj and Others v. Mrs Mayawinola, II (2009) DMC252.

30

Indira Jaising

Eveneet Singh v. Prashant Chaudhri and Kavita Chaudhri v. Eveneet Singh 177 ( 2011) DLT 124 Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66 Jeewanti Pandey v. Kishan Chandra Pandey, (1981) 4 SCC 517. Menakuru Renuka and Ors. v Menakuru Mona Reddy and Ors. Crl. P. No. 4106/2008 Nandkishor S/o Damodar Vinchurkar v. Kavita W/o Nandkishor Vinchurkar and Anr. and Atharva S/o Nandkishor Vinchurkar, MANU/MH/0957/2009 Neetu Mittal v. Kanta Mittal and Ors. 152(2008 )DLT 691 (on file with Lawyers Collective). P Babu Venkatesh and Ors vs Rani, 2008-2-LW(Crl)451, Crl. R.C. Nos. 48 and 148 of 2008 and M.P. Nos. 1 of 2008 Priyanka Khanna v. Amit Khanna and Priyanka Khanna v. State, 2010 (119) DRJ 182 R. Ramu v. Smt. Leelavathi, 2010 (1) Kar LJ 376 Ratnabai Jaising Patil v. State of Maharashtra, Criminal Appeal No. 359 of 2008 Sanjay Bhardwaj and Ors. v. The state and Anr. 171 (2010) DLT 644, Smt Shumita Didi Sandhu v. Mr Sanjay Singh Sandhu and Others 2007(96) DR J697, IA Nos. 291 and 8444/2005 in CS (OS) No. 41/2005. Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Ors., (2011) 3 SCC 650 SR Batra & another v. Taruna Batra (2007)3SCC169. Sri. Amruth Kumar S/o Rajgopal and Smt. Anandamma W/o Amruth Kumar v. Smt. Chitra Shetty W/o B.A. Raghavendra and State of Karnataka, 2011 ( 6) Kar LJ 194 Tehmina Qureshi v. Shazia Qureshi ILR [2010] MP 296, V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183 Vandana v. Mrs Krishnamachari, OA No 764 of 2007 in CS No 548 of 2007 (Unreported case, copy on file with Lawyers Collective). Varsha Kapoor v. Union of India and Ors., (2010) ILR 4 Delhi 383 Velusamy v. D. Patchaiammal, AIR 2011 SC 479

List of Abbreviations in Case Citations AIR DLT DRJ ILR KAR LJ MANU MLJ SC SCC

All India Reporter Delhi Law Times Delhi Reported Judgements Indian Law Reports Karnataka Law Journal Manupatra Madras Law Journal Supreme Court Supreme Court Cases

Bringing Rights Home

31

Notes 1. 2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15. 16.

Preamble to the Act. AIR 1984 Del 66. (2007)3SCC169. Section 2(s). See the discussion on the concept of “residence” in Jeewanti Pandey vs Kishan Chandra Pandey, (1981) 4 SCC 517. The proceedings of the colloquium were subsequently published as Domestic Violence and Law: Report of Colloquium on Justice for Women – Empowerment through Law, 1999. Proviso to Section 19(1). Although, such a right has been developed through case law. See, B P Achala Anand vs S. Appi Reddy and Anr., (2005)3 SCC 313. While the minor female child can be argued to be an “aggrieved person” herself, the position of the minor male child under the PWDVA is still ambiguous, owing to this deletion. Aruna Pramod Shah vs Union of India, Writ Petition (Crl) 425/2008 (Unreported case, on file with Lawyers Collective). I (2008) DMC 1, High Court of Madhya Pradesh. II (2009) DMC252. 2008-2-LW(Crl)451, Crl. R.C. Nos. 48 and 148 of 2008 and M.P. Nos. 1 of 2008 OA No 764 of 2007 in CS No 548 of 2007 (Unreported case, copy on file with Lawyers Collective). Smt Shumita Didi Sandhu vs Mr Sanjay Singh Sandhu and Ors 2007(96) DR J697, IA Nos. 291 and 8444/2005 in CS (OS) No. 41/2005. Crl. M.C. No. 491/2009.

2

Conjugality, Property, Morality and Maintenance* Flavia Agnes

Introduction This essay examines the economic rights of married women in India today. The four basic concepts that are invoked while determining economic entitlements of women at the time of divorce are—“title”, “fault”, “need” and “contribution”. Matrimonial laws of most countries have adopted the principle of “division of matrimonial property” at the time of divorce which abandons the concepts of “title”, “fault” and “need” and relies primarily upon “contribution”. It takes into consideration a woman’s non-economic contribution in acquiring assets during the subsistence of a marriage. In India, we lag far behind in this respect and still follow the old English system of “separate property” (rather than the more contemporary “community of property”) where rights are based on “title” or at the most, upon economic contribution. Within these constraints, women’s economic rights revolve around the right of maintenance, the granting of which is premised on her assessed “need” and “fault”. Since this is the * This essay was originally published in Economic and Political Weekly, Review of Women’s Studies, XLIV(44): 58–64, 31 October–6 November 2009.

Conjugality, Property, Morality and Maintenance

33

only provision for economic claims within marriage, it is highly contested and a wide range of issues surface during legal contests. The important ingredients are the husband’s “obligation” and the wife’s “need”, but situated within a patriarchal order, the right of maintenance is pitted against issues of sexuality and “sexual purity”. Within pluralistic traditions and customary practices which validate “relationships in the nature of marriage”, the right of maintenance comes into conflict within the mandate of a monogamous marriage under the Hindu Marriage Act. The rights of Muslim women which are governed by a different set of rules and which have raised several controversies has also been a matter of concern and heated debate. The claims of women which are situated within these diverse premises are examined here.

Conjugality and Matrimonial Property When we examine the economic entitlements which arise out of a matrimonial relationship, we are confronted with a glaring void within the Indian matrimonial statutes which do not provide for division of property upon divorce. Thus, fear of poverty, destitution or a lowering of economic standards haunt most women during divorce proceedings. As we shall see, dominant gender ideologies shape the extent to which women are punished or rewarded within these proceedings. The husband is perceived as the primary “breadwinner” of the family and in order to facilitate this process, a woman is expected to sacrifice her career and dedicate herself completely to the task of looking after the well-being of her husband. Within the prevalent patrilocal tradition, marriage also results in migration for women, which in turn may necessitate resignation from a permanent job. A woman is also expected to be the homemaker with additional responsibilities of childbearing and child rearing. In order to fulfil these obligations, most women may have to opt out of a secure job either permanently or for a limited number of years until these demands become less taxing. Even when she is required or permitted to be gainfully employed, it would mainly be to augment the family income and her earnings are treated as supplementary income of the family.

34

Flavia Agnes

There are instances where the courts have penalised a woman for pursuing her career at the cost of her primary role as the caretaker of the family, as this act in itself can be construed as cruelty, which is a ground for divorce.1 At times the choice for women seems to be either to remain married or hold on to the job. This is a concern confined not only to the private domain of marriage and family, but spills over to the public domain of employment, where women were expected to tender in their resignation at the time of their marriage or during their first pregnancy.2 Though the situation has improved considerably in recent years in the public sector, within the private sector, employers may still force women to resign rather than pay them maternity benefits or provide crèche facilities. There is constant tension between the dual roles of a woman as the homemaker and wage earner within the sharply divided realm of the “private” and “public” spheres of women’s lives. It requires a fine balancing act to cope with both. This tension is specific to women and is linked to their assigned roles within marriage; men are spared these tensions as the primary breadwinners of the family. Ironically, a woman’s role as a homemaker has no economic value attached to it. Women’s contribution to the domestic household during the subsistence of their marriage does not get any recognition under the matrimonial statutes. India follows the common law regime of “separation of property”. Under this notion, property acquired by the husband is treated as his exclusive property. A wife does not acquire any right, title or interest in the assets acquired by the husband during the subsistence of the marriage. Since marriage is not viewed as an “economic partnership”, a woman is not entitled to claim division of property at the time of divorce. Her contribution in creating these assets by performing domestic chores is not considered to be a relevant factor. If the husband dies intestate, the widow is awarded a status no higher than that of the children, thus completely ignoring her contribution to the household and family in the form of unpaid work. She is treated as a “beneficiary” and can be willed out of his estate, in the event the husband so desires. The only provision under the matrimonial statutes which addresses the issue of property division, Section 27 of the Hindu Marriage Act, 1955 (HMA) is clad in quaint and obscure language—“property presented on or about the time of marriage which may belong jointly to both the

Conjugality, Property, Morality and Maintenance

35

husband and the wife”. Hence some courts have held that property acquired subsequent to marriage by the spouses through their own efforts and which they hold jointly would not fall within the purview of Section 27 of HMA. In Kamalakar Ganesh Sambhus v. Master Tejas Kamalakar Sambhus3 even though the wife established that she had contributed half the amount towards the construction of the house property, the Bombay High Court held that this could not be the subject matter of an order under Section 27 HMA and set aside the order of the family court on these grounds.4 A woman can claim a share in property which is purchased in their joint names as per the rules governing general property laws which foreground economic contributions. The right of residence in the matrimonial home is protected by the recently enacted Protection of Women from Domestic Violence Act, 2005 (PWDVA). While this is an important development, it does not provide any solace to a woman who wishes to opt out of the marriage. There is no concept such as a “deserted wife’s equity” or “constructive trust” which are important premises of English matrimonial law. By introducing these innovative concepts, in the absence of a statutory law, an English jurist, Lord M.R. Denning was able to protect the rights of residence of deserted wives in their matrimonial homes. In a series of cases ranging from the 1940s to the 1970s, he was able to protect the rights of deserted wives not only against their husbands but also against his creditors. For instance in 1962 in Hine v. Hine, Denning ruled that family property had to be treated differently from other forms of property and that the judge had the discretionary power to reallocate property rights between the parties.5 The discretion transcends all rights, legal and equitable and enables the court to make such order as may be fair and just. In National Provincial Bank Ltd. v. Ainsworth, he held that the bank could not claim possession against the wife who was in possession of the matrimonial home.6 He ruled that since the wife has a right to remain in the matrimonial home by a notion of constructive trust, it is unlawful for the husband to enter into any agreement designed to turn her out. Under the Indian statutes, divorced women are not protected from eviction by landlords. A recent Supreme Court ruling, B.P. Achala Anand v. S. Appi Reddy makes this amply clear, despite its positive proclamations.7 In this judgment delivered in 2004, the judiciary broke new grounds by invoking the English concept of “deserted wife’s equity” and awarded

36

Flavia Agnes

legal recognition to the woman’s right of residence by placing her in the position of a subtenant. It was held that she had a right to defend herself in proceedings initiated by the landlord for eviction which would deprive her right of possession of the matrimonial home. The court also expanded the scope of Section 27 HMA and ruled that this section could be invoked to pass orders regarding the separate property of the parties or even the tenanted premises. The decision amounted to judicial lawmaking and the court emphasised that it was using this power while responding to the demands of social and gender justice and in order to “do complete justice”. But all these proclamations did not benefit the woman concerned as she had already been divorced while the case was pending. Since the terms of divorce settlement did not contain a provision regarding the dwelling home, the apex court ruled that she had no right to the matrimonial home. The Supreme Court, in Ruma Chakraborty v. Sudha Rani Banerji, affirmed this position, where a divorced woman and her children were evicted from their home which was rented in the husband’s name, on the pretext that their right of tenancy was terminated with the divorce since this right was not negotiated during the divorce.8 The apex court held that although the right to matrimonial home exists for a deserted woman, the same could not be extended to a divorced woman. The trend followed by most countries runs counter to the position adopted by our Supreme Court in the cases discussed above. The continental law or the civil law of Europe, introduced in the nineteenth century, is based on the premise of “community of property”. Under this, upon marriage, the property of the spouses acquired after marriage is deemed as the joint property of the spouses, with equal powers of maintenance, management, improvement and disposal. Upon divorce, the property is divided equally between the spouses. Most countries which had followed the common law tradition of “separation of property”, inherited from the English legal system during the colonial rule, have gradually accepted the premise of “differed community of property”. According to this, the property remains separate until divorce with spouses having the power to manage their respective property. But upon divorce, the property acquired during marriage is deemed as “matrimonial property” and becomes divisible on an equal basis irrespective of title or financial contribution. The United States, Canada, Australia and New Zealand, are examples of this shift which occurred in the seventies when “no fault”

Conjugality, Property, Morality and Maintenance

37

divorce was introduced into the matrimonial laws. English matrimonial law has also adopted this premise. While the courts initially started by awarding one-third of the assets to the wife, the principle of equal distribution is gradually being accepted under the English law. As per the “no fault” notion, a spouse does not have to prove a “matrimonial fault” such as cruelty, adultery or desertion but divorce can be granted on the basis of “breakdown of marriage” even when the other spouse is not guilty of a matrimonial fault. As this concept would cause great economic hardships to innocent wives,9 it was deemed necessary to introduce the notion of division of property. Countries such as Singapore, Malaysia, Iran, Fiji and Tanzania, among others, have adopted the system of division of property or at least give recognition to woman’s unpaid domestic labour in the division. In this regard, India (and South Asia region as a whole) lags far behind. Thus, while there have been attempts to introduce the notion of “no fault” divorce through judge-made laws, there has not been any attempt to introduce division of property.10 In this regard, it is notable that the Law Commission Report No. 217 (March 2009), which recommended the introduction of “no-fault divorce”, contains no suggestion regarding division of property during divorce proceedings. The recommendation appears to have been made in response to popular demands, without serious attention to the potentially adverse consequences it would have upon women who have not committed any matrimonial fault which would entitle a husband to obtain a divorce. Subsequently government introduced a bill in Parliament in August 2010 to bring in the remedy of irretrievable breakdown of marriage within Hindu and Special Marriage Acts but due to opposition to it from several women’s rights groups the bill was referred to the Joint Select Committee of the Parliament which in its 45th Report submitted to the Rajya Sabha in March 2011, urged the government to consider introduction of the principle of “division of matrimonial property” into our matrimonial statutes. Again in 2012, the government introduced a revised version of the bill with some cosmetic changes to the earlier bill but this too met with severe criticism as it left the issue of division of matrimonial property to the discretion of the judges and did not define matrimonial property.11 In the Indian context, despite its derogatory connotations, the discussion over economic rights of married women must be situated within

38

Flavia Agnes

the notion of “maintenance” as it remains the only avenue for women to stake their claim of financial entitlement upon divorce. Within Indian family law, women’s economic claims arising out of a marriage contract are confined to recurring monthly maintenance or a lump sum settlement or alimony at the time of divorce. Many times settlements are negotiated through the process of mediation. During these proceedings, if the husband is desperate to obtain a quick divorce (in order to remarry) the wife does get some bargaining power to negotiate favourable financial settlements. But on the other hand, the husband is able to twist the arm of the wife by pressing for joint child custody or increased rights of access to the child. Afraid of the adverse consequences of such an arrangement, the wife may forego financial claims in order to negotiate exclusive custody of the child or limited access rights to the husband.

Constitutional Claims and Maintenance Rights As a women’s rights lawyer, I am often confronted with a provocative question—within the gender neutral language of matrimonial laws, which refers to the “husband” and “wife” as “spouses” how do we locate the specific claim of women to maintenance? I concede that “maintenance” signifies a dependency which has no place in the gender-neutral terminology of modern divorce theories. It is a need-based approach which reduces the wife to a subordinate position and does not award recognition to her as an equal partner in marriage. But we must also accept that despite the egalitarian terminology marriages continue to be partnerships based on unequal premises. The roles, responsibilities and obligations within marriage are gendered and unequal. Mere change of terminology does not transform relationships of inequality into egalitarian and equal partnerships. As per the constitutional mandate, equality can only be between equals. Treating unequals as equals only serves to widen the disparity between the two parties. The provision of maintenance is crucial to women who are in conflict marriages and to deserted and destitute women. Although maintenance can be claimed under the personal laws of the parties, most poor and destitute women opt to claim them under the summary proceedings available under Section 125 of the Criminal Procedure Code, 1973 (Cr.PC).

Conjugality, Property, Morality and Maintenance

39

This provision is a beneficial social legislation to prevent vagrancy and delinquency. The right of a woman to maintenance needs to be located within citizenship claims enshrined in our Constitution. It is grounded within the Constitutional paradigm of ensuring social justice and is reflective of a social obligation which the state casts upon economically stronger members of the family to provide shelter and sustenance to the “weaker” members, i.e., women, children, the elderly and the disabled. The provision for additional safeguards and special privileges for disadvantaged groups is grounded in Article 15 (3) of our Constitution. This was affirmed by the Supreme Court in Captain Ramesh Chandra Kaushal v. Veena Kaushal in which the court commented that Section 125 CrPC, which is specially enacted to protect women and children, falls within the constitutional ambit of Article 15(3). 12 Within the institution of marriage based on a patriarchal paradigm, as discussed above, for a vast majority of women, marriage results in economic dependency. It is in this context that statutory law and judicial interpretations must lean in favour of destitute women and vulnerable children by moving away from the rubric of formal equality of Article 14 towards substantive equality guaranteed under Article 15(3) within the Constitutional scheme, in order to set right a historical wrong. For most women, the right of maintenance forms the central core of their matrimonial dispute. It is far easier to come to an amicable settlement regarding divorce and custody while maintenance remains a contested question.

Maintenance and Morality Securing an order of adequate maintenance can be an extremely humiliating experience for women, as there is a high quotient of sexual morality that engulfs the question of maintenance. Curiously, the core of what should be an economic dispute does not revolve around questions of financial arrangements of the family unit, but hinges upon issues of sexual mores. In the context of unequal power relations prevailing within marriages, women’s economic rights are determined within these codes. Morality dictates of a patriarchal marriage are deeply entangled with the economic claims.

40

Flavia Agnes

Allegations of adultery and immorality can constantly be hurled against women. This can extend further to a denial of the marriage itself and consequentially, the legitimacy and even paternity of children. Stipulations such as those contained in Clauses 4 and 5 of Section 125 of Cr.PC also contribute to this process by linking maintenance to sexual morality: (4) No woman shall be entitled to receive an allowance if she is living in adultery. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery ... the magistrate shall cancel the order. This stipulation provides the armour for husbands to entangle women in vicious and dilatory litigation over what may be a pittance. A careful scrutiny of reported cases in any law journal reveals the extent to which allegations of sexual promiscuity are made to subvert women’s claims. To give an example, Divorce and Matrimonial Cases (DMC), a popular journal widely relied upon by lawyers practicing matrimonial law, reported in Volume I of 2001, approximately forty five cases under the title “maintenance”. In almost half of these cases, sexuality and morality were the core issues that were contested. This challenge on the ground of sexual purity of women entangles women in protracted litigation despite Section 125 Cr.PC being a summary proceedings.13 The cases referred in law journals constitute only the tip of the iceberg since they have survived a first round of litigation in the trial courts and were appealed in the higher courts and only thereafter merited reporting in the law journal. In each of these cases, the women were assaulted and driven out. Most of these cases also contained allegations of dowry harassment. But none of these women had filed a criminal complaint under Section 498A (Cruelty to Wives) of the Indian Penal Code. All they did was file an application for maintenance and it is then that the husbands lashed out with allegations of sexual promiscuity. The layered and multiple contexts through which sexual morality surfaces, as per the norms of patriarchy, serve only one end: to challenge the legitimacy of women’s claims. Scanning through the judgments, one can see a positive trend emerging, where the courts have upheld the women’s

Conjugality, Property, Morality and Maintenance

41

claims and disallowed the husbands’ contentions. But despite this change, Clauses 4 and 5 of Section 125, Cr.PC provide the scope for husbands to engage destitute and deserted women in protracted and humiliating litigation. The false and frivolous interventions entangle women in circuitous legal rigmaroles which are time consuming, financially draining and emotionally charged.

Concubines, Mistresses and Maintenance Hindu marriages were rendered monogamous by the enactment of the Hindu Marriage Act in 1955. But husbands can flout this mandate of monogamy with impunity. To add insult to injury, during litigation, the fact of a bigamous marriage can be used as armour to defeat women’s claims. In other words, a husband may claim that since the litigant is a second wife his marriage to her is not legally binding and, hence, he is not obligated to pay her maintenance. This plea is advanced so routinely, that the Supreme Court in Vimala v. Veeraswamy14 was constrained to hold that when a husband pleads that the marriage is bigamous, the previous marriage would have to be strictly proved. In a similar manner, the Bombay High Court dismissed the plea of bigamous marriage in Rajlingu v. Sayamabai15 as a mere afterthought. This leaves us perplexed as to how a matrimonial misconduct or “guilt” can be flagrantly invoked by a husband to defeat the woman’s economic claim, without any adverse criminal or civil consequences visiting him during court proceedings. This type of flouting of a legal mandate and its subsequent invocation to gain financial edge against a vulnerable person can take place only within a blatantly sexist social order. Despite some progressive interpretations and innovative legal maxims, the path to justice has not progressed in a linear trajectory. There is a great a deal of judicial latitude which allows contradictory verdicts to emerge on the same issue, not just between various high courts but also within the same court. For example, in a ruling of the Bombay High Court on the rights of a woman in a bigamous marriage, in 1976, Justice M.H. Kania held that since the Hindu Marriage Act is a social legislation, it could not have been the intention of the legislature that even in a case where a Hindu

42

Flavia Agnes

woman was duped into contracting a bigamous marriage, she should be deprived of her right to claim maintenance.16 Similarly, in a leading case, Vimala v. Veeraswamy,17 the Supreme Court held: Section 125 Cr.PC is meant to achieve a social purpose. The objective is to prevent vagrancy and destitution. When an attempt is made by the husband to negate the claim of the neglected wife by depicting her as a kept mistress on the plea that he was already married, the court insists on strict proof of the earlier marriage. A provision in the law which disentitles the second wife from receiving maintenance from her husband, for the sole reason that the marriage ceremony, though performed in the customary form, lacks legal sanctity, can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage. This is so particularly when S.125 Cr.PC is a measure of social justice intended to protect women and children. In the absence of clear proof that the respondent is living with another woman as husband and wife, the court cannot be persuaded to hold that the marriage duly solemnised suffers from any legal infirmity.

In a landmark ruling in 2004, Rameshchandra Daga v. Rameshwari Daga,18 the Supreme Court upheld the maintenance rights of another woman in a similar situation. The ruling was delivered in an appeal filed by the husband against the judgment of the Bombay High Court. The husband, a widower, had married Rameshwari who had obtained a customary divorce (chor chittee) through a divorce deed. The wife alleged that this document was shown to the husband prior to the marriage and he had accepted its validity. Later, when disputes arose and the wife was driven out of the matrimonial home, she filed for judicial separation and claimed maintenance. During these proceedings, the husband denied the marriage on the ground that the woman had not been formally divorced. Rejecting the plea, both the Family Court at Mumbai as well as the High Court had upheld the wife’s and her daughter’s right of maintenance. In the final verdict, the Supreme Court upheld the woman’s plea that the husband, an advocate, was aware of the customary divorce at the time of his marriage. The court went further and chastised him for denying the paternity of his daughter. “The facts of this case tell the tragic tale of an Indian woman, who having gone through two marriages with a child born to her, apprehends destitution as both marriages have broken down”, the judges commented

Conjugality, Property, Morality and Maintenance

43

with a note of compassion. The Supreme Court appears to have accepted that Hindu marriages, like Muslim marriages, were bigamous prior to the 1955 enactment. There is also a tacit acceptance that the ground reality has not changed much since the enactment. So though such marriages are illegal as per the statutory provisions of the codified Hindu law, the Supreme Court has ruled that they are not “immoral” and hence a financially dependent woman cannot be denied maintenance on this ground. In stark contrast is the Supreme Court ruling in 2005, in Savitaben Somabhai Bhatiya v. State of Gujarat.19 Justice Arijit Pasayat and Justice S.H. Kapadia commented that however desirable it may be to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 Cr.PC, there is no scope for enlarging it by introducing any artificial definition to include woman not lawfully married in the expression “wife”. The court further commented that it is inconsequential that the man was treating the woman as his wife. It is the intention of the legislation which is relevant and not the attitude of the party. A judgment of the Allahabad High Court conveys the extent of humiliation a woman goes through during such litigation: If the man and woman choose to live together and indulge into (sic) sex, no marital status can be conferred automatically by their so living upon such a woman. She is not entitled to the legal status of a wife in the eyes of law and society. Law and society treat such women either as concubine or a mistress.... The two may agree to live together to satisfy their animal needs. But such a union is never called a marriage. A woman leading such a life cannot be bestowed with the sacrosanct honor of wife. No marital obligations accrue to such a woman against her husband. Such a wife must be termed as an adulteress.20

While comments about the high moral standard may appear salutary, it does seem that the price for immorality is to be paid only by the woman, while the man is left free to exploit both women.

Pluralistic Traditions and Harmonious Constructions The advantage of the mandate of “legal monogamy” lies with the husband as he can escape from the economic liability of maintaining his wife on the

44

Flavia Agnes

plea that the marriage suffered from a legal defect or lacked legal sanctity. Since ancient Hindu law and customary practices validated the institution of concubinage, even in present times, the plea that the woman concerned is a “concubine” or “mistress” and not the “wife” can be advanced with ease in legal arguments, as can be observed from the various rulings discussed above. The volume of case law on the subject exemplifies the fact that husbands have taken undue advantage and grossly misappropriated this mandate. An oft invoked legal ploy is to term the woman, the domestic maid or a mistress and not the “wife” with rights and entitlements. After the Supreme Court ruling in Rameshchandra Daga v. Rameshwari Daga it appeared that it would no longer be possible for a Hindu husband to escape from his liability of maintaining his wife on the plea that the wife is not formally divorced from her previous husband or on the plea that the woman is his concubine since his own previous marriage is still subsisting. But the subsequent ruling in Savitaben Somabhai Bhatiya v. State of Gujarat has again rendered the situation ambiguous. In this context, two recent judgments delivered by the Delhi High Court, reported in 2008, bear scrutiny. These judicial pronouncements have attempted to cross the stumbling block posed by the stipulation of monogamy under Section 5 of the HMA by invoking innovative legal maxims to protect the rights of women. In the first case, Suresh Khullar v. Vijay Kumar Khullar,21 while contracting the present marriage, the husband’s first marriage was dissolved by a court of law. The wife was innocent and oblivious of the fraudulent circumstances under which the husband had obtained an ex parte decree of divorce against his first wife. After a few months of her marriage, the subsequent wife, Suresh, was driven out of the matrimonial home. Thereafter, the husband’s ex parte decree of divorce from the first marriage was set aside on the ground of fraud and, through this legal incident Suresh Khullar’s marriage was rendered bigamous and invalid. She filed a suit for damages against the husband and his first wife on the ground of fraud and cheating, which was decreed by a civil judge. While upholding the right of the woman, the court with respect to Section 18 of the Hindu Adoption and Maintenance Act, 1956 (HAMA), held as follows: While interpreting a statute, the courts may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. The court invoked the legal maxim construction ut res magis valeat quam pereat,

Conjugality, Property, Morality and Maintenance

45

i.e., where alternative constructions are possible the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. The court commented that if this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, it was held that for the purpose of claiming maintenance under Section 18 of HAMA, the woman should be treated as the legally wedded wife. The second ruling was pronounced in Narinder Pal Kaur Chawla v. Manjeet Singh Chawla.22 The wife had approached the court for maintenance under Section 18 HAMA in 1997 and pleaded that her husband had duped her by suppressing his earlier marriage. The couple had lived together for 14 years and had two daughters. The husband pleaded that since his earlier marriage was valid and subsisting, his marriage with Narinder Pal Kaur was void. After a prolonged and contentious litigation, she was able to secure an order of interim maintenance of Rs.1500/- p.m. But when the case was finally decided in 2005, the trial court dismissed her petition on the ground that she could not be treated as a “Hindu wife” under Section 18 of HAMA as she did not have the status of a legally wedded wife. In appeal, the Delhi High Court upheld the right of the wife and held that even if the woman cannot be treated as a “Hindu wife” she is entitled to a lump settlement by way of damages. It appears that women who were deprived of their status and rights through the mandate of monogamy introduced by the Hindu Marriage Act of 1955 had to suffer for 50 years before some recognition could be awarded to them. The Protection of Women from Domestic Violence Act (PWDVA), 2005, does bestow some social status and legal rights on women who were once part of a prevailing social system and yet legally could be branded concubines or mistresses by transforming the concubines of yesteryear into present day cohabittees. Their right to protection from domestic violence and rights of maintenance and residence have been awarded statutory recognition. While some may dismiss the term cohabittee as a western or urban phenomenon, this term can now be invoked to protect the rights of thousands of women, both urban and rural, who were earlier scoffed at as “mistresses” or “keeps” in judicial discourse because of some technical defect in their marriage. The PWDVA does not clearly prescribe whether the new term “cohabittee” will safeguard the rights of

46

Flavia Agnes

women who were earlier denigrated as concubines and mistresses. That is left for judicial interpretation. But it does help to bring the debate to a new plane.

Economic Entitlements of Muslim Women The economic rights of Muslim women at divorce have taken a very different trajectory as compared to other matrimonial laws. This is because under Christian and Hindu traditions, marriage was viewed as an indissoluble sacrament, while Muslim law, from its origin, viewed marriages as contractual and dissoluble.23 The notion of a lifelong dependency which is linked to the notion of permanency of marriage has no place within Islamic jurisprudence. The right of maintenance is, therefore, confined to the period of subsistence of marriage. Even the codified statute, the Dissolution of Muslim Marriages Act of 1939, did not contain any provision for post-divorce maintenance. Within this context, the economic rights of Muslim women are confined to mehr, which is a Quranic right. This is a unique feature of Muslim law which is not found in any other matrimonial statute. The husband is bound to assure an amount as a mark of respect to the wife at the time of marriage which provides a future security for her. The mehr stipulation forms part of the marriage contract and is an essential ingredient of a Muslim marriage. While other laws presume that the husband will provide for the wife, under Muslim law the husband is bound to make a covenant or a contractual agreement to this effect. Mehr is viewed as a debt and an obligation of the husband towards his wife and it can be enforced in a court of law. Mehr can either be prompt (payable upon consummation of marriage) or differed, payable on demand during the marriage or, in any case, upon its dissolution. The high amount of mehr stipulated in the nikahnama was meant to act as a deterrent to unilateral and arbitrary divorce because the husband would then be obliged to settle his mehr dues to the wife. Under the Shariat law, the woman has a charge over her husband’s property for the payment of her mehr, even after his death. In post-independence India, mehr has been reduced to a token amount in most Muslim communities. The protection offered by this provision

Conjugality, Property, Morality and Maintenance

47

has been corroded and instead, many communities have accepted the Hindu custom of dowry, hence mehr has ceased to be a future security or a deterrent against arbitrary divorce. But the fact that mehr amounts were high can be ascertained from the cases reported in law journals during the pre-independence period among the affluent Muslim families. The legal precedents also indicate that the rights of mehr and pre-marriage agreements (which are recognised under the Muslim law but not under Hindu or other matrimonial laws) were not illusory but secured women viable economic safeguards to women. A large number of Muslim women seem to have approached the British Courts for enforcement of the contractual obligation of mehr.24 But during the post-independence period, when mehr amounts became illusory, the husbands’ use of the provision of arbitrary triple talaq led women to face great hardships as they were not entitled to post divorce maintenance. When a deserted Muslim wife approached the court for maintenance under Section 125 Cr.PC which is a secular provision uniformly applicable to all women, the husbands would pronounce talaq during the course of the litigation. Thereafter they would argue that their obligation towards the wife ended upon payment of the customary right of mehr and that they had no further obligation to maintain their wives. In order to deal with this problem, when the Criminal Procedure Code (Cr.PC) was amended in 1973, an explanation to the word “wife” was provided to include “ex-wife” under Section 125 Cr.PC. So even after the talaq, the courts could order maintenance to the wife under Section 125 Cr.PC, unless the wife had received substantial amount as mehr which would prevent her from destitution. Two historical rulings by the Supreme Court pronounced by Justice Krishna Iyer in 1979 and 1980 confirmed this view without creating a Muslim backlash. 25 It was held that an illusory amount under customary or personal law does not absolve a husband from the purview of this beneficial provision. In a subsequent judgment of the Supreme Court pronounced in 1981 by Justice Murtaza Fazal Ali, it was held that the court is not bound to cancel the order of maintenance on payment of mehr.26 But the Shahbano judgement pronounced by a Constitutional Bench headed by Chief Justice Chandrachud in 1985, while upholding the right of a divorced Muslim woman made certain adverse comments against Islam and also urged the state to enact a uniform civil code.27

48

Flavia Agnes

It must be remembered that the enactment of a compulsory civil code had been a contentious issue for the Muslim community even during the Constituent Assembly Debates in 1947–1949. It was seen as an attempt to enforce the Hindu law upon an insecure Muslim minority and hence was placed in the Directive Principles of State Policy to be enacted when the Muslim community would feel secure enough within secular India, to accept a uniform civil code.28 Against this background, the judgment led to a backlash and led to a demand from the Muslim orthodoxy for a separate statute to exclude divorced Muslim women from the purview of Section 125 Cr.PC which would be based on Islamic jurisprudence as per the rules of Islamic jurisprudence. Relenting under the political pressure exerted by the Muslim religious leadership, the ruling Congress headed by the then Prime Minister Rajiv Gandhi, enacted the Muslim Women (Protection of Rights on Divorce) Act (MWA), 1986. Through this enactment, the right of a divorced Muslim woman was taken out of the purview of the general law of maintenance under Section 125 of the Cr.PC and placed under this new legislation. This statute came to be viewed by secular and women’s rights groups as the most glaring instance of the defeat of the principle of gender justice for Indian women as well as the defeat of secular principles within the Indian polity. It seemed that the Act would deprive divorced Muslim women of the rights granted under a secular provision, Section 125 Cr.PC on the basis of religion alone and thus violate the Constitutional mandate of equality. The Act was a departure from the directive principle enshrined in Article 44 of the Indian Constitution—“the state shall endeavour to enact a Uniform Civil Code”. The right wing, Hindu fundamentalist political parties such as the Bharatiya Janata Party (BJP) and the Shiv Sena used this incident to fuel anti-Muslim communal hysteria culminating in the demolition of the Babri Masjid in 1992 and communal riots in the country.29 After the enactment, several women’s rights and human rights groups filed writ petitions in the Supreme Court challenging the constitutional validity of the Act. While the writ petitions were pending, several high courts began to interpret the Act innovatively and in women’s favour. They held that a divorced Muslim woman has the right to a “fair and reasonable settlement” for her lifetime, in addition to maintenance during the iddat period.30 Further, the courts commented that a fair and reasonable

Conjugality, Property, Morality and Maintenance

49

provision for the woman’s future needs (mataaoon bil ma’aroofe) is a Quranic injunction. The High Courts of Gujarat and Kerala were among the first to herald the new tidings. They affirmed that the new Act was to protect the rights of divorced Muslim women and not to deprive them of their rights. They further stressed that any ambiguity within its clauses must be interpreted in such a manner as to reconcile with the proclamation contained in the title of the Act, that is, an Act for the protection of divorced Muslim women. Banishing divorced women to a life of destitution would not amount to protecting their rights as stipulated by the statute, they declared. The first significant judgment on this issue was pronounced by the Gujarat High Court, on 18 February 1988, within a year and a half of the enactment. But even before this, the dice was cast in women’s favour, by a woman judicial magistrate in Lucknow on 6 January 1988. The woman concerned, Fathima Sardar, was awarded Rs. 85,000/- as fair and reasonable provision and maintenance during the iddat period. Justice M.B. Shah, while presiding over the Gujarat High Court explained: The determination of fair and reasonable provision and maintenance would depend upon the needs of the divorced woman, standard of life enjoyed by her during her marriage and the means of her former husband. The amount must include provision for her future residence, clothes, food and other articles for her livelihood.31

In the same year, the Kerala High Court reaffirmed this position in Ali v. Sufaira and Aliyar v. Pathu in the months of July and August respectively and reaffirmed this position again in Ahmed v. Aysha in 1990. 32 The authoritative judgment of the Supreme Court on this issue was pronounced in 2001 in Daniel Latifi v. Union of India.33 The Supreme Court confirmed that the MWA has substituted the earlier right of recurrent maintenance under Section 125 Cr.PC with a new right of a lump sum provision to be made and paid to the woman soon after her divorce. If the husband fails to make the settlement, a divorced Muslim woman has the right to approach the magistrate’s court for enforcement of the right under Section 3 of the MWA. The court held that a Muslim husband is liable to make a reasonable and fair provision for the future of his divorced wife, which must be made within the iddat period. The court further clarified that the liability

50

Flavia Agnes

of the Muslim husband to the divorced wife to pay maintenance under the Act is not confined to the iddat period. A Muslim wife is entitled to a fair and reasonable provision with respect to her future needs. In cases where the husband is unable to pay the entire amount, the Full Bench of the Bombay High Court, in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh,34 held that the amount can be paid in installments and until the payment is made, the magistrate can direct monthly payment to the wife even beyond the iddat period. In Nizar v. Hyrunneessa,35 the Kerala High Court rejected the plea that since the wife had remarried, she is not entitled to a fair and reasonable settlement for the future. The court held that the remarriage of a divorced woman is not a criterion in determining a “fair and reasonable” settlement. The only aspect to be considered is the liability of the former husband to make a reasonable and fair provision to the divorced wife and fix the quantum sum as contemplated under Section 3(3) of the Act. The court awarded Rs. 90,000/-, calculating the amount on the basis of Rs. 1,500/p.m. The amount awarded as fair and reasonable settlement cannot be set aside on a plea that the divorced wife is leading an adulterous life.36 The lump sum provisions for future security, which the courts so carefully crafted out of the controversial legislation, seem to provide a better safeguard against destitution than the meager handouts to which they were entitled under the earlier anti-vagrancy provision under Section 125 Cr.PC. In a significant number of cases a concerned and sensitive judiciary carved out a space for the protection of women’s rights from what appeared to be an erroneously conceived, badly formulated and blatantly discriminatory statute, without invoking a political backlash. Endorsing the spirit of Islam and the Shariat and drawing upon the Islamic concept of mataaoon bil ma’aroofe (fair and reasonable provision), the courts opened a new portal for the protection of divorced Muslim women by reading into the statute notions of justice and equity. Doing precisely what the Act in its title proclaimed, i.e., protection of rights of divorced Muslim women, the judiciary turned what had initially appeared to be a misnomer and a mockery into a factual reality and ushered in a silent revolution in the realm of Muslim woman’s rights. A reading of the judgments indicates that the Act had rid itself of the agenda of alleviating vagrancy and destitution among divorced women (the defining feature of Section 125 Cr.PC) and had extended itself to

Conjugality, Property, Morality and Maintenance

51

the claims of women from higher social strata. The statute, enacted in haste, at the insistence of the conservative leadership, seemed to have boomeranged. Since the Muslim law permits bigamy, a husband cannot escape the liability of paying maintenance to the wife on the ground that the marriage is bigamous or the woman is a keep or a mistress. While analyzing the provision of a “fair and reasonable settlement at the time of divorce” in the context of the present discussion of rights to matrimonial property, it appears that the provision is based on both, past “contribution” and future “need” but does not stretch itself to the premise of equal division of property upon divorce. It also endorses the “clean break” theory where rights are determined upon divorce without future obligations of continued maintenance. The economic rights of Christian and Parsi women are similar to the provisions of women under the Hindu law and hence do not warrant a separate discussion though there are some interesting cases that are reported. Here it is relevant to mention that one of the first rulings on the issue of women’s right to the matrimonial home delivered by the Bombay High Court was in a case under Parsi matrimonial law, the Parsi Marriage and Divorce Act, 1936, Banoo Jal Daruwalla v. Jal C. Daruwalla.37 The judge in this case relied upon the observations of Lord Denning in Bendall v. Mc Whirter (as cited in Banoo Daruwalla) that it is the duty of the court to ensure that the wife is not thrown out of the matrimonial home. Since it was not possible for the wife to reside in the matrimonial home along with the husband, the wife was awarded Rs. 275 per month as maintenance.

Jurisprudential Questions and Tools of Interpretation The Supreme Court rulings in cases such as Daniel Latifi provide us with a good example of how best to positively interpret a statute without evoking a backlash or a political controversy. These rulings endorse the spirit of Islam while upholding the human rights of women without posing the issue as “women versus minorities” and hence serve Muslim women better than more confrontational rulings such as the Shahbano judgment. The controversy which followed this judgement ultimately led Shahbano

52

Flavia Agnes

herself to renounce her claim on the grounds that if claiming maintenance from her ex-husband was against the tenets of her religion, she would rather be a good Muslim than claim her rights as a woman. Subsequent political events such as the Gujarat riots have taught a very painful lesson to Muslim women that they are violated, raped, maimed and killed not only as women but also as Muslims. It is the composite identity as “Muslim” and “women” that they need to cope with. Their struggle must evolve a composite strategy against patriarchy, community, communal forces and the state. While interpreting statutory provisions which are enacted for their benefit, the courts must keep this composite identity of Muslim women in view. The Shahbano judgment faltered in this respect while upholding the rights of an individual woman. A different kind of challenge confronts the judiciary while determining the rights of women from other communities. Confronted with contradictory viewpoints regarding the criterion for determining the “legislative intent” of a beneficial provision, what are the crutches that trial court judges have at their disposal while delivering “constitutional justice?” Justice A.K. Sikri and Justice Aruna Suresh attempt to provide an answer: Where alternative constructions are possible the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than the one which would put hindrances in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.38

In this tussle between the old world, feudal value systems reflected in the ancient Hindu law—the law of the Smritis—alongside pluralistic traditions validated by customs at one end and the newer statutory provisions of the modern (often colonially) codified Hindu law at the other, what are the avenues for harmonious constructions of legal principles? How do we revisit the provisions of the early Hindu law in the context of its modern day manifestations within the statutory framework of contemporary Hindu law, while delivering justice? The same bench, comprising

Conjugality, Property, Morality and Maintenance

53

of Justice A.K. Sikri and Justice Aruna Suresh, has provided certain tools of interpretations in this respect: The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. There is clear evidence to indicate that the law of maintenance stems out of the secular desire and so as to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Organically and originally the law itself is irreligious. Its fountain spring is humanistic. In its operational field although it lays down the permissible categories under its benefaction, which are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measured for maintenance.39

Beyond protection of individual rights, the courts also have a mandate to evolve the science of jurisprudence as Chief Justice S.B. Sinha, Justice Ramesh Madhav Bapat and N.V. Ramana of the Andhra Pradesh High Court suggest that [t]he interpretation of law is not merely for the determination of a particular case but also in the interest of law as a science. As such, interpretation of law must be in accordance with justice, equity and good conscience and more so, in furtherance of justice.40

This call to move with the times and blend the ancient with the modern in pursuit of justice is the call of duty. The judicial oath mandates this. The primary aim of the courts is to “do justice” as Justice P.N. Bhagwati and Justice Ranganath Misra succinctly pointed out: The role of the court is not that of silent spectator or of a passive agency. When a dispute is brought before the court where maintenance of a neglected wife or a minor child is in issue, the court must take genuine interest to find out the truth of the matter.41

In this context, the recent ruling of the Supreme Court in D. Velusamy v. Patchaiammal,42 which denied maintenance to women who are in a marriage like relationship with married men and termed such women as “mistresses” and “keeps” is a cause of concern. But the issue is still wide open as another ruling by another bench of Supreme court in Chanmuniya v. Virendra Kumar Singh Kushwaha, 2011 (1) SCC 141, has upheld the

54

Flavia Agnes

right of women in technically defective marriages by holding that the term “wife” must be given a broad and expansive interpretation and has referred the issue to a larger bench.

Conclusion I began this essay by discussing the importance of understanding the theoretical underpinnings of concepts of “need” and “contribution” that are used in assessing maintenance settlements. While “need” presumes dependency, “contribution” presumes equality. While lamenting the fact that we do not subscribe to the theory of “division of property” at the time of divorce and while discussing the economic entitlement of maintenance which is “need” based, it is not my argument here that an equality model of marriage as a partnership would protect women better. The needs of women and their dependency will continue even when we accept the theory of property distribution based on the model of equality. I am arguing not for equality under Article 14 of the Constitution but for additional protections and economic security in terms of matrimonial assets under Article 15 (3) of the Constitution. In the context of equal distribution of property in the US, feminist scholar Martha Fineman, argues: The material circumstances of divorcing women and children are being detrimentally ignored by supplanting a focus on “contribution” as the primary distributive concept. The ascendancy of “contribution” may represent a nice neat instance of conceptual progress to legal academics and law reformers, but for many divorcing spouses, as well as the practising professionals to whom they turn for advice, adverse material circumstances and the needs they generate, have not been left behind.43

She suggests that one source of controversy about property distribution rules is the existence of two competing and perhaps incompatible and unrealistic, political visions of contemporary marriage. The first is the more modern view that marriage as an institution has been transformed so as to be more consistent with formalistic notions of equality between the sexes. The second is the more traditional policy stance that “family” continues to

Conjugality, Property, Morality and Maintenance

55

be the solitary institution which addresses problems of dependency that inevitably arise in the context of families, such as caring for the young, the sick and the aged and meeting these demands as the care taker creates further “needs” for the primary care taker, which in most cases is the woman. Highly skeptical of the “contribution” model which is based on the assumption that marriage is a partnership between equals, she argues for a “need-based” framework.44 At a conceptual level, quality standards in the distribution of property may be linked to broader ideals of placing equal value and promoting freedom of choice in marriage. Making equality the ongoing concept of underlying divorce may be considered part of a series of conscious symbolic choices about how best to ensure a more just society. But when equality rhetoric is translated into specific rules governing distribution of property, the results must be measured and assessed in more than symbolic terms. Symbolic expression may be important, but Fineman argues that care should be taken so that as translated into legislation having direct impact on the lives of many people, the results also meet the standards of fairness and justice.45 I end with a similar approach of cautiousness and scepticism and urge that this must reflect in our campaigns for law reforms.

List of Case Citations Ahmed v. Aysha II (1990) DMC 110 Air India v. Nergesh Meerza AIR 1981 SC 1829 Ali v. Sufaira 1988 (2) KLT 172 Aliyar v. Pathu 1988(2) KLT 94 Arab A. Abdulla v. Arab M. Saiyadbhai AIR 1988 Guj 141 B.P. Achala Anand v. S. Appi Reddy I (2005) DMC 345 SC Bai Tahira v. Ali Hussain Fiddali Chothia AIR 1979 SC 362 Banoo Jal Daruwalla v. Jal C. Daruwalla (1962) LXV BLR 750 Captain Ramesh Chandra Kaushal v. Veena Kaushal AIR 1978 SC 1807 Daniel Latifi v. Union of India 2001 (7) SCC 740 : 2001 Cri.LJ 4660 SC Fuzlunbi v. K. Khadir Vali AIR 1980 SC 1730 Govindrao v. Anandibai AIR 1976 Bom 433 Haseena v. Abdul Jaleel II (2007) DMC 215 Ker Hine v. Hine [1962] 3 All ER 345 K.Zunaideen v. Ameena Begum II (1997) DMC 91 Kamalakar Ganesh Sambhus v. Master Tejas Kamalakar Sambhus AIR 2004 Bom 478 Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh 2000 Cri.LJ 3560.

56

Flavia Agnes

M. Alavi v. T. V. Safia I (1992) DMC 62 Malti v. State of Uttar Pradesh I (2001) DMC 104 Mohd. Ahmed Khan v. Shah Bano Begam AIR 1985 SC 945 Mustafa v. Fathimakutty I (2007) DMC 820 Ker Narinder Pal Kaur Chawla v. Manjeet Singh Chawla I (2008) DMC 529 Del National Provincial Bank Ltd. v. Ainsworth [1965] 2 All ER 472 Nizar v. Hyrunneessa I (2000) DMC 229 Ker P. Srinivasa Rao v. P. Indira I (2002) DMC 749 Rajlingu v. Sayamabai I (2007) DMC 396 Bom Rayinkutty v. State of Kerala II (2008) DMC 575 Ker Romesh Chander v. Savitri I (1995) DMC 231 SC Ruma Chakraborty v. Sudha Rani Banerji AIR 2005 SC 3557 Suman Kapur v. Sudhir Kapur II (2008) DMC 774 SC Sumitra Devi v. Bhikan Choudhary AIR 1985 SC 765 Suresh Khullar v. Vijay Kumar Khullar I (2008) DMC 719 Del V. Bhagat v. D. Bhagat AIR 1994 SC 710 Vimala v. Veeraswamy (1991) 2 SCC 375 Zohra Khatoun v. Mohd Ibrahim AIR 1981 SC 1243

List of Abbreviations in Case Citations AIR All ER BLR Bom Cri.LJ Del DMC Guj Ker KLT SC SCC

All India Reporter All England Reporter Bombay Law Reporter Bombay Criminal Law Journal Delhi Divorce & Matrimonial Cases Gujarat Kerala Kerala Law Times Supreme Court Supreme Court Cases

Notes 1. See the ruling in Suman Kapur v Sudhir Kapur II (2008) DMC 774 SC where the Supreme Court held pursuing a career and neglecting the family amounts to cruelty on the part of the wife. 2. Even public sector undertakings followed this policy which was challenged in the landmark case Air India v Nergesh Meerza AIR 1981 SC 1829 which is popularly known as the air hostess case.

Conjugality, Property, Morality and Maintenance

57

3. AIR 2004 Bom 478 4. But after the Supreme Court ruling in 2004 in B. P. Achala Anand v S. Appi Reddy I (2005) DMC 345 SC (discussed later), the situation seems to have substantially changed and it is now possible to claim division of joint property acquired subsequent to the marriage during matrimonial proceedings. 5. 3 All ER 345 at 347 F 6. [1965] 2 All ER 472, HL 7. I (2005) DMC 345 SC 8. AIR 2005 SC 3557 9. This term was used in the context of “matrimonial guilt” or “fault” which would entitle the other spouse to obtain a divorce. If the spouse is “innocent” it was presumed that divorce would not be granted to the other spouse. Divorce was viewed more as a punishment for the matrimonial guilt. 10. See the Supreme Court rulings in V. Bhagat v D. Bhagat AIR 1994 SC 710 and Romesh Chander v Savitri I (1995) DMC 231 SC 11. See Agnes, Flavia “Limited vindication of the rights of women” Indian Express Tue Mar 27 2012 http://www.indianexpress.com/news/limited-vindication-of-the-rights-ofwomen/928691/0 12. AIR 1978 SC 1807 13. The term “summary proceedings” indicate that the court is not required to conduct a full length trial with lengthy cross examinations and the case can be decided after arguments and examining documents. Under S.125 Cr.PC it is not required to prove the marriage. 14. (1991) 2 SCC 375 15. I (2007) DMC 396 Bom 16. Govindrao v Anandibai AIR 1976 Bom 433 17. (1991) 2 SCC 375 18. I (2005) DMC 1 SC 19. AIR 2005 SC 1809 : I (2005) DMC 503 SC 20. Malti v. State of Uttar Pradesh I (2001) DMC 104 All 21. I (2008) DMC 719 Del 22. I (2008) DMC 529 Del 23. Subsequently, this concept was incorporated into the French civil law in 1800 which rendered Christian marriages dissoluble. Later in 1857, the English family law accepted this principle. It was adopted by the Hindu law in 1955 when the Hindu Marriage Act was enacted. 24. For a detailed discussion on this issue, see Agnes 1996 : 2832 25. Bai Tahira v Ali Hussain Fiddali Chothia AIR 1979 SC 362 and Fuzlunbi v. K. Khadir Vali AIR 1980 SC 1730 26. Zohra Khatoun v Mohd Ibrahim AIR 1981 SC 1243 27. Mohd. Ahmed Khan v Shah Bano Begam AIR 1985 SC 945 28. But this did not happen. On the contrary, the situation has only gone from bad to worse for minority communities—both Muslims and Christians. 29. Later there were also similar communal riots in many parts of the country and the worst riot was in Gujarat during February–March 2002 which resulted in the killing of 3,000 Muslims. Several women were raped, disfigured and burnt. Through a curious twist, the Shahbano judgement and the enactment of the Muslim Women’s Act seemed to justify these anti-Muslim sentiments. Within a communally vitiated political atmosphere, an injustice to

58

30.

31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43.

44. 45.

Flavia Agnes a Muslim woman came to be converted into a Hindu injury, justifying the riots and the killing and maiming of Muslim women. Arab A. Abdulla v Arab M. Saiyadbhai AIR 1988 Guj 141; Ahmed v Aysha II(1990) DMC 110 : 1987 Cri.LJ 980 K.Zunaideen v Ameena Begum II (1997) DMC 91; Karim Abdul Rehman Shaikh v Shehnaz Karim Shaikh 2000 Cri.LJ 3560. Arab Ahemadhia Abdulla v Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj 141 1988 (2) KLT 172, 1988(2) KLT 94 and II (1990) DMC 110 2001(7) SCC 740: 2001 Cri.LJ 4660 SC FB 2000 Cri.LJ 3560 I (2000) DMC 229 Ker M. Alavi v. T. V. Safia I (1992) DMC 62 (1962) LXV BLR 750 Suresh Khullar v Vijay Kumar Khullar I (2008) DMC 719 Del Narinder Pal Kaur Chawla v. Manjeet Singh Chawla I (2008) DMC 529 Del P. Srinivasa Rao v. P. Indira I (2002) DMC 749 Sumitra Devi v. Bhikan Choudhary AIR 1985 SC 765 2010 (10) SCC 469 Fineman, M.A. “Societal Factors Affecting the creation of Legal Rules for Distribution of Property at Divorce” in Fineman, M.A. and N.S. Thomadsen (eds) At the Boundaries of Law—Feminism and Legal Theory, New York : Routledge, (1991) pp. 265–279 at p. 270. Ibid., p. 265. Ibid., p. 276.

3

Women, Forestspaces and the Law: Transgressing the Boundaries* Sagari R. Ramdas

The struggle of women from the Adivasi and other traditional forestdwelling communities has been about democratic rights to enable them to live in dignity and freedom to pursue a way of life and livelihood that is centred on a complex relationship fostered over generations with the entire forest landscape. The ancestral plural relationship that women hold with the forestspace, is depicted by how this space is used in multiple ways: shifting cultivation, grazing, food production, foraging for wild fruits, vegetables, tubers and medicines, saving seeds and breeds, collecting fuel wood, forest produce and materials to build homes, worshipping their ancestors and gods and a space to celebrate and mourn. It is these “productive” and other “non-economic” interactions and relationship with the forest, that have been constantly contested, challenged and have come into direct conflict with the interests of the state since before independence and have intensified in independent India. The Adivasi women’s active role in movements to resist the state’s attempts to restrict and regulate freedom and contain temporal and spatial

* This essay was originally published in Economic and Political Weekly, Review of Women’s Studies, XLIV(44): 65–73, 31 October–6 November 2009. Acknowledgements: I am deeply indebted to members of the Adivasi Aikya Vedika for their contribution in developing this essay. I am grateful to Madhusudhan for his invaluable insights and analyses on issues related to Adivasis and resources. I would also like to thank Jasber Singh for his critical comments and suggestions.

60

Sagari R. Ramdas

mobility within their territories and homelands, is a concrete expression of opposition to subjugation and control. Furthermore, these resistance movements are an integral part of the larger struggle against patriarchal institutions and unjust forms of governance and for gender justice. In this era of neo-liberal reforms and globalisation, women’s resistance has taken an additional dimension in struggling against the appropriation of their territories and the forest by global and national capital markets. The deeper concern is that capital and governance is rapidly transforming their autonomous spaces and relationship with the forest, into “commodities” with a market value that can be traded, allegedly to “raise their incomes, eradicate poverty and empower women”, whilst increasing the revenues of the government. From shifting cultivators, to pastoralists whose livelihoods banked on their access to forests to graze their animals, to internally displaced Adivasi women forced to leave their homes and live as refugees in new forest regions, women have been victims of the brutal violence of the forest bureaucracy. They, thus, joined the thousands who protested on the streets to demand an end to their having to live in forests as “criminals” and “law-breakers”. For women, it is not merely a struggle for legal rights to resources, but for confirmation of rights to livelihood strategies that engage with the land and resources, in a manner that has for long been viewed by the state as being ecologically destructive and inefficient. In the last decade coinciding with the neo-liberal period of reforms, it has been the female shifting cultivators and graziers who have borne the brunt of this violence by the state to restrict and deny them access to the forests. Violence against women has taken several forms such as taking control of their resources and displacing them from their means of production—the land, forests, water, genetic resources, negation of their knowledge or its commodification, their spaces and power in decision-making.

Recognising the Adivasi Struggle? The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, (FRA)1 was eagerly welcomed as a victory and a significant step forward in the larger struggle of Adivasi communities,

Women, Forestspaces and the Law

61

seeking sovereignty over resources. For Adivasi women in particular, it was supposed to give new meaning to gender and environmental justice: the right to a way of life and livelihood and acknowledgement of their knowledge and capacities to nurture the forestscape and ecosystem. The legislation, however, may become a tool for the state to execute its hegemony over these forest resources and regulate freedoms to its citizens, by retaining the powers of final decision regarding governance of the forest resource. The state’s attempts to negate the powers of the gram sabha, suppress the securing of community rights to forest resources and the financial allocations through different schemes like the National Rural Employment Guarantee Scheme (NREGS) to promote plantations and afforestation programmes on the lands secured through the FRA, demonstrate another form of subjugation and alienation, which undermines the democratic rights and dignity of Adivasi women. As argued by Krishna (2007: 33) the question is not just of including women in policy and programmes but of unravelling the gendered structure of patriarchal institutions that are notoriously resistant to change. If the content of citizenship were to be extended to include the right to recognition of ways of living and livelihood, women could take their legitimate place as productive human beings who are entitled to dignity as a political right and not as a part of protection and welfare.

FRA in Action When the FRA was passed in December 2006 there were cautious celebrations as it appeared to recognise the legitimacy of the Adivasi women’s autonomous relationship with the forests.2, 3 The act recognises individual rights to land being cultivated in forest areas prior to 13 December 2005.4 It also recognises community rights and other traditional customary rights5 of the community to the forest such as nistar rights, rights to ownership, collection, use and disposal of minor forest produce, rights to traditional water bodies and their produce, grazing rights (both settled or transhuman) and traditional seasonal resource access of nomadic or pastoralist communities, rights to biodiversity, cultural diversity, rights of habitation and any other customary rights not mentioned. More importantly,

62

Sagari R. Ramdas

it accords legal rights and confers powers to the communities to protect and manage their community forest resources in accordance with their traditional modes of conservation and also protect the forests, wildlife and biodiversity.6 The actual process of claiming rights took another year, when the rules were finally notified on 1 January 2008,7 again largely in response to pressure by peoples’ movements across the country.8 People’s organisations had barely begun to celebrate this partial success of their struggle, when nine different public interest litigations were filed by retired forest officials and conservationists challenging the act in the Supreme Court and in the high courts of six different states. The petitions argued that the act paved the way for complete destruction of the forests by local communities.9 Along with legal hurdles, the enactment of the law appeared to provoke increased attacks by forest department officials against Adivasi and Dalit communities. These attacks, in particular, targeted women who had been living in forest areas, with reports of renewed and aggressive attempts to evict communities from their homelands, across the country.10, 11 Not surprisingly12 states like Andhra Pradesh were quick to announce an operational plan and timeline for executing the FRA, 2006. Tribal welfare officials unfolded a completely unrealistic road map for operationalising the FRA, thereby diluting and collapsing a 200-year-old conflict over land use and resources, into a bureaucratic-technical exercise. The Andhra Pradesh Government estimated that 2,500 gram panchayats and 7,500 habitations across the state could make use of the legislation to regularise roughly 2.93 lakh hectares of land. They allocated Rs 20 crores exclusively for implementation of the FRA and deputed additional human resources from the World Bank-funded Indira Kranthi Pathakam Poverty Alleviation Programme13 to assist the officials in their task. By March 2008, the district officials in districts with forest-interface were running from village-to-village, to organise gram sabhas and elect Forest Rights Committees (FRCs).14 According to the FRA rule number 3 (1): The Gram Sabhas shall be convened by the Gram Panchayat and in its first meeting it shall elect from amongst its members, a committee of not less than ten but not exceeding fifteen persons as members of the Forest Rights Committee, wherein at least one-third members shall be the Scheduled Tribes. Provided that not less than one-third of such members shall be

Women, Forestspaces and the Law

63

women, provided further that where there are no Scheduled Tribes, at least one-third of such members shall be women.

In its execution, the officials faithfully followed this rule, which was inherently flawed, as the total participation of men and women from all the habitation/hamlets that constitute a gram panchayat which could vary from 6–30 habitations, did not even meet the quorum, for a legitimate gram sabha. These gram sabhas were organised at the panchayat headquarters, which necessitated that women walk for miles to participate in the deliberations. This physical distance effectively ensured poor participation of women in the actual proceedings. This exercise undermined the local democratic processes of governance. The government machinery declared that within the space of one month, gram sabhas had been successfully organised and FRC democratically elected on a free and fair basis in all villages. It is difficult to imagine how these bodies which had not been allowed to function during the past decade, to whom no powers had yet been divested and who had been sidelined by the state-initiated parallel institutions of governance such as joint forest management committees or van samraksha samitis (VSS),15 self-help groups (SHGs), water users associations, watershed committees, educational committees and village tribal development authorities, had miraculously in the space of a month transformed into vibrant democratically functioning bodies, which ensured the free and fair participation of women!

Negating the Community: Marginalising Women In the campaign on FRA, the government machinery very deliberately chose to publicise individual rights to land, but was completely silent about the more powerful and crucial component of collective/community rights to the forests. The government was also silent on the powers given in the act to the gram sabha for governing, managing and protecting the forests. Instead of being an empowering tool that strengthened the collective democratic rights of forest-dependent communities the act was reduced to becoming yet another “government programme” of land distribution. In Andhra Pradesh, as of 30 June 2009, according to the official statistics,16 329,233 claims were received by the gram sabhas of which 323,272

64

Sagari R. Ramdas

or 98 per cent were individual claims and 5,961 were community claims. Of these, 214,430 claims or 65 per cent were approved and sent onto the subdivisional level committee (SDLC), of which 140,359 (or 65 per cent) were recommended by the SDLC to the district-level committee (DLC). The DLC approved 133,619 claims or a mere 41 per cent of the total claims submitted to the gram sabha, of which 67,855 titles were distributed. The status of community claims is conspicuously absent from the official data on the official website. Taken at face value, the sheer volume of claims approved, appears to have provided substantive benefits to the Adivasi communities, particularly women, as almost all individual titles have been made in the name of the woman. The large numbers, however, are deceptive and analysis of disaggregated data from individual districts, tells another story. Data from Parvathipuram division, Vizianagaram District (Table 3.1) shows that while gram sabhas rejected 26 per cent of the entire individual claims filed, quite inexplicably they rejected 90 per cent (702 of 775) of all community claims and sent the remaining to the SDLC. The SDLC rejected nearly 50 per cent of all individual claims and accepted only five Table 3.1: Status Report of FRA Claims Submitted, Surveyed and Approved, Parvathipuram Division, Vizianagaram District, Andhra Pradesh Claims Recommended by SDLC to DLC for Approval

Claims Approved by DLC for Grant of Titles for Forest Rights

11,825 (73.6%) 35,498.40 (80.2 %)

6,456 (40%) 15,831.97 (35.8%)

5,616 (35% of original claims) 13,416.02 (30.3% of original land claimed)

Parvathipuram Division

Claims Submitted

Individual claims (no) Individual claims (acres)

16,061

16,061

44,210.41

44,210.41

775

775

73 (9.4%)

5 (6.8%)

2 (0.2% of original claims)

3,755.78

3,755.78

189.38 (5%)

787.71

783.0

Community claims Community claims (acres)

Claims Surveyed

Claim Accepted by Gram Sabha to SDLC

Source: Abstract of Status Report on Implementation of FRA Act, as of 31 March 2009. Format I–V, ITDA, Vizianagaram District, Andhra Pradesh obtained through RTI filed by Manyam Girijana Seva Sangham, Vizianagaram.

Women, Forestspaces and the Law

65

of the 73 (6.8 per cent) community claims submitted and passed them onto the DLC for final approval. The DLC finally approved a mere 35 per cent of the original individual claims. This translated into 30 per cent of the total land originally claimed being finally approved to be given to claimants as individual titles. As far as community rights go, a minuscule 0.2 per cent of original community claims were finally approved. The rejection by the gram sabhas of over 90 per cent of the claims from constituent hamlets/ villages to exercise their collective rights to the forests, appears to be completely illogical. It raises serious questions as to whether it was the gram sabhas at the panchayat level who passed these resolutions or whether these were arbitrary decisions taken by various other actors17 who were involved in processing the claim forms. The story is no different in Srikakulam and Adilabad Districts (Table 3.2). The state’s agenda of suppressing the process of communities claiming their collective/community rights to the forests, as also the manner in which it exercises the power to impede the process of Adivasi women Table 3.2: Status of FRA Individual and Community Claims in Vizianagaram, Srikakulam and Adilabad Districts as of 31 March 2009 District No. of mandals Gram panchayats with interface with forest gram sabha convened FRC’s formed Extent of forest land having interface with panchayats (acres) as per forest department Individual claims (No) submitted Approved by DLC (acres) Extent of acres (submitted claims) Individual claims approved by DLC (acres) Community claims submitted (nos) Community claims approved by DLC Community claims submitted (acres) Community claims approved by DLC (acres)

Vizianagaram

Srikakulam

Adilabad

23 233

17 Not available

50 499

61,336.24

Not available

209,357.88

16,380 5,616 44,640.69 13,416.02 775 2 3,755.78 783

15,565 12,565 25,322.63 25,322.63 343 131 739.1 260.78

55,663 28,409 221,624.84 102,142.85 1,090 60+ Not available 3,533.40

Source: ITDA, Srikakulam, ITDA Adilabad, ITDA Vizianagaram, 31 March 2009. Note: +Balance are under process of being surveyed according to official data. + Balance are being processed. Information obtained through RTI filed by Manyam Girijan Seva Sangham, Vizianagaram, Chinnayya Adivasi Vikas Sangham, Srikakulam and Adivasi Chaitanya Sangham, Adilabad.

66

Sagari R. Ramdas

to obtain rights, becomes progressively clear as we shift the analysis from district to village and hamlet levels. Take the instance of Panchayat of Akkarapally, Hiramandalam Mandal, Srikakulam District (Table 3.3), which is made up of five constituent villages. Barring Akkarapally village inhabited by the backward castes (BC) the other four villages are inhabited by Gadaba and Savara Adivasis, who are listed as primitive tribal groups. The FRC consisted of four women and 11 men, all belonging to the Adivasi community but all residents of the same constituent village. Totally 179 Adivasi villagers submitted individual claims from four villages, for a total land area of 978 acres, that they had been cultivating for hundreds of years and which averages 5.4 acres per claimant. Each village also submitted form “B” which is the application for community claims, detailing their traditional customary boundaries, their diverse and seasonal uses (medicinal plants, grazing, forest produce, food, fruits, fish, water bodies, hillocks, shifting cultivation patterns, places of worship, burial grounds, forest gods, etc.). A part of the land which was claimed by the villagers had been appropriated by the forest department through the VSS, under the implementation of Joint Forest Management Programmes,18 which started in this panchayat in 1998–1999. The Adivasis had been forcibly displaced from their lands and were now reclaiming their rights to their ancestral territories. In June this year, the government awarded individual titles prepared in the names of the women, to all 179 claimants, which totalled 106.25 acres. The final amount approved was approximately ½ acre per claimant, Table 3.3: FRA Individual Claims Approved, Panchayat Akkarapally, Hiramandalam Mandal (Srikakulam)

S.No. Village/Hamlet 1 2 3 4 5

Satyajaganathapuram Anthakapally Ippagudda Seedi Total

Average area Average Area approved/ Claimed/ No. of Total Area Area Individual Individual Individual Claimed Approved Claimant Claimant Claims (Acres) (Acres) (Acre) (Acre) 66 27 13 73 179

234 92 72 580 978

30.09 16.04 12.74 47.38 106.25

0.45 0.59 0.98 0.64 0.59

3.5 3.4 5.5 7.9 5.4

Source: RTI information obtained from ITDA by Chainnayya Adivasi Sangham, March 2009.

Women, Forestspaces and the Law

67

a fraction (10 per cent) of their original claims which were well within the maximum amount of four hectares per claimant, as specified in the FRA.19 None of the four villages were informed about the status of their community claims. In village after village the story is the same. Adivasis who have been cultivating between 3 and 5 acres of land in the forests since hundreds of years, filed their claims and were awarded approved land titles made out in the name of women, which measured a couple of cents20 or an area which was 1/10th of the original land. Most villages have not yet received an answer to their community claims but going by the records, it appears as if they were uniformly “rejected”. Where the community rights have been awarded, they are accompanied by selective rights like “one fishing pond” or “one road”21 measuring 1–2 acres! This negates the very essence of these community rights embodying the Adivasi relationship with ancestral territories and customary use. The ministry of tribal welfare has clearly chosen to ally with the forest department which is reluctant to lose its “property—the forests”, particularly jointly protected and managed forests.

Patriarchy of Governance The state’s essentially unchanged patriarchal ideology and political character stands starkly exposed with these actions. The state assumes that it is doing a great favour and can undo historical wrongs and further gender justice, by throwing crumbs in the direction of marginalised Adivasi women. It takes these liberties because of a deeply ingrained patriarchal worldview and image of Adivasi women as unquestioning and obedient, ignorant and pliable. The allotment of a couple of cents of land to women is utterly humiliating and mocks their dignity. However, democracy is not about granting favours. These women were struggling for something very different. In four panchayats of Srikakulam District, women refused to accept these titles and demanded resurveys of both individual and community claims which was finally accepted by the officials.22 The surveys are currently underway. The state government made no efforts to make these communities aware of the importance of filing community rights. To a large extent,

68

Sagari R. Ramdas

people had no opportunity to internalise and understand the critical political relevance of staking their claims to these rights as collectives of households at the village/hamlet level. The emerging data from different districts indicates an appallingly low number of community claims being filed in relation to the total number of habitations/hamlets attached to every panchayat (See Table 3.2). Of these a very small number was actually approved. The state appears to have taken a conscious decision to subvert/suppress the process of ensuring that local communities exercise their right to the community forest resources. This has massive ramifications as we have argued earlier on women for whom the private and public spaces in forest regions form a continuum through which they exercise their right to livelihoods and life. Adivasi women view agriculture and non-agriculture lands including forests and common property resources as a mutually supportive continuum within the local landscape. They complement and supplement each other in shaping local livelihoods (Rao 2008: 290). This worldview, however, is in direct conflict with the state, whose plans for the forests works against the interests of women. Sarin (1996:19– 20) has written extensively on how for instance the closures of forests for purposes of protection have severely affected women and resulted in significant increase in their work burden. Denial and rejection of community claims is a direct attack on women’s livelihood aspirations, their knowledge and rights, which are closely embedded in the collective right to use common resources to meet their needs.

Plantations and Shrinking Spaces What explains the state’s absolute reluctance in implementing community rights? The answers can perhaps be found in an analysis of recent forestry development plans and programmes announced by the state, which can be described very simply as being an agenda of monoculture plantations and afforestation, which need to be critically examined to unravel the implications on women. On 10 July this year, the Supreme Court passed an order directing that a sum of Rs 11,200 crores accumulated and lying with an “ad

Women, Forestspaces and the Law

69

hoc” Compensatory Afforestation Management and Planning Authority (CAMPA) be spent to raise tree cover in six million hectares of degraded forest land across India.23 This money is collected as “compensation” from user agencies such as state government and private agencies who want to use forest land for non-forest uses under the Forest (Conservation) Act, 1980. The money consists of funds for compensatory afforestation (tree plantations) as also a monetary amount corresponding to the estimated value of the forest area lost. Five states (Orissa, Jharkhand, Chhattisgarh, Andhra Pradesh and Maharashtra) would receive 55 per cent of the total, the amount due to Andhra Pradesh being Rs 1,027 crores. The interim arrangement is to disburse 10 per cent of the accumulated principal amount every year for the next five years, which works out to Rs 90 crores for Andhra Pradesh. Within days24 of the permission, the Andhra Pradesh Government announced its intentions to grant Rs 360 crores to the VSS for development of 23.73 lakh hectares of forest land, under the NREGS.25 The state government argued that as forest land covers a mere 23 per cent of the total geographic area which was below the required 33 per cent and thousands of hectares of forest was reduced due to the land being acquired for irrigation projects, the chief minister was requesting the forest department to take initiatives to “assist the tribals to develop their lands using the NREGS”. The government would provide Rs 6 lakhs for development of each hectare of land in the next two to three years. The Integrated Tribal Development Agency (ITDA) would provide necessary plants and other support to the tribals including silver oak and rubber from the nursery apart from providing cattle under other schemes. The forest department of the government announced that the centre had already released Rs 90 crores from the CAMPA. There are several concerns and problems regarding these developments. First and foremost is the issue of governance. The process of providing funds directly to the joint forest management committees for afforestation, created and controlled by the forest department, completely bypasses and undermines the pre-eminent and constitutionally determined governance role of local bodies like the gram panchayats/gram sabhas. In scheduled areas, in particular, the Panchayat (extension to scheduled areas)— (PESA)—Act, 1996 and the FRA, are powerful legislations. They spell out the role of the gram sabha in governing the forestscape, in tune with the

70

Sagari R. Ramdas

customary practices of local communities, fulfilling livelihoods, cultural aspirations and exercising the right to traditional conservation and protection strategies. According to these laws, the decisions to implement or reject monocrop plantations and afforestation programmes that threaten to displace traditional livelihoods, biodiversity, associated indigenous knowledge and cultures and local ecosystems, should rest with the community and the gram sabha. A second key concern is that with such afforestation programmes, Adivasi communities are confronted with multiple displacements—from land, productive resources, biodiversity, knowledge. The process of enclosing these commons and pushing Adivasi and other forest dwellers out of the forests, has been going on for the past 200 years and continues unabated. Each time the Adivasis lose their land and forests due to the state’s power which takes control in the name of the “larger public good”, they are forced to sacrifice land and cultivate monoculture plantations, to compensate for the earlier loss. The state destroys and the Adivasi has to pay for it over several generations. The communities depend on the forest—the land, the waterbodies and the grazing areas to sustain their livelihoods. Acquiring these forestlands for afforestation purposes would deprive forest dwellers and Adivasis of some or all of their lands and adversely affect their livelihoods and basic needs. They are neither informed nor compensated for these acquisitions. In all this the rights of people conferred under the new FRA are being violated. The plantation development paradigm exacerbates and sharpens existing contradictions and conflicts between the Adivasi community and the state resulting in further erosion of customary rights that these communities have engaged in to meet their basic subsistence needs. It is clear that the profit motive and integration into larger global capital markets continues to drive the state in its articulations of forest development. Each and every component of the forest has to be converted into a source of profit and people too are being manipulated to transform their relationship with this resource and their livelihoods into a purely cash-based monetised transaction. This commercialisation will increasingly shape the forests, curtail the rights of forest dwellers and on the pretext of forest conservation, increasingly cater to the needs of industry and the larger markets. Adivasi women are already familiar with the hegemonic and exploitative role of the VSS, evident in the past decade of neo-liberal forestry

Women, Forestspaces and the Law

71

programmes (Ramdas and Ghotge 2007:47–52, Reddy et al. 2007:312– 319). If the VSS is authorised to execute plantations of rubber and silver oak, on “degraded forest lands” and women are to be paid NREGS wages only if they cooperate with plantations on their lands (whether on private titles or public lands) which facilitates the supply of cheap labour, then once again we will witness massive infringement of their rights. The government has announced identical investment plans and linkages to NREGS for the recently distributed individual land titles. In June and July this year, when distributing individual land titles to Adivasi claimants, the government announced that “coffee, rubber plantations and horticulture schemes are to be taken up in the lands”.26 Once again on 6 July,27 the chief minister told an impressive gathering of tribals at the Government Junior College that rubber, coffee plantations and the cultivation of other crops could be taken up in lands with financial assistance of ITDA and other departments. Besides, borewells would be sanctioned liberally to help irrigate crops. Another report of 6 July28 says: Now tribals can cultivate their lands with dignity without any fear. Tribals can plant rubber plants, mango, cashewnut, orange, lime or palm oil as per the local conditions. The state government would also develop lands in tribal areas and the tribals will be paid daily wages under NREGS Programme though they are working in their own land. Rs 20 crores would be spent towards development of land in tribal areas.

Invisible Displacement The Adivasi women who are being “granted” these private titles, are left with the “free choice” of deciding between mangoes and cashew nuts. This completely destroys the spirit of the legislation which emphasised customary traditions and indigenous livelihoods. Plantations displace Adivasi women from their central and autonomous role of growing food on this land. The forest department saw these as “encroached” lands because they were cultivated with food crops by Adivasi families. Adivasi women have always played a central and pivotal role in producing food and have utilised the entire forest space, the local resources and their knowledge

72

Sagari R. Ramdas

to produce food under the harshest of circumstances. The Eastern Ghat forest regions have been earmarked in India as being “hot spots” in terms of diversity of food crops and origins of specific wild land-races.29 These strategies, ominously identical to innumerable development interventions of the recent past have proven to be completely disastrous with respect to food sovereignty, gender justice and have completely failed as an approach to forest conservation. In the 1980s, the forest department and the integrated tribal development agencies in Andhra Pradesh, initiated social forestry programmes to encourage farmers to raise horticulture plantations on their lands and targeted lands which were under shifting cultivation regimes. People planted trees on their lands which were in the fallow phase of the shifting cultivation cycle and then cleared fresh forests to meet their needs of cultivating food. In the early 1990s, the process of trying to settle farmers through development programmes continued through a project funded by the International Fund for Agriculture Development (IFAD) to the tune of $20 million30 and implemented by the Integrated Tribal Development Authority (ITDA). The main objective of the Andhra Pradesh Tribal Development Project (APTDP) according to the project completion evaluation document was to foster “self-reliant household food security by increasing food production and raising the income of tribal families, with specific focus on households practising podu (shifting cultivation) agriculture”.31 The project strategy included several elements such as planting the hill slopes with tree crops to provide food and cash income, as well as utilising soil conservation measures to restore the ecological equilibrium and improve the productivity of food crops through expanded irrigation and improved farming technology. The project had a clear mandate to target women, through the formation of self-help groups and to take the lead in implementing development plans that would ostensibly provide an “alternate livelihood” to shifting cultivation. The APTDP Completion Evaluation Report acknowledges that while the project interventions resulted in enhanced food production, it simultaneously increased vulnerability to drought because the project created dependence on irrigated agriculture at the expense of traditional techniques that included built-in measures to counteract periodic drought conditions. So the evaluation report analyses that:

Women, Forestspaces and the Law

73

Extensive podu areas have been converted into orchards, with a positive impact on the environment and food production. However, the figures mask important problems, including the poor maintenance of irrigation systems, a lack of sufficient know-how regarding horticultural techniques and, perhaps most significantly, increased vulnerability to drought because of the dependence on irrigated agriculture at the expense of traditional techniques that included built-in measures to counteract periodic drought conditions. Price fluctuations and continuing exploitation by middlemen have meant that farmers have frequently been compelled to sell their products at uneconomic price. In several villages, the progressive diminution of podu farming can make the tribals more vulnerable to severe drought conditions and in some cases they are uneasy at not having their traditional mix of rainfed grain and other low-intensity crops to fall back on. This problem has been exacerbated by extended periods of drought in the past few years. These difficult conditions underline the need to promote agricultural strategies that rely on irrigation and rainfed systems. Environmental impact of application of non-organic inputs for high yielding varieties (HYV) paddy cultivation in low-lying lands such as chemical fertilisers, pesticides and herbicides, is a serious concern.

Another serious admission is that the intervention resulted in the marginalisation of women from agriculture. As the report says, “One negative impact on gender equity has been the fact that men now concentrate more on work in the irrigated areas, whereas men and women were previously accustomed to a large degree to working together on podu land.” Studies of the impact of these development programmes on Adivasi women highlighted how the entry of cash crops and the displacement of food crops has within the space of two decades, pushed women from a vantage point of being joint decision-makers to powerless subordinate positions. In the larger context where women’s access to resources and decision-making within the private and public spaces is limited, state and international agriculture policies have successfully disempowered and marginalised poor women even in those spaces where they enjoyed some power. It has displaced and disempowered women from a pivotal decision-making role to mere providers of labour, simultaneously marginalizing women’s knowledge and expertise (Ramdas et al. 2004: 89). Critically, the APTDP completion report described how despite plantations, “the farmers admitted that they were continuing podu/shifting cultivation as a fall-back mechanism or that they would revive it if necessary”.

74

Sagari R. Ramdas

Independent studies also found that while farmers planted horticulture crops, they cleared new forest areas to continue to practise podu.32 Despite hard evidence that indicts plantations of increasing the vulnerability of Adivasi/forest dependent communities to drought, reduced autonomy over food production, disempowering women and paving the way for new forest areas to be cleared, in the event of the need to cultivate food—the government appears to be firmly fixed on the idea of developing forestlands with monoculture plantations. This is completely antagonistic to the Adivasi idea of the forestscape being a space that integrates physical, biological and spiritual existence (Madhusudhan 2008: 98). The writing is on the wall as far as this forest development plan is concerned and what it portends for women. In addition to being displaced by development projects such as mines and dams, it is these subtle forms of displacement that confront Adivasi and other forest-dependent communities. As recent history has shown, the brunt of multiple displacements will be borne by women, who are reduced to becoming mere providers of wage labour in order to carry out the government’s programmes of plantation, rather than exercising their rightful livelihoods. The government’s strategy of co-financing the plantation agenda by linking it to NREGS is dangerous in that it exploits the vulnerabilities of poor communities, particularly women. It also plays on the “trust” that marginal communities, especially Adivasi women continue to place in the state which for them is represented by the integrated tribal welfare department. The recent experience of how NREGS was used to coerce dalit women in Nalgonda District, Andhra Pradesh, into planting pongamia pinnata and jatropha biodiesel/agrofuel crops on their individual assigned lands, aptly illustrates the manner in which the state is able to “manufacture consent” and force its agenda upon the most marginalised community of women, thereby displacing food crops, women’s associated knowledge and their relationship with the land (Anthra 2008: 75–79).

New Drivers of Forest Appropriation In 2006, the World Bank released a report on opportunities for the forests in India, designed to assist senior Indian policymakers in evaluating

Women, Forestspaces and the Law

75

programme and policy options that could, according to their assessment, “assist communities to use forests as a means of moving out of poverty” (World Bank 2006: ix). Reforms focused on four enabling factors which included securing tenure and management rights for forest dwellers, providing communities access to more efficient market systems for goods and services, developing effective institutional models and strengthening forest management monitoring and control. The report says, “Without more secure and efficient tenure over natural resources such as forests, communities lack incentives to invest...” (World Bank 2006: 48) and again “local ownership offers opportunities to capitalise on forest assets” (World Bank 2006: 13). Along with the traditional markets which include timber, bamboo, non-timber forest produce, the cutting-edge “new markets” for investment are ecological/environmental services such as carbon financing, ecotourism, medicinal plants, certified scarce forest commodities. A new World Bank funded project in Andhra Pradesh proposes to mobilise small and marginal farmers who will be encouraged to raise plantations of tree species with high rates of carbon sequestration in their farmlands, through which they shall earn income from carbon credits, in addition to receiving short-term financing from the BioCarbon Fund (World Bank 2006: 70).33 What was recommended is well underway. Clonal eucalyptus and teak plantations, that have been raised as part of the Andhra Pradesh Community Forest Management Project implemented by the Andhra Pradesh Forest Department (APFD), are currently being assessed for their carbon sequestration (Green House Gas) removal and potential for sale of carbon credits.34 The APFD is also being financed by the National Bank for Agriculture and Rural Development (NABARD) to raise pongamia pinnata plantations on degraded forest lands to produce biodiesel, with efforts on to obtain carbon credits through the Clean Development Mechanism of the Kyoto Protocol.35 The guidelines for the state CAMPAs issued by the Ministry of Environment and Forests (MOEF) affirms that financial investments in India’s forests shall be directed towards compensatory afforestation and promoting “environmental services”,36 along with the conservation, protection, regeneration and management of natural forests. The last piece of the puzzle, to complete the larger narrative to the question of drivers of this agenda, fell into place when the Minister of State for Environment and Forests Jairam Ramesh unambiguously linked

76

Sagari R. Ramdas

India’s aim of regenerating forests to climate change and said that the government will soon announce how much carbon emission is being captured by India’s forests.37 India’s National Action Plan on Climate Change envisages eight missions, of which the MOEF is coordinating the National Mission for Green India, which aims at afforesting six million hectares of degraded forest lands by the end of the 12th Plan.38 India’s position paper for the upcoming United Nations Framework Convention on Climate Change (UNFCC) negotiations, scheduled for December, reiterates the importance of conservation and increase of forest cover as a vital strategy to stabilise climate change. Forests soak up vast amounts of planet-warming carbon dioxide and are potentially a new mode for developing countries to earn billions of dollars, under one component of the proposed UN agreement called Reduced Emissions from Deforestation and Degradation (REDD). Under this “deal”, rehabilitating degraded forests, which can sink carbon emissions and generate valuable carbon offsets, can be sold to rich nations to help them meet their emissions goals. The CAMPA strategy, the plan budget allocations for forestry and the convergence of NREGS with forest regeneration, all form part of India’s climate change initiatives.39 Being paid to grow trees to sink carbon may sound like a great opportunity for poor women to earn money, but it completely distorts and wipes out customary and autonomous ways in which communities relate to this “common resource—the forest”. Their relationship with this space is not an expression of a set of property relations but an autonomous way to engage in a form of life. The global capital market paradigm has an inbuilt momentum that will favour and demand certain kinds of “forestry practices” such as monocultures of fast growing trees like eucalyptus, teak, rubber, mango and greater enclosures of the forest, which works against Adivasi livelihoods and undermines their governance of these forests. The markets are also completely volatile and inconsistent and as seen in the past with newly introduced crops such as tobacco, cotton and coffee, Adivasi farmers are unable to withstand massive price fluctuations and incur huge debts (Muralidharan and Raghuram 2003: 31), when the markets are “down” and fail. The carbon markets and other trade regimes promise to be no different. For the Adivasi women in Adilabad District, Andhra Pradesh, where the first climate change related carbon trading projects40 were implemented

Women, Forestspaces and the Law

77

in several villages, this is precisely what has transpired. The trajectory of forest development has completely impeded their ability to live their lives and exercise their rights to customary livelihoods. In 2000, the Gond women of Powerguda Village, had been persuaded to grow pongamia pinnata tree plantations on forest lands and individual land titles, under a watershed development project financed by IFAD and implemented by the ITDA through the women SHGs (D’Silva et al. 2004: 1–3). They were presented with a biodiesel extraction machine to extract oil from pongamia seeds, which was projected to reach its full potential by 2007, when all the freshly planted pongamia trees would begin to yield oilseeds (D’Silva 2005: 4). In October 2003, the women “sold” an equivalent of 147 tonnes of carbon dioxide in verified emission reduction as carbon replacement to the World Bank to neutralise emissions from air travel and local transport by international participants attending its conference in Washington, D.C. in October 2003. The World Bank paid the women $645 or Rs 30,000 towards calculating the amount of carbon which would be sequestered over a period of 10 years. The income from sale of carbon was used to raise more pongamia saplings, which were planted on field boundaries and bunds and community-owned land (D’Silva et al. 2004: 19 and Wani et al. 2006: 26). However, what did not get publicised was that in the process of planting pongamia trees to sustain the continued supply of biodiesel, the Adivasi women were forced to transform their livelihoods. The degraded forests, which they would have regenerated with indigenous species and agriculture lands that supported food crops such as jowar and other pulses, were replaced with mono-plantations of pongamia, as they were assured a regular income from the sale of seeds. For four years they were prevented from grazing their animals in the forests due to the plantations, which forced several families to sell their cattle, with consequent downstream effects on agriculture, such as increased dependency on chemicals to farm and cultivate their crops.41 What also emerged was that the women were completely unaware of the reason they had received the money and had no idea about the entire ramifications of carbon trade and the relationship of their SHG activities to climate change (Caruso and Reddy 2005: 13). In June, the print media42 reporting on the total failure of pongamia plantations and biodiesel enterprises in Adilabad District, described how

78

Sagari R. Ramdas

the biodiesel extraction unit of Chalpadi (hailed as the village which brokered the first carbon deal in 2003), was closed as women could not make a livelihood collecting pongamia seeds to feed the plant! The money earned through the carbon deal was long exhausted. The situation in the much publicised Powerguda case is no different. To date not a single tree that was planted has yielded pongamia seeds and more than 80 per cent of the trees have perished. The biodiesel extraction machine is lying unused and the women are angry that they were fed false promises and have ended up ruining their lands in the process. “The government officials say they are not responsible and blame us for the failure! Who is accountable for all these experiments with our lives?”43 They want to know. Patriarchal stereotypes of women are also clearly informing the mechanism, by which the new markets can operate and which they analyse is most effectively done through existing organizations of rural women, such as the women’s SHGs. A feasibility study carried out in Adilabad District, Andhra Pradesh, states that women SHGs are the most appropriate institution to carry out carbon offset projects, since they are “dynamic, accountable and transparent” (Pfoffenberg et al. 2002: 19).

Emerging Challenges for Adivasi Women The powerful convergence of global climate change policies and neoliberal markets, appears to be an overriding force that is shaping current environment and forestry policy in India. The current discourses on mitigation and adaptation to climate change and the global need to conserve carbon are undermining the rights as well as democratic decentralised governance systems of Adivasi communities, which hit women hardest. Emerging climate change policies and neo-liberal practices are reshaping the relationship of Adivasis and forests, thereby creating new forest forms. The new forms are culturally read as carbon, cash crops and ecosystem services with scientific knowledge and management as its guardians. Countries appear to be arriving at a global consensus on policies to mitigate and adapt to climate change, that presents a critical stage in the history of Adivasis and we would go as far to say, a defining period. The influence

Women, Forestspaces and the Law

79

it will have on the Adivasi way of life and being are far from clear but all initial evidence points towards the displacement of Adivasi subjectivities and livelihoods, towards that of global carbon capture and conservation, with regressive repercussions on Adivasi women. The recent Indigenous Peoples Declaration on Climate Change44 reaffirmed that: (We) Indigenous People challenge states to abandon false solutions to climate change that negatively impact Indigenous Peoples’ rights, lands, air, oceans, forests, territories and waters. These include nuclear energy, large-scale dams, geoengineering techniques, “clean coal”, agro-fuels, plantations and market-based mechanisms such as carbon trading, the Clean Development Mechanism and forest offsets. The human rights of Indigenous Peoples to protect our forests and forest livelihoods must be recognised, respected and ensured.

This idea has been expressed in several ways both pre and postindependence in the history of Adivasi struggle for recognition of their rights to resources and to their way of life. Laws like PESA and FRA open democratic spaces for them to exercise their rights to resources, protect and govern the forests and are a step forward in their larger struggle against centuries of oppression and injustice. At the same time, when we analyse the ground reality and experiences, we find that these laws and the “new welfare models” such as NREGS, are used by the state to retain its authority, power and supremacy over resources, alienate people from their land and way of life and create and sustain capital markets. The state has identified women as the key to implementing its neo-liberal agenda and in doing so, attempts to restrict and regulate their freedom, confine and contain Adivasi women within new boundaries. However, these women continue to be defiant and resilient and struggle to hold onto and regain lost space. As a Savara woman from Srikakulam passionately articulated: I don’t know whether I was (more) free before the act or after the act. Earlier I was a “thief” in the eyes of the law, but learnt to survive. Now I am “legal” and have legally lost my land as the government took all and gave me nothing. We have “legally” been granted “two acres” of community land, whereas all this is ours (pointing to the hills beyond). We reject these titles. We reject these plantations. We will continue to struggle.

80

Sagari R. Ramdas

Notes 1. Ministry of Tribal Affairs, http://tribal.nic.in/index1.html. 2. In the FRA 2006, the Government of India, for the first time legally acknowledges the historical injustices suffered by Adivasis and other traditional forest dwellers whose rights were inadequately recognised, during the colonial period as also in independent India in the process of the consolidation of state forests. It also acknowledges that these communities are integral to the very survival and sustainability of the forest ecosystems. 3. FRA 2006, Sec 4(4) individual land titles shall be registered jointly in the name of both the spouses in case of married persons and in the name of the single head in the case of a household headed by a single person. 4. FRA 2006, Section 4 (3). 5. FRA 2006, Section 3 (a to m). 6. FRA 2006, Section 3 (i) and Section 5. 7. Forest Right Act, Rules, dated 1 January 2008. Ministry of Tribal Affairs, http://tribal. nic.in/index1.html 8. http://forestrightsact.com/index.php/Forest-Rights-Act-2006/Scheduled-Tribes-andOther-Traditional-Forest/ statements and news. As viewed on 20 July 2009. 9. On 01/05/09 the AP High Court granted permission to the AP Government to issue titles for more than one lakh claims approved by the district-level committees in the state. http://forestrightsact.com/index.php/Court-Cases/Court-Cases/Court-CasesAgainst-the-Forest-Rights-Act.html. as viewed on 20 July 2009. 10. Ibid 8. 125 Houses Burned as Evictions, Atrocities Continue; Dharna Begins Today in Bhopal in January 2008, 25 houses were burned in the villages of Peepal Khotha and Juniwadi in Nepanagar Tehsil, Burhanpur District, Madhya Pradesh. Forest officers, along with more than 100 hired labourers, attacked the villages afternoon. More than 25,100 kg sacks of grains were looted by the department, along with more than 150 chickens, 60–70 goats, money, silver, utensils and clothing. All those attacked had been cultivating their lands since 1979. http://forestrightsact.com/index.php/Forest-RightsAct-2006/Scheduled- Tribes-and-Other-Traditional-Forest/125-Houses- Burned-AsEvictions-Atrocities-Continue-Dharna-Begins-Today-in-Bhopal.html. 11. World Rainforest Movement (WRM) Bulletin No. 135, October 2008. The Bulletin carries the report of the National Forum of Forest Peoples and Forest Workers (NFFPFW) from village Harna Kachar, Sonbhadra District of Uttar Pradesh, where on 24 September 2008 a mob of more than 300 peoples consisting of the police, forest department, revenue officials and dominant sections of the village attacked poor Dalit and tribal communities who have been struggling for rights to forestland which had been illegally taken over by the forest department alter independence. The struggle was under the leadership of women. Over 20 tribal and Dalit women were injured in this atrocity which was inflicted on the community after the implementation of the historical 2006 Forest Rights Act. In the attack, over 20 Dalit and tribal women were injured. They were ruthlessly beaten by sticks, their belongings—clothes, utensils, grains, cycles, livestock, etc.—were looted and around 100 of their huts were lit on fire. This atrocity was inflicted on tribal and Dalit women after the implementation of the historical 2006 Forest Rights Act.

Women, Forestspaces and the Law

81

12. AP Tribal Welfare Department organised a two-day workshop on 16 and 17 February 2008, for all district-level officials from districts where there are forests in AP—these included scheduled and non-scheduled areas. Department representatives from tribal welfare, revenue, forests and local NGOs and Adivasi organisations were invited to participate. 13. Society for Elimination of Rural Poverty (SERP), is implementing Indira Kranthi Patham (IKP) a World Bank project which was known as Andhra Pradesh District Poverty Initiatives Programme (APDPIP) between 2000 and 2005 and Andhra Pradesh Rural Poverty Reduction Programme (APDPRP) from 2003–2009 in all the 22 rural districts of AP. The project works through over eight lakh women self-help groups. The project has appointed social mobilisers from the villages to execute their work. http://www. rd.ap.gov.in/, viewed on 21 July 2009. 14. According to the FRA rules (3–8), the process of claims verification will happen through a three-tier system beginning with the gram sabha, a subdivisional-level committee (SDLC), a district-level committee (DLC) and a state-level committee that shall be set-up to be responsible for verifying the claims at their respective levels and granting final approval to the claimants. The gram sabhas will be convened and will elect a Forest Rights Committee. The gram sabha will then announce a call for claims and authorise the FRC to collect the claims, survey and verify them and pass a resolution on accepted claims, sending them on to the next level. The final authority of approving and according rights rests with the DLC. Ministry of Tribal Affairs, http://tribal.nic.in/ index1.html. 15. Under the Joint Forest Management (JFM) Programme in Andhra Pradesh, 8,343 VSS in the state are actively involved in the protection and development of forests. These VSS are managing 22.89 lakhs ha of forest area or 29 per cent of the total states forest lands. The JFM programme was financed by the World Bank (Andhra Pradesh Forestry Project) in the form of a loan to the tune of Rs 365 crores between 1995 and 2000 and in the second phase (Andhra Pradesh Community Forestry Programme) to the tune of Rs 650 crores from 2002 to 2007, subsequently extended to 2010, http://forest.ap.nic. in/, viewed on 4 August 2009. 16. Status report on implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (for the period ending 30 June 2009). Annexure 1. http://www.tribal.nic.in/index1.html 17. Social mobilisers of the Indira Kranthi Pathakam project, officials involved in processing the claims. 18. Ibid, 15. 19. FRA 2006, Sec 4 (6). 20. 100 cents is equal to 1 acre of land. 21. RTI Information obtained from ITDA, Srikakulam for Gorlapadu Gram Panchayat, Srikakulam District, AP by Chinnayya Adivasi Vikas Sangham, Srikakulam, July 2009. 22. Sakshi Newspaper 16 June 2009. 23. http://www.envfor.nic.in/divisions/forcon/Campa_order_meaning.pdf, 15 July 2009. 24. Government to give Rs 360 crores to VSS for forest growth.www.expressbuzz.com/ edition/story.aspx. Express News Service first published: 22 July 2009 02:23:00 AM IST.

82

Sagari R. Ramdas

25. According to the Union Budget allocations for Environment and Forests 2009–2010, the Andhra Pradesh Government has earmarked Rs 500 crores as part of their NREGA allocations to afforestation programmes. www.envfor.nic.in/mef/U_B_A_EF.pdf 26. YSR distributes certificates of land titles to STs. The Hindu, 9 June 2009, Hyderabad. 27. Fifty more days of work under NREGS. The Hindu, 6 July 2009, Rampachodavaram, East Godavari district. 28. Working days under NREGS to be increased, P.V. Krishna Rao, www.expressbuzz. com/edition/ 29. Arora (1988) described the Eastern Ghats to be home to 96 species which are wild relatives of crops. The eastern peninsular region which includes the Eastern Ghats is a centre of rich crop-diversity for crops such as rice, sorghum, finger millet, pearl millet, foxtail millet, little millet, prosomillet, kodo millet, black gram, green gram, cowpea, horse gram, mucuna, pigeonpea, dolichos bean, rice bean, taros, yams, elephant-foot yam, banana, mango, lemon/lime, jackfruit, Niger, brassicae, sesame, ginger, turmeric, chilli/capsicum, kenaf, sugar cane, coconut, cotton, etc. 30. The Andhra Pradesh Tribal Development Project (APTDP) was appraised by IFAD in December 1990. The loan became effective on 27 August 1991 and closed on 31 March 1999. The total project cost was $46.5 million, funded by the governments of India/Andhra Pradesh ($19.5 million), IFAD ($20.0 million) and The Netherlands ($7.0 million). The cooperating institution was the United Nations Office for Project Services. The Tribal Welfare Department of the Government of Andhra Pradesh was the executing agency, with overall responsibility for project implementation. http:// www.ifad.org/evaluation/public_html/ eksyst/doc/agreement/pi/andhra.htm\ 31. Ibid, 30. Completion evaluation report. 32. Pers comm. Adivasi Aikya Vedika. 33. The World Bank has mobilised a fund to demonstrate projects that sequester or conserve carbon in forest and agro-ecosystems. The fund, a public/private initiative administered by the World Bank, aims to deliver cost-effective emission reductions, while promoting biodiversity conservation and poverty alleviation. The BioCarbon Fund can consider purchasing carbon from a variety of land use and forestry projects; the portfolio includes afforestation and reforestation, reducing emissions from deforestation and degradation and is exploring innovative approaches to agricultural carbon. 34. P. Raghuveer and Verghese Paul, “Carbon for People: Developing a Case for CFM Communities in Andhra Pradesh”, http://www.glowarmkerala.org/Global Warming – Kerala (Abstracts) January 2009. 35. M.S. Haque, “NABARD’s Initiatives in Promoting Forestry Projects for Mitigating Climate Change Kerala (Abstracts)” – January 2009, ibid 34. 36. The Guidelines on State Compensatory Afforestation Fund Management and Planning Authority (State CAMPA). 8 (d) (i) provision of goods such as wood, non-timber forest products, fuel, fodder and water and provision of services such as grazing, tourism, wildlife protection and life support; (ii) regulating services such as climate regulation, disease control, flood moderation, detoxification, carbon sequestration and health of soils, air and water regimes and (iii) non-material benefits obtained from ecosystems, spiritual, recreational, aesthetic, inspirational, educational and symbolic and supporting such other services necessary for the production of ecosystem services, biodiversity, nutrient cycling and primary production, ibid 25.

Women, Forestspaces and the Law

83

37. Govt. to assess climate gain; pump millions in forests. www.livemint. com/2009/07/31172709/Govt -to-assess-climate-gain-p.html, posted: Friday,31 July 2009. 5:27 PM IST. 38. “India and Climate Change, Ministry of Environment and Forests”, Government of India http://www.moef.nic.in 39. Ibid, 23. mef/initiatives_cc.pdf 40. Village Chalpadi, was the first village to sell carbon credits equivalent to 900 tonnes of carbon dioxide worth $4,000 (Rs 1,86,800) in March 2003 to Germany in verified emission reduction. In February 2004, 42 individuals from five countries decided to offset emissions of their private cars by buying the equivalent of 160 tCO2 from Kommuguda (D’Silva 2005). 41. Pers comm, Adivasi Chaitanya Sangham, A dilabad. 42. Surya Newspaper, Adilabad district special,4 June 2009, “Kanabadani Kanuga Viplavam”. 43. Ibid, 41. 44. “Indigenous Peoples’ Global Summit on Climate Change”, Anchorage Alaska, 24 April 2009 http://www.indigenoussummit.com/, The Anchorage Declaration.

References Anthra (2008): “Saying No to Bio-fuels” in Bridging the Knowledge Divide: Livestock Livelihood Resources in the Emerging Context (Hyderabad: Anthra Publications), 75–79. Arora (1988): “The Indian Gene Centre – Priorities and Prospects for Collection” in R S Paroda. R.K. Arora and K.P.S. Chandel (ed.), Plant Genetic Resources: Indian Perspective (New Delhi: NBPGR Publication), 66–75. Caruso, E. and V.B. Reddy (2005): “The Clean Development Mechanism: Issues for Adivasi Peoples in India”, Forest Peoples Programme, 1c Fosseway Centre, Stratford Road, Moreton-in-Marsh, GL56 9NQ, UK (http://www.forestpeoples.org). D’Silva, E, S.P. Wani and B. Nagnath (2004): The Making of New Powerguda: Community Empowerment and New Technologies Transform a Problem Village in Andhra Pradesh, Global Theme on Agroecosystems. Report No 11, Patancheru 502 324, Andhra Pradesh, India: International Crops Research I nstitute for the Semi-Arid Tropics, p. 28. D’Silva, Emmanuel (2005): “The New Oil Economy of the Rural Poor: Biofuel Plantations for Power, Water, Transport and Carbon Credits: A Case Study from Adilabad District, Andhra Pradesh, India”, ITTO, Forest Trends, RRI, October 2005. Haque, M.S. (2009): “NABARD’s Initiatives in Promoting Forestry Projects for Mitigating Climate Change”, viewed on 2 August 2009 (http://www.glowarmkerala.org/Global Warming—Kerala (Abstracts) January 2009.) Krishna, Sumi, ed. (2007): Women’s Livelihood Rights: Recasting Citizenship for Development (Los Angeles, London, New Delhi and Singapore: SAGE Publications), pp 1–38. Madhusudhan (2008): “Girijana Deepika: Challenges for a People’s Organisation in Andhra Pradesh, India”, Participatory Learning and Action, No 58, June, pp. 97–103.

84

Sagari R. Ramdas

Ministry of Environment and Forests (2009): “India and Climate Change”, viewed on 1 August 2009 (http://www.moef.nic.in). ——— (2009): “The Guidelines on State Compensatory Afforestation Fund Management and Planning Authority (State CAMPA)”, viewed on 1 August 2009 (www.envfor.nic. in/mef/U_B_A_EF.pd). ——— (2009): “Campa: What the Supreme Court Order of July 10th 2009 Means”, 15 July 2009, viewed on 1 August 2009 (http://www.envfor.nic.in/divisions/ forcon/ campa_order_meaning.pdf). ——— (2009): “15 Recent Initiatives by India Related to Climate Change”, 31 July, viewed on 5 August 2009 (http://www.moef.nic.in/mef/initiatives_cc.pdf). Mukherjee, K. (2009): “Govt to Assess Climate Gain; Pump Millions in Forests”, viewed on 1 August 2009 (www.livemint.com/2009/07/31172709/Govt-toassess-climate-gain-p. html, posted: Friday 31 July 2009, 5:27 PM IST). Muralidharan, T. and S. Raghuram (2003): Transforming Rural Livelihoods: Maximising Social Opportunities, Technical Report Series 1.9 (Bangalore: Hivos). Poffenberger M., E. D’Silva, N.H. Ravindranath, U Pingle, I Murthy and A Tuttle (2002): “The Clean Development Mechanism and Village-based Forest Restoration: A Case Study from Adilabad District, Andhra Pradesh, India” (Santa Barbara, California: Community Forestry International). Raghuveer, P. and P. Verghese (2009): “Carbon for People: Developing a Case for CFM Communities in Andhra Pradesh”, viewed on 2 August 2009, (http://www.glowarmkerala.org/Global Warming – Kerala (Abstracts) January 2009). Ramdas, S. and N.S. Ghotge (2007): “Whose Rights? Women in Pastoralist and Shifting Cultivation Communities: A Continuing Struggle for Recognition and Rights to Livelihood Resources” in S Krishna (ed.), Women’s Livelihood Rights: Recasting Citizenship for Development (Los Angeles, London, New Delhi and Singapore: Sage Publications), 41–61. Ramdas, S., N.S. Ghotge, N. Ashalatha, M.L. Mathur, Madhusudhan Rao, S. Seethalakshmi, P. Dora,N. Kantham, E. Venkatesh and J. Savithri (2004): “Overcoming Gender Barriers: Local Knowledge Systems and Animal Health Healing in Andhra Pradesh and Maharashtra” in S. Krishna (ed.), Livelihood and Gender: Equity in Community Resource Management (New Delhi, Thousand Oaks and London: SAGE Publications), 67–91. Rao, Nitya (2008): Good Women Do Not Inherit Land: Politics of Land and Gender in India (Social Science Press and Orient Blackswan). Reddy, R., M.G. Reddy, M. Bandi, V.M. Ravi Kumar, M.S. Reddy and O. Springate-Baginski (2007): “Participatory Forest Management in Andhra Pradesh: Implementation, Outcomes and Livelihood Impacts” in Springate-Baginski and P Blaikie (ed.), Forests, People and Power: The Political Ecology of Reform in South Asia (London and Sterling: Earthscan), pp. 302–31. Sakshi Newspaper (2009): 16 June 2009, Srikakulam. Sarin, Madhu (1996): “The View from the Ground: Community Perspectives on Joint Forestry Management in Gujarat, India”, International Institute for Environment and Development, IIED, ISBN1843691086, 9781843691082. Surya Newspaper (2009): “Kanabadani Kanuga Viplavam” “The Lost Pongamia Revolution”, Adilabad District Special, 4 June. The Hindu (2009): “Fifty More Days of Work under NREGS”, 6 July, Rampachodavaram, East Godavari dstrict, viewed on 1 August 2009, (http://www.hindu.com/2009/07/06/ stories/ 2009070654100400.htm)

Women, Forestspaces and the Law

85

The Hindu (2009): “YSR Distributes Certificates of Land Titles to STs”, 9 June 2009, Hyderabad, viewed on 1 August 2009, from (http://www.hindu.com/2009/06/09/ stories/2009060960280600.htm) World Bank (2006): Unlocking Opportunities for Forest-Dependent People in India, Main Report: Volume I, Report No 34481-IN, Agriculture and Rural Development Sector Unit, South Asia Region. Wani, S.P., M. Osman, E. D’Silva and T.K. Sreedevi (2006): “Improved Livelihoods and Environmental Protection through Biodiesel Plantations in Asia”, Asian Biotechology and Development Review,8 (2): 11–29, RIS (www.ris.org.in/abdr.html). World Rainforest Movement (2008): “India: The Police and the Forest Department Attack Women that Fight for Their Lands”, Bulletin No 135, October 2008, viewed on 20 July 2009 (http://www.wrm.org.uy/bulletin/135/viewpoint.html).

4

Women’s Rights and Entitlements to Land in South Asia: Changing Forms of Engagements* Meera Velayudhan

Introduction The large majority of the poor women and men from developing countries, South Asia in particular, are rural and dependent on agriculture, a critical productive asset and source of livelihood. However, women are denied rights in ownership and control of land and few have direct access to land in their own right. A pioneering study1 points to the lack of and the gender gap in effective ownership as the single most important economic factor in explaining gender inequities in South Asia, where land ownership is not only a symbol of economic status but also of social prestige and political power.2 In India, land ownership by women is not more than 2 per cent.3 Throughout South Asia,4 to a lesser extent in Sri Lanka, * This essay was originally published in Economic and Political Weekly, Review of Women’s Studies, XLIV(44): 74–79, 31 October–6 November 2009. Acknowledgements: SANGAT (Delhi), all members of South Asian Network on Women and Land Rights, Working Group on Women and Land Ownership (WGWLO, Gujarat), Ekal Nari Shakti Sangathan (ENSS, Rajasthan), AKRSP (I), Jagori Rural. The paper has also drawn from two national workshops on Single Women and Land Rights held in October 2008 and February 2009 in Kangra (Himachal Pradesh) and Saharanpur (UP). Special thanks to Kamla Bhasin, Rukmini Rao, Ginny Srivastava, K.N. Tiwari, Sejal Dand, Shilpa Vasavada, Nupur Sinha, Apoorva Oza, Dharmishta Chauhan, Nalini Nayak and Amrita Nandy.

Women’s Rights and Entitlements to Land in South Asia

87

women’s land ownership remains very low.5 It is only a few decades since countries in the region gained independence from colonial rule, this new era giving hope for justice, equality, security, livelihood-principles that underlie the constitutions of the countries in the region. 6 Independence also held promises of state-led transformative land reforms to address historical injustices, inequality. Land reforms remain a contested and complex sphere, hindering social change. Unequal land-based relations persist that shape local power relations, advantage the social, economic, politically powerful sections, thereby marginalising the poor. The ongoing debates on land reforms focus on land redistribution and need to address the challenges of historical wrongs, consider the diverse inheritance patterns in landed property which vary within and between countries and by region, religion, caste, community, ethnicity. These variations have been traced back to the colonial heritage when inheritance and marriage laws were viewed as personal laws of specific communities. Laws enacted later have accommodated customary, religious and pluralistic traditions. Entitlements to land are determined by diverse sociopolitical systems that have evolved over time. In most of South Asia, with its diverse patterns of land ownership and distribution, women traditionally do not own property as inheritance practices are patrilineal and customary law, often related to marriage, bar women from obtaining primary rights to land. They have, instead, used rights through their fathers, brothers and husbands. Access is not ownership and women’s secondary rights weaken when norms of social protection begin to erode. Variations also persist, as in India, in relation to inheritance of agricultural land in the tenurial enactments of different states.7 Inheritance rights to land, particularly agricultural land, have been most difficult to enact. In India, it took almost half a century to amend (2005) the Hindu Succession Act of 1956, an amendment that overrides the varied tenurial laws of different states and enables daughters, including those who are married, to become coparceners in joint family property. Land is the centre of many forms of social conflicts in the region. In Nepal, land was a key issue in the armed struggles (1996–2006) and the peace agreement that followed and now land reform is a area of contest in the democratic constitution-making processes. In India, land is at the centre of not only the Maoist movements but also agitations by small,

88

Meera Velayudhan

middle farmers as well as by marginalised castes and communities such as Dalits, Adivasis, coastal communities. In Pakistan, Sri Lanka and Bangladesh, land issues in some form or the other are linked with conflicts while “land grab”8 is now a source of social unrest in recent years in the entire region. The nature of land use changes (linked with growth of cash crops for export, special economic zones, genetically modified crops, free trade agreements), the various models of land acquisition followed, its impact on different social classes, caste, communities from the rural poor, are receiving greater attention in research and advocacy.9

Liberalisation, Changing Terms of Discourse The liberalising states in the region since 1970–1980s, with several nations assuming varied forms of political authoritarianism, provide the wider context in which the engagement with legal rights of women in land emerged since the 1990s, an engagement that has become more nuanced and dialogues within and across nations suggest that the terms of the debate are evolving. The roots of these engagements go back to the 1990s debates among academicians of varied disciplines, development workers, representatives of varied grassroots organisations about the nature of agrarian change, particularly in postcolonial societies of the developing countries. The late 1980s and early 1990s, gender analysis began to impact “peasant studies”—the constitution, composition, functioning of existing households invoked by models of household/family production and reproduction and to critique prevailing theories and notions of “the (peasant) household” in terms of its internal (domestic) relations and contradictions but also in relation to access to land, rural labour market, labour regimes, rural industrialisation, rural politics and thereby also giving insights into gendered aspects of peasant differentiation.10 With growing commercialisation of agriculture (privatisation and commodification of land, cash crop production for external markets), the agenda of state led agrarian reform—land reform—supposedly for redistributive justice, shifted to a new framework of discourse even as the actors on the ground changed. From the mid-1990s, “livelihood” approaches emerged with the focus shifting from “rural development” to “natural resource management”

Women’s Rights and Entitlements to Land in South Asia

89

and now possibly moving towards “climate change” framework. The main features of the “livelihood” approach was the need to look at varied aspects of rural life as being integrated, located within specific contexts, cross sectors and informed by field action and engagements. The gender analysis that developed in the “livelihood” approaches— the interlinkages between gender relations and wider processes of change—brought to the fore (1) new ways of conceptualising households by debunking its unitary model, (2) the links between households and broader economic and political structures, (3) new ways of looking at rural markets as social, political and unequal and (4) the gender bias in institutions, be it state, market or communities (diverse) in managing natural resources. It was in this context that women’s rights and entitlements to land and other land-based resources began to be addressed. With private sector, both national and international actors, playing an increasing role in agriculture, the dynamics between households and private players, between men and women at the household level led to a debate on valuation of women’s work, mainly informal, in agriculture, in particular their role in land use, agricultural production, processing, market access, food security and to a perception that rural poor women use diverse sets of livelihood resources for survival and that the livelihood approach includes the human, natural and social.11 Land governance processes in the region—both formal and informal (policy, laws, institutions) which impact rural poor women’s access, use, control, transfer, ownership—now inform the debate on land reforms, land tenure systems and land administration which are historically specific, diverse and complex at the same time.12 National legal frameworks (constitutional rights, women’s property and use rights in civil codes, family law, labour code, legal inheritance mechanisms, land laws, policies/laws that create barriers), customary laws (norms, religious beliefs, social practices that create gender differentiated land rights and entitlements, customary institutions and authorities, inheritances practices, gap between customary and statutory laws), land tenure and related institutions are now the focus of varied forms of engagements and rural resistance. These involve a range of actors, actions being collective, individual and using newer means and forms of communication, knowledge production and network building in diverse sociopolitical contexts in South Asia and the focus of this paper.

90

Meera Velayudhan

Diverse Sociopolitical Context Women in Pakistan have a history of leading and initiating public protests for justice as evident from the Women’s Action Forum—a platform of women’s organisations formed in 1981—action in the early 1980s against the Zia military regime against unjust laws—the first public protest of any kind at that time. The forum also initiated a debate on the varied interpretations of the Islamic law, its role in a modern state and women’s active role in politics. In mid-1980s, the forum focused on the Shariat Bill that was passed and which decreed that all laws conform to Islamic laws and held that such a law could lead to a conservative interpretation backed by the military ruled Zia Government. While in May 1991, an amended Shariat Bill was passed the debate on whether civil law or Islamic law should prevail, persisted. However, it was rural women sustaining struggles of peasants for land, standing up to the security forces adds a new dimension to a mature women’s movement in Pakistan which has through its own struggles for equality and justice developed a deep understanding of its link with democracy. About 68,000 acres of state owned land in Punjab13 is the site of the most significant popular struggle in Pakistan in recent times, led by Anjuman Muzahreen Punjab. The centre of the struggle of tenants was Okara District where the military claimed to own 17,000 acres of land.14 This source of this struggle was the attempt in 2000, under Musharaf’s military rule, to unilaterally introduce new rental contracts and payment of rent in cash in place of the prevailing battai15 system. This move was in direct contradiction to the policy announcement the same year that “all state land would be allotted to the landless farmers” and directed all four provinces to provide ownership rights to farmers working on land for long time. What began as a peaceful protest, a dharna, in October 2002 in Okara, reached a flashpoint in May–June,2003 with the Pakistan Rangers16 surrounding the farms, cutting-off electricity and water supplies and arresting male members of tenant households. It was at this stage that women joined the struggle, a struggle for survival. As one of the women leaders of this struggle, Nazli Javed put it,

Women’s Rights and Entitlements to Land in South Asia

91

Women formed a thapa17 force. It was meant to wash the brains of the Rangers. Whenever the harvest was ready and the Rangers approached, women would run with the thapas and stop their vehicles. Once a senior officer who we surrounded pleaded that his only child was a daughter and hence he wanted to settle the issue. The Rangers used social pressure too on men folk, subjecting farmers to forced divorces.18 Women and children too are part of different forms of protest and now after eight years, no crops have been given to the military which control the land.19

The presence of thousands of women in such protests also received wide coverage in the media. Women are playing a leading role in the struggle for land ownership at Okara and other areas. They have led several struggles to fight the military farms administration. At Kulyana Military Estate, in 2009, while three peasant leaders were killed by the goons of the military officers, over 20 women were injured fighting along. It led to a point where some of the military officers left their land to safe their lives from the anger of the peasants. That land was distributed by Anjaman Mozareen Punjab (AMP) in Kulyana estate. Landless peasant women got the priority and they were the first one to get the land, showing glimpse of the future of this movement. Never before, so many women came to attend any gathering as they did on 6th April, 2011… Women Workers Help Line, an organisation addressing gender issues including inheritance rights, has been assisting this movement for long time along with other social movements and organisations… Women Workers Help Line spoke on the occasion and got very good response. We spoke of equal land rights for peasant women, against domestic violence and lead role of women in the struggle for land rights.20

The Okara struggle has forged links with and received support from the labour movement and peasant organisations of Pakistan. However, tenancy rights are still viewed from the perspective of the household where the tenancy agreement is in the name of male head of a household.21 Inheritance rights and land rights have since 2000 drawn the attention of several civil society organisations, including women’s organisations such as Women Workers Helpline, Aurat Foundation, SirkatGah, Roots of Equity, Pattan Tarraqiati Tanzeem, Thardeep Rural Development Programme, Anjuman Mazarain Punjab, Bandhar Hari Sangat, Sindhiani Tehreek, South Asia Partnership, Pakistan, etc. These have taken the form of research, including participatory action research, legal literacy and legal aid. A significant study (2007–2009) by Sustainable Development Policy

92

Meera Velayudhan

Institute (SDPI) on gender and land reforms in Pakistan (Sind, Punjab, Balochistan, NWFP provinces) critiqued the approach that looked at land rights as an undifferentiated category of landless poor, ignoring the power relations and hierarachies within and which place women below men, single women below married women, low-caste Hindus below Muslims. Poor peasant women had not emerged as a group claiming their rights to land as their relationship with land was mediated their relationship with men and their reluctance to alienate male relations and support systems that they received through their dependence on men.22 A scoping study by SirkatGah23 of the poorest sites of 54 districts of the four provinces in the context of skewed pattern of land ownership, found a history of varied forms usufructory rights exercised by women—from grazing, gathering rights, collection of fuel, medicinal herbs on common land to a woman’s right to the house and land of her parents. Such rights (e.g., right of residence in husband’s or father’s land for single, widowed, divorced women and protection during life time, not ownership) are not regulated by law and are being eroded owing to appropriation of such lands by local powerful, government, changing agricultural practices, restriction of entry to forests and natural disasters. The study also highlighted the inheritance practices play out in a variety of ways, although in general in all four provinces women do not inherit property and widows lose their customary rights to inheritance if they remarry outside the deceased husband’s family, although law stipulates a division of the deceased’s assets and widow’s right to her share. In Sind, women rarely own the land they inherit and if there are no male members or sons are young, such land is managed by a kamdar or agent and women’s dowry is considered as compensation for inheritance except in the desert area of Thar where some women inherit property. In Balochistan, for example, elder women may sometimes have a say in use and sale of property and women do not inherit if there is a male offspring and where there are no males, tribes like Hazaras give women inheritance although control remains with uncles. In NWFP too, inheritance depends on existence or not of male offspring and in Deraismail Kahn, Mardan, Swat, in rare cases, daughters are given a share in movabale and immovable property. Women can own land as rawajimalika—part of marriage contract where a groom transfers part of property he owns or will inherit to his bride. In Punjab province too varied practices of inheritance prevail. Women may inherit

Women’s Rights and Entitlements to Land in South Asia

93

but have no say in its use or income and among upper classes dowry is considered as compensation for landed property, a daughter may receive a share deducted from her mother’s property.24 Giving up their share property in favour of brothers, sons is widely practiced for fear alienation, losing support from their own family or under social pressure. Although women’s names are entered in property transfer papers on inheritance, but in practice brothers take the land and sisters may receive share in harvest, gifts from natal family, although legally, it is mandatory for women to appear in person and submit an affidavit stating that no force is involved in forfeiting their share. Practices such as haqbakhshwana (giving up rights) where girls are never married or married to the Quran (Multan and Bahawalpur of Punjab and Sind) and wattasatta (exchange marriage where one set of brother, sister marry another set of brother/sister) to retain property in the family. There are few cases of women exercising agency to gain their rights as legal procedures are long, expensive and women too are not aware of the land laws and procedures involved. Seclusion and lack of mobility also act as barriers although there are no restrictions on women feting water. Violence is embedded in enforcing cultural practice that curtail and restrict women’s rights to land and property.25 Where cases have reached the courts and these are limited, the judgements mainly favoured women.26 In recent years in Sind, the provincial government’s land distribution programme, including land for rural poor women, was the focus of study and advocacy. A study by Participatory Development Initiatives (PDI)27 which carried out a massive awarenmess programme among landless women and also provided legal aid, highlighted the lack of legal ownership documents among women land grantees, some of the land was either uncultivable, waterlogged or had sand dunes on them or graveyard land. The study also pointed out need to establish the criteria for land distribution as there were cases where poor women received less than one and a half to two acres while women from wealthy families received upto 15 or more acres each. There were cases of land given to women being cancelled, reallotted to another woman or influential persons occupying the land allotted to poor peasant women owing to lack of legal ownership document, demarcation of the land, clear legal framework and flawed distribution mechanisms.28 Network building within Pakistan and across

94

Meera Velayudhan

countries in the region on women’s rights and entitlements to land, are growing, leading to specific as well as common advocacy efforts. Alternating between representative rule and military-backed political rule, the lack of transparency around enactment/changes in laws concerning women and the different actors involved, emerged dramatically in Bangladesh in July 2008 when women activists stumbled on the fact that the Caretaker Government had reversed the National Policy For Advancement of Women (NAPW)29 passed by the Awami League Government in the late 1990s. The new policy dropped provisions of equal rights in property and assets, struck out inheritance, property, assets, housing and land rights from the list of prerequisites for women’s economic empowerment. These changes in policy followed the protests by Islamic fundamentalist groups and clerics to an announcement by the government itself of a National Women Development Policy on 8 March 2008.30 When women activists approached the Law, Justice and Parliamentary Affairs Minister Moudud Ahmed, he expressed surprise that the Awami League Government could give equal inheritance rights to women. He said, “No government in Bangladesh can commit equal shares in inheritance. It is a very nice deal but will go against Quranic principles.”31 These policy changes go against the main spirit of the Bangladesh liberation war which was the establishment of peasant rights over land as well as the constitutional provisions of equality, asserted Sultana Akter Rubi, Supreme Court lawyer and rights activist.32 There was a specific government declaration to distribute 4.6 million acres of khas33 land to the landless and to rural poor.34 Also, according to the Land Reform Ordinance (1984) and subsequent regulations (1986), if two acres of khas land is allotted to homeless, one acre should be allotted to the husband and one acre to the wife. However, few women own such land and most are unaware of such rights, turning them into victims of intimidation by male family members, land grabbers or their land is sold off to collect dowry for a daughter’s marriage or lose their rights to such land on divorce.35 Although land rights has been the focus of several organisations, one of the earliest to highlight the significance of land for rural poor women was through a survey conducted by SAMATA, a rights-based organisation working among rural poor, which indicated that a piece of land, an acre, can ensure food for a household of five members and give the

Women’s Rights and Entitlements to Land in South Asia

95

household dignity and social status.36 SAMATA formed the Women Action Committee (WAC) which organised and identified women at household levels, provided legal trainings on procedures and how to approach land administration for khas lands including waterbodies. Through the efforts of WAC, the landless received 33,381 acres of khas lands (1 acre for each household, with joint titles) and 80 acres of water bodies on lease.37 Mass meeting, with a large presence of women (75 per cent of the gathering), was organised in Rajbari District by the Land and Agrarian Network For Development (LAND) for khas land for landless and waterbodies for fishing community households.38 What drew so many women to this struggle? Single women present39 stated that joining other women enabled them to negotiate and with ownership of land resist harassment. Many women saw a common interest of husband and wife in acquiring khas land and some were already living and working on such lands without lease documents, despite several petitions. We are all involved in this struggle for khas land, it is a hard struggle since we have to fight the jotedar (rich peasants) and mahajans (trader/moneylender) as well as the police who side with the rich and influential. Look at Ameena, so many false cases have been filed against her and others in the struggle. We have come to show that the law and the people are with us.40

Women also pointed to problems they faced within their family. The only way out of this situation was the support from other women. One burst into tears while narrating her experience of being driven out of her home, with only one cloth and a baby in her arm. She lives with a neighbour. When she approached an organisation, they stressed the need for her to stand on her own feet. Ownership of land will enable her to resist harassment as well as negotiate. If women own land even, men cannot torture them. She said, “Now I have changed and will change society.”41 The women present there also saw common interest of the husband and wife acquiring khas land and some were already living on such land which was not leased to them despite many petitions. A woman participant said, “Both of us, husband and wife, were supposed to come but I have come alone. My child’s father has gone to work. We both want khas land, then we can send our children to school and live like human beings.”42 The willingness to change, the mental attitude to fight and helping others in their times of trouble, these were the reasons why so many women were

96

Meera Velayudhan

present at this mass meeting. A significant role that WAC played was in building the capacity of women, training them on procedures, how to approach land administration and so on. Regular household-level meetings are held, the most needy women headed households are identified and they all gather and discuss land issues. WAC helps such families apply for khas land or water bodies. If any of the families get land, it inspires other women to join the struggle. Through such efforts by WAC, the landless have received 33,381 acres of khas land (1 acre for each family, with joint titles) and 80 acres of water bodies on lease. With the help of SAMATA, thousands of poor families moved to Milon Char, an island in the turbulent Gomani River in mid-west Bangladesh. It is an inhospitable area which until recently was uninhabited. Yet, for the neglected people at the margins of Bangladeshi society, it provided an opportunity to own land and build a future. Chars or islands formed by river sediment accumulation or silt islands that form and erode in the river system) are major sites of land related conflicts, with private forces of jotdars—lathials—confronting the landless at many places, with numerous cases of rape, murder, police harassment of landless. According to a study, the wealthy and influential have been the beneficiaries of distributed khas land. Of the 12 lakh acres of cultivable khas land distributed between 1980–1996, about 88 per cent was given to wealthy persons while only 12 per cent was given to the landless. Systematic data on the share of land distributed to the landless is also lacking in the government accounting systems.43 A study revealed that the policy of joint titles to char was not followed in government redistribution programmes and in several cases, women were not aware that they were joint grantees.44 Export oriented shrimp cultivation in south western Bangladesh has brought changes in land use pattern and has led to social conflicts owing to takeover of khas lands, grazing lands and forcible evictions of landless poor households. Organisations such as Nijera Kori, Sushilan, Prodipon, Bittiyahin Shamabai Samiti organised landless women and men. A study has pointed out the need to enquire into adaptation of older forms of social hierarchies into newer forms and structures, the violence involved in the social process and the changing gender relations.45 The significance of enforcing user rights of women to fish ponds on government lands was highighted by a study,46 with women facing opposition from men from lake fishing groups (Lake Management Groups) given

Women’s Rights and Entitlements to Land in South Asia

97

lease rights over lake fishing and also from wealthy men who occupied government owned khas lands. Terming the establishment of legal user rights as a form of redistributive land reform, the study pointed to the significance of alliance building, coalitions within the village, for women to establish their user rights and credit and other such support. As in other countries of South Asia, there have been intense struggles in the Chittagong Hill Tracts (CHT) in Bangladesh where ethnic/indigenous communities47 have been marginalised, the state subjugating communities through force and enforcement of demographic changes. A movement for the protection of forests and land rights in CHT has been active for long. The indigenous communities have been denigraded as upajati (tribe) by the government although as per the 1900 CHT Regulation and Act 12 of 1995, the people of this region have been referred to as indigenous.48 The Garos and Khasis are matrilineal groups where property is inherited by the youngest daughter. However, it is the men who decide how the land is to be inherited. In other communities such as Chakmas, women do not inherit property. Though a land commission exists in the CHT area, it was not effective. A separate land commission for indigenous communities living in the plains is the demand by the Chakmas. With liberalisation of the economy, eco-parks have been set-up, thus depriving indigenous women their traditional access to the hills. Indigenous women face the brunt of state violence, sexual violence and so on during military operations. It is in this context that The Association for Land Reform and Development (ALRD)49 held round table dialogues on women’s land rights and the need to end patron-client relationships in the socio-economic spheres. It noted that the culture of fundamentalism was being used for usurping land and other properties and, thus, marginalising indigenous and religious minorities and women. The government tried to place Bengali settlers in areas inhabited by indigenous people. Recognition of customary and community land ownership of the hill people have been emphasised in its advocacy work.50 ALRD has also highlighted the plight of Hindu communities who have lost 26 lakh acres of land from 1965–2006, with about a crore Hindus fleeing from Bangladesh from 1961 to 2001 owing to cultural/religious oppression and deprivation caused by the Vested (Enemy) Property Act. This law was repealed in 2009. ALRD had campaigned for the repeal of this law but expressed concern that it was not clear whether women successors will get their share of property if the Act was repealed

98

Meera Velayudhan

as the Personal Law is not clear on this.51 ALRD is currently focusing on building capacitiies of elected women members of union councils as well as union councils as a whole on women’s land rights.

Women and Land in a Changing Political Context It was sustained campaigns and advocacy by women’s organisations and land rights platforms in Nepal that led to not only some changes in women’s inheritance rights but also in women’s land rights surfacing in debates at community, political party and government levels and finding a place in the peace process, in the political transition dialogues and in the drafting process of the Constitution. Although land rights has been the main agenda of peasant struggles in Nepal since the 1940s, the slogan “land to the tiller” did not perceive women as independent tillers. Academic and development discourse too ignored the issue of women’s land rights.52 Why women are controlled by men, discriminated against, subjected to domestic violence, face more food deficit and are not regarded as farmers, was concern that also extended to South Asia. Nepali women as major producers and providers of food, are looked down upon whereas men’s role always highlighted as “superior”. In fact, the term used for husband is master, lord or owner. However, since 2004 in particular, a broad civil society alliance was forged, the National Land Rights Concern Group (NLRF) formed which in turn initiated the National Land Rights Forum or Peoples Organisation (PO), involving 0.8 million rural poor, landless, tenants and 996 activists.53 The activities included policy debates, research, dialogues with political actors and government officials as well as mass actions. Organisations such as CSRC which played a key role in building the NLRF has been advocating for women’s land and property rights. A report by the Nepal Women’s Commission (2004) on women’s asset and property ownership, covering 65 of the 78 districts of Nepal, had revealed that only 0.78 per cent of houses were legally owned by women, 5.25 per cent women held land ownership certificates in their name, 5.45 per cent women owned livestock, 17 per cent owned property such as ornaments and only 16 per cent earned a regular income.54 Lobbying for the inclusion of women in the Land Reforms Commission as well

Women’s Rights and Entitlements to Land in South Asia

99

as reaching out to the 33 per cent of women elected to the Constituent Assembly was part of these efforts.55 These efforts led to the government bringing in a policy to waive 25 per cent registration fees if land ownership is registered in the name of women. Attempts are also ongoing to influence policy and political discussion to include land rights, women’s land rights as a development issue as also in the poverty dialogues in Nepal.56 The Land Rights Forum (LRF), Community Development Environment Conservation Forum (CDECF), Rural Devcelopment Society (RDS) have been campaigning for joint land ownership titles in land in varied districts. In its budget presentation for 2011–2012, the government gave a directive for the implementation of ‘Joint Land Ownership Certificate’, a 40 per cent concession on land registration fees for rural women living in remote areas and 100 Nepalese rupees to be paid by a wife for transfer of ownership. Joint ownership is also included in the TOR of the Landless Problem Solving Commission. Campaigns have led to joint land ownership certifcates being issued is some districts. In May 2012, the National Movement for Timely Constitution Writing and Land Reform mobilised 1,000 rural poor women and 100 men from 50 districts for a meeting in Kathmandu, raising their concerns directly with political parties.57 Discriminatory laws have been the focus of varied forms of advocacy by women’s groups and networks in Nepal. These include the Forum for Women, Law and Development which pointed to the gains made in in 2002 through the 11th Amendement of the Country Code (Maluki Ain) Bill as well as its limitations. The gains included the acceptance of inheritance rights of both daughters and sons by birth to ancestral property, the full right of widow in inheritance, the right of wife in husband’s property, the right of upbringing of the daughter, inheritance right to divorced women with provision of partition of property between husband and wife at time of divorce, equal right in intestate property of unmarried daughter. The Gender Equality Act (2006) on property rights of women entitle women to use property freely without permission of male family members and included daughters within the definition of family under the Act related to land. Coalitions such as Nepal NGO Coalition, National Women Coalition, Durban Review Conference Follow-up Committee Nepal comprising 238 civil society organisations held regional and national consultations in 2010 on varied themes and also prepared

100

Meera Velayudhan

submissions for the Human Rights Council, focusing on international obligations, constitutional and legislative frameworks on varied issues including land rights.58

Conflict, Land and Property Rights The ethnic conflict in Sri Lanka displaced over 800,000 in the north and east while the more recent (2004) natural disaster, the Tsunami displaced another 800,000 including those displaced by the conflict, some more than once.59 While conflict highlighted the gender dimension to land, the government’s development plans in the Tsunami areas brought the gender dimension to land and property rights to the forefront. This included a relook at the Constitution, the systems of customary and personal laws, in particular what is practiced on the ground.60 The right to land, property is not expressly guaranteed as a fundamental right in the Sri Lankan Constitution, although “adequate housing” and “adequate standard of living” are part of Directive Principles of State Policy. The Constitution upholds equality and non-discrimination. On the other hand, customary practices gave women, from all communities, rights in landed property. Varied laws prevail in terms of property and inheritance rights—the Kandyan law, Thesawalamai (Tamilcustomary law) and Muslim law which give women rights, while under the General law women enjoy equal rights.61 When the Centre For Women’s Research Sri Lanka (CENWOR) called a meeting in 2007 of civil society groups to learn and share research findings on women’s land rights, the mismatch between legal rights and ground realities was evident. Where legal sanction was lacking, it was more difficult to address the issues. In the Land Development Ordinance (LDO, 1935) which forms the basis of distribution of state lands, the heir in the male line (eldest son, male cousin) is recognised by the state. The household is viewed as a homogenous unit and land is distributed to the male heir as head of household. Even in cases which come before the land kutcheri, this practice is followed.62 The Women’s Housing Rights Programme63 began to engage with government on the issue of joint titles to land. The LDO gave land title only in the name of one person. Nothing was found in the law that denied joint ownership. Grants of state lands

Women’s Rights and Entitlements to Land in South Asia

101

to Tsunami affected were being allocated under the LDO. The common perception was that this ordinance did not permit joint ownership in allocation of state lands. The Land Commissioner’s Department revealed that there was no express prohibition in the law conferring joint ownership titles. It had emerged as a practice for the sake of administrative convenience. The land commissioner initially held that joint titles were part of the law but in practice the single title was more convenient since couples fought over land. He, however, agreed to act on this issue only if the attorney general gave him the authority. Approaching the attorney general through the Ministry of Land, a list of questions were submitted and a positive reply was received early 2008 in favour of joint titles. There was no legal bar to joint ownership. A government circular would also be sent to local levels. The concept of male as head of household, at the heart of the issue of joint titles, matches not only social perceptions, thinking of government officials but also informs the national accounting systems (e.g., Census), government programmes and schemes, birth and marriage certificates, voter’s list, etc. This disregarded the Department of Census and Statistics own data showing 30 per cent households being female headed. As revealed by a study of Batticaloa (2005),64 many households were headed by women owing to conflict, death threats to men during war, natural disaster, migration. The male head of household concept ignored the ground realities, the economic contribution of women to the household, the contribution of other members of the family in decision-making, the different types of families, even among those which are female headed.65 A survey among women land owners showed that 44 per cent was inherited property, 8 per cent received as gift, 20 per cent was purchased and 28 per cent acquired by other means including encroachment. Sixty four per cent women had clear titles. In the coastal areas affected by Tsunami, Muslim women owned 95 per cent of the land. However, 85 per cent of the land given by government or the private sector after Tsunami was in the name of husbands, where the original title holders were women and 85 per cent held that the form for such grant of land contained the category “head of household”. It is notable that 30 per cent women took legal action to claim property held in their name, 31 per cent lodged complaints and 10 per cent initiated other action.66

102

Meera Velayudhan

However, COHRE held that joint or co-ownership is not suitable in every instance that the state allocates property. Where land is allocated by the state to compensate for land that has been lost, e.g., due to a natural disaster or displacement, then the status of prior ownership needs to be taken into consideration. For example, where the title to land previously owned is not disputed, new state land title should be given to the previous land owner.67 A lobby group was formed in 2009 by COHRE consisting of two INGOs, a grassroots network, two women’s organisations and COHRE. The lobby group consists of CARE, Women and Media Collective (a women’s organisation working in Colombo), Oxfam (Australia), Muslim Women’s Research and Action Forum (a women’s organisation working on the rights of Muslim women based in Colombo), Praja Abhilaasha, a grassroots network working on rights issues, the Estate Community Development Mission (ECDM) to lobby for the introduction of joint ownership in the allocation of state land and to also lobby for the elimination of the head of the household concept. COHRE in its shadow report on Sri Lanka to CEDAW (January– February 2011) states that the concept of the head of household linked with land ownership was used by the colonisers but its continuous use and resulting social recognition have led to its embeddedness in the formal, legal, admisnitrative structures of the state. An example of use of this concept and women were discriminated against was after the Tsunami of 2004. The state allocated new land for those that had lost property to the Tsunami. The shoreline in the north and east of the country was severely affected. The Hindus and Muslims living in the Eastern Province follow the practice of conferring ownership of the parental home on the daughter upon marriage. A study of 100 cases conducted by COHRE reveals that 85 per cent of women state that new property was given in the name of the spouse even though property was in their names prior to the Tsunami. The use of concept of head of household also lead to denial of equal access to development benefits to women. Research reveals that women are not given equal access to state allocated land. In the Mahaweli area, it was revealed that 20 per cent of land was owned by women in the old villages, while land in the newly settled villages is almost entirely owned by men.68 The use of concept of head of household also lead to denial of equal access to development benefits to women.

Women’s Rights and Entitlements to Land in South Asia

103

Recognition of Women as Farmers and Legal Framework In India, agrarian reforms through 1950s and later took place at a time when gender was marginal to the policy agenda and women’s organisations lacked their current visibility. Hence, in most government land reform programmes and land transfers, women’s land rights remained marginal. Apart from the personal laws, tenurial laws also impacted women’s land ownership in varied ways since land laws remain a state subject. However, owing to intense lobbying by women’s organisations, academics and even policymakers, joint titles and other land-based entitlements found a place in the Five Year Plans since the 1980s.69 It took almost half a century to amend (2005)70 the Hindu Succession Act (HSA, 1956), giving Hindu women equal inheritance rights to agricultural land and overriding the state tenurial laws. Daughters including married daughters, also became coparceners in joint family property. However, legal changes remain a vision as ground realities and the diverse forms and levels of engagement on women’s land rights suggest. Following the strike for minimum and equal wages by women agricultural workers in 1989 when women refused to harvest the crop, the Mahila Mazdoor Evam Laghu Kisan Morcha was formed with the support of with support of a civil society organisation, DISHA (Saharanpur, UP ). In June 2006, a campaign called Aaroh was launched, along with other organisations,71 in June 2006 in 10 districts of UP for recognition of women as farmers.72 A survey preceding this campaign covering 10 villages of these districts, covering 2,500 women farmers, those women were perceived as labourers and not as farmers. In January 2007, the Mahila Kisan Hit Adhikar Yatra or procession covered five gram panchayats.73 Women farmers from each gram panchayat handed letters to the pradhan (chairperson of gram panchayat) of the villages demanding access to that government schemes for agriculture. Representations were made to district magistrates for recognition of women at policy levels. Using varied forms of folk forms including a play “Mahila Kisan”, travelling on foot and in bullock carts, the campaign/yatra has since 2008, been extended to all 70 districts of UP, with DISHA itself directly promoting the campaign in 14 districts of western UP. This includes orientation meetings at local and later at district

104

Meera Velayudhan

levels, visits to government department to gather data on women farmers, to banks for number of Kisan Credit Cards in the name of women and to tehsils to determine women’s membership in Mandi Samitis. A state-level workshop held in Lucknow involved organisations from 50 districts.74 Organisations have emerged focusing on specific categories of rural women, such as the Ekal Nari Shakti Sangathan75 (ENSS, formed in 1999 and now extending over 27 of the 33 districts of Rajasthan). Focusing on widows rights to land, ENSS decided to adopt the strategy of direct action at local level instead of approaching the courts. According to Chaggibai Bhil, a leader of ENSS, In the 27 zilllas that we work, we cannot be going to court all the time. There have been 150 to 180 cases in past five years, 60 in the past year alone. Where there are barriers, those cases go to court, sometimes there are setbacks too. Court cases are lengthy, take a lot of energy.76

When a widow approached ENSS, a committee is sent to the patwari (revenue clerk) to look at land records. A date is set by ENSS for claiming the land, the collector approached but who generally sends a revenue official. High-level police officials are also invited an elected member of the panchayat as also members of other civil society organisations. The patwari reads out the title, usually to the brother-in-law, who may not attend. In declaring the title, women’s organisations, policy, administration, elected representatives, sometimes caste panchayat member are involved. As Ginny Srivastava (ASTHA, Rajasthan), a founding member of ENSS, puts it, “She farms her land, feeds her children, gains dignity and justice becomes a reality.” This approach has been successful with lawyers giving only legal advise.77 ENSS has been formed in Himachal Pradesh where one of the demands for single women include 2 acres of land on long-term lease from government’s pool of surplus land. In Kutch, Ekal Nari Shakti Manch (ENSM) was formed post earthquake and now extends over seven districts in Gujarat. The ENSM pointed out that the state government had allocated 45.6 lakh hectares of wasteland to corporates and big farmers on 20 year lease (May 2005 GR ) in Kachchh, overlooking the demands of rural poor women, including single women, for land. To date, ENSM has succeeded in getting property rights including land for 215 women, 7,200 applications have been made to the local administration, 25 women house/plot for house from husband’s property.78

Women’s Rights and Entitlements to Land in South Asia

105

The outcome of state policy, laws, government programmes are located within a nested hierarchy of local governance institutions, varied interests/ actors and, hence, the struggle for women’s land rights involved a multipronged strategy of mass campaigns, negotiations, winning cooperation, if not support at these many levels, as the experiences of Working Group on Women and Land Ownership (WGWLO), a Gujarat-based network of 23 organizations, indicates.79 Perhaps one of the few state-level networks in India working on women’s land rights itself suggests the significance of separate focus and emphasis by establishing the importance of the issue among rural women, build organisations of support, impact the development dialogue in the state, different actors at local levels including the land administration and policy. Two participatory studies by WGWLO played a significant role in developing strategies. The study of women’s agricultural land ownership in Gujarat80 covered 10 districts, 15 tehsils, 23 villages. The study pointed to the deprivation of a basic productive resource for rural women—land—in a state showing high indicators of economic development. In the 22 villages, 4,188 men (81 per cent) as against 561 (11.81 per cent) women owned land. The land is owned jointly or individually or in the marital place by women. Of the 403 cases of land ownership by women for which data could be collected, 193 or 47.89 per cent owned land owing following widowhood, 167 (41.43 per cent) were given ownership to avail benefit from government programmes to escape land ceiling, get tax benefits, save expenses (bribe) of paying Talati (revenue official) for entry of name in land record (Talatis took lower rates of bribe for women). In 18 (4.46 per cent) of the 403 cases, women received land ownership since parents had no male heirs. There were three cases where women owned the land since their husbands were not farmers and hence not entitled to own land. There were 10 cases from tribal and Muslim communities who received land when their husband’s married a second time. Though second marriages may be common, though not socially acceptable, the Panch (informal organisation of caste/community leaders) pressurise the husband to give part of his land to the first wife. From the 23 villages, 111 cases of informal ownership of land by women were identified. In-depth interviews of 60 such cases showed that 28 were widows. As a widow pointed out, “Today I am scared of my brother-in-law and father-in-law not giving my share. Tomorrow when my son grows

106

Meera Velayudhan

up, I will be scared of him taking away the land in his name, leaving me nothing to depend on.”81 Women not only owned lesser quantity of land than other household members but also poor quality, low productivity land. The study also brought out the link between land ownership and marital status, categories of women—as daughter, wife, widow. There was very little social support for daughter’s claim to land. Comparatively, there was more support for widows from maternal family, sons and to a lesser extent from Talatis. There are cases of land transfer by husband to provide security to wife in the eventuality of his death. The opposition to land transfer comes mainly from her in-laws. The study also showed that women land owners paid their land tax regularly. Some women landowners cultivate the land themselves and also market the produce. Women, including married women land owners take part in deciding the crop to be sown. As a woman land owner stated, “Since it is my field, I will only decide what to sow, who else will do it?”82 At the same time, many women, in particular widows, have changed cropping patterns owing to lack of access to credit, knowledge, guidance and support from family members. Women landowners faced several constraints such as lack of financial support during crisis, denial of water on a shared basis during irrigation, lack of information on agriculture, lack of implements to cultivate on time, over charging or unwillingness of the tractor owners to till the land. Widows faced the widest range of such constraints. The caste panchayats play an important role in rural life and carry patriarchal mindsets as also the local revenue officials—Talati, Mamlatdar—with a few exceptions. Even as women’s federations and NGOs faced an increasing number of women wanting to secure land ownership, the need for legal knowledge became more pressing. A paralegal action research (December 2005–April 2006) enabled a group of 25 paralegals to emerge through a process where they themselves identified 1,376 cases, handled 1,170 cases and submitted 904 applications to local land administration. The cases concerned private land—ancestral land/husband’s land, public land, women’s/joint ownership, ownership by women’s collectives. These provided insights into types of cases, barriers at social, legal, administrative levels, while the paralegal themselves developed a perspective on women’s land ownership.83An action research with another state-level network working on gender and governance, the Mahila Swaraj Abhiyan (MSA) was

Women’s Rights and Entitlements to Land in South Asia

107

conducted so as to understand the role that women sarpanch (elected head of village panchayat) could play in expediting cases of women’s land ownership. Orientation and regional workshops led to women sarpanch taking up cases, follow-up on them, exercise their power both with the officials and with natal and marital households of women. These early steps by WGWLO prepared the ground for building ownership of the issue among different sections of rural women, build support groups, develop strategies for negotiations at the local levels and identify policy issues.84 That land reforms and justice for the rural poor, women in particular, is an active agenda, was brought to the forefront by the Andhra Pradesh Vyvasaya Vrithodaala Union (APVV Union) which was formed as a federation of trade unions in 2001. Its roots go back to 1987 when 17 groups initially struggled for equal wages. The organisation then focused on release of bonded labour in Ibrahimpatnam and linked their release with employment guarantee and a rehabilitation package that included land. A study conducted on the government’s programme for distribution of ceiling surplus land showed that 60 per cent of the land distributed reverted back to the rich landlords. APVVU launched a non-violent struggle and women in the forefront raised slogans such as “Men have sold/lost the land, women will fight for land and get it back”. The union’s strategy was to identify land that is available and launch direct action. Women’s leadership, action research and direct action are at the core of this strategy. Approximately 1,82,000 acres of land have been taken from landlords who illegally occupied public land. About 90 per cent of this land was distributed among women—60 per cent to Dalits and 30 per cent to Adivasis and 10 per cent to Backward Castes in Anantpur and Kurnool. The APVVU then started a collaboration with Deccan Development Society (DDS).85 DDS started its activities in the semi-arid Deccan region of Andhra Pradesh. The initial work involved digging of wells by men. However, soon wives began to press DDS for loans. This taught a lesson to DDS—to keep ears open to what women were saying. The DDS strategy was to lay claim to common lands. First map the arable lands, organise Dalit women to gain control of the same. Very poor women used to collect stones for building bunds, earning Rs 100 for 10 days’ work. Their survival at stake, the formation of women’s organisations—sangams—served as the base for developing survival strategies and building alternatives. Women’s survival strategy was multiple cropping. With the adoption of multiple cropping,

108

Meera Velayudhan

the possibilities of complete crop failure was reduced. Women grew 89 traditional varieties. They preserved the seeds. There were no external inputs, they used manure. Their traditional knowledge was being eroded owing to the promotion of chemical agriculture. An analysis of the public distribution system (PDS) indicated its bias towards upper classes. Bajra, ragi, millets grown by the poor were not used in the PDS. Women’s collectives were formed in each village and 100 acres of land were cultivated through government programmes, such as the Jawahar Rozgar Yojna (JRY). A grain bank system was developed in 3,000 grain banks in 78 villages. Dalit women documented 132 varieties of uncultivated greens. Jatras were conducted to promote people’s knowledge. Food security at the household level was crucial. Control of seeds as also having a variety of seed banks can ensure such security. One of the leading Sangam members, Lakshmamma had knowledge of 81 varieties of seeds. Earlier, Dalit women were dependent on landlords for seeds which made them prey to their oppression if the women defaulted on payment. Now landlords ask for seeds and have to show respect to women. De jure control on land was not sufficient, de facto control and what was grown on the land was important. ICRISAT scientists worked with women farmers on seeds to learn from them what took longer to cook, check the taste, etc. There is a debate which centres on what kind of agriculture needs should to be promoted, a debate involving experts, scientists and women. The Andhra State Plan is being opposed as it will push 60 per cent of the people out of agriculture. Its key strategies are: all inputs are externalised, markets are out of control, seeds are out of control. The fight of rural women is for land, low input agriculture, organic, own inputs, face external market (sell/ buy from each other), seek support of government programmes, wherever possible, to these alternatives. There was a need to believe that the poor, women in particular, do have answers once the issues are understood.86

Conclusion Since the 1990s, women’s engagement with issues of land rights have led to varied land alliances and coalitions in the postcolonial, developing countries in particular. In several African countries, these have emerged in

Women’s Rights and Entitlements to Land in South Asia

109

the context of new legislations or constitutional changes in land tenures. In South Asia, since 1970s, 1980s, previously marginalised sections of rural poor started to emerge in movements of peasant organisations, tribal/indigenous, Dalit, landless, environmental and also in the women’s movements. In recent years, most of these struggles have been directed against the impact of the liberalising state on rural poor. For the vast majority, there has been an erosion of livelihood avenues, food insecurity, assetlessness, owing largely to the loss of their traditional access and control of natural resources—forests, pasture land, agricultural land, the coasts, water and waterbodies. Food security is threatened by loss of biodiversity and loss of knowledge. Women, who suffer the most from these trends, have in all movements related to these issues, participated intensely, widely and also in leadership roles. While many of these movements have been documented, very little is known of women claiming their rights within these movements. At the same time, many other struggles of women are ongoing for land and other resource rights. These efforts have been isolated but exchanges of experiences are growing and suggest a range of newer strategies, data and analysis emerging, thereby opening up possibilities for more effective response and common struggles. Central to the varied levels of engagement and in diverse context, is the gap between law, policy reform and actual practice. It is at the community level that such gaps are most glaring and hence need to be addressed. These include social norms and perception, lack of an enabling land administration, lack of awareness including legal awareness among women themselves and the wider economic and political dynamics. This has made organisational strategies multipronged—community approach, raising awareness, conducting participatory research, building capacities at different levels and different actors, advocacy—with legal frameworks and a widening concept of justice at its centre.

Notes and References 1. Agarwal, Bina. (1994) A Field of One’s Own: Gender and Land Rights in South Asia. Cambridge, UK/New Delhi: Cambridge University Press. 2. Ibid.

110

Meera Velayudhan

3. Agarwal, Bina. (1995) Are We Not Peasants Too? SEEDS, November, 2002. 4. SAARC countries India, Pakistan, Sri Lanka, Bangladesh, Nepal are the context of this paper. 5. SANGAT (2008): Report of the South Asian Workshop On Women’s Land and Other Land Based Resources held on 21 July, 2008, Colombo. 6. Ibid. 7. Agarwal, Bina. (1994): A Field Of One’s Own, Gender and Land Rights in South Asia, Cambridge University Press. 8. Land grab takes varied forms and terms are used such as “land acquisition” in India which blur the national and transnational commercial actors involved in land transactions for production and export of food, biofuels, timber, minerals, etc., and the politics of changes in land use and property reltions. See Borras, M.S. and Franco (2012), Journal of Agrarian Change, Vol. 12 No. 1, January 2012, pp. 34–59. 9. Behavioural Science Centre (2012) ‘Development’ versus People: Gujarat model of land acquisition and peoples’ voices, Behavioural Science Centre, Ahmedabad, Gujarat, India Publication. 10. Bernstein, H. and Byres. (2001) From peasant studies to agrarian change, Journal of Agrarian Change, Vol.1, No.1, pp. 22–23. 11. FAO. (2012) “Local Institutions and Livelihoods: Guidelines for Analysis”, 4 March 2012. 12. Amanor, Kojo. (2012) Land governance in 21st century, framing the debate series. International Land Coalition, Rome. 13. The British colonial administration had first leased what were then known as ‘Crown lands’ in 1908, setting-up military farms to produce subsidised grain and dairy products for the British Indian Army. After partition, management of the farms—scattered around Lahore, Okara, Sahiwal, Khanewal, Sargodha and Multan, mainly in the Southern Punjab—passed to the Ministry of Defence and the provincial government. Male tenants and their direct descendants who cultivated the land for more than two generations and changed the land into one of the most fertile lands in the country, had the right of permanent occupancy. In the military run farms, the farmers handed over part of the harvest shares or battai system (as per the Punjab Tenancy Act,1887) to the military, one of the largest landholders in Pakistan. 14. In Okara, the military had leased large tracts of land from the Punjab Provincial Government to establish dairy farms meant to supply milk and dairy products to the army, hence the purpose of their actions was justified as having direct relevance to defence activities. 15. Battai—share or harvest share given as rent. 16. The Pakistan Rangers are a paramilitary force for border security. The military did not hold the legal title to the land under dispute, but the Okara Military Farms held a long-term lease from the Provincial Punjab Government. 17. A wooden bat traditionally used by women to wash clothes at river or canal banks. 18. The Rangers targeted sons-in-law of tenants who refused to consent to the new contracts, torturing them to agree to divorce their wives. The aim was to publicly shame fathers-in-law since divorce was perceived to bring dishonour to the bride’s father and his family in the rural communities. 19. SANGAT. (2008): Report of the South Asian Workshop on Women’s Land and Other Landbased Resources held on 21 July 2008, Colombo.

Women’s Rights and Entitlements to Land in South Asia

111

20. Pakistan—Women Lead the fight for land rights in Okara, International Viewpoint IV Online Magazine IV435, April 2011. 21. Mumtaz, K. and Noshirwan, M. (2005) Scoping Study: Women’s Access and Rights to property in Pakistan, SirkatGah Publication. 22. Brohi, Nazish. (2010) Gender and Land Reforms in Pakistan, The Sustainable Development Policy Institute (SDPI), Pakistan Publication. Also see Khattak, Gul et al. (2010) Women’s Land Rights: Research Findings from Pakistan, SDPI Publication. 23. Mumtaz, K. and Noshirwan, M. (2005) Scoping Study: Women’s Access and Rights to Property in Pakistan, SirkatGah Publication. 24. Ibid. 25. Ibid. 26. Ibid. 27. International Land Coalition. (December 2009). Most peasant women cheated in land distribution, says study, News report from Karachi by Habib Khan Ghori. 28. Ibid. 29. The NPAW had been formulated as part of post Beijing process and adopted in 1997. 30. The caretaker government had formed a 20-member committee “to identify inconsistencies in policy as per Islamic rules and suggest steps”. The changes in policy. See Chowdhary, Naima: Situation Analysis of Women’s Land Rights in Bangladesh presented at the SANGAT (2008) organised South Asian Workshop on Women’s Land and Other Land-based Resources held on 21 July 2008, Colombo. 31. Chowdhary, Naima. Situation Analysis of Women’s Land Rights in Bangladesh presented at the SANGAT (2008) organised South Asian Workshop on Women’s Land and Other Land-based Resources held on 21 July 2008, Colombo and quoting a 27 July 2008 newspaper report from Dhaka (titled “Women’s Policy Sneakily Changed”). 32. Rubi, Sultana Akter. (2008). Land Ownership and Access to Land: Grassroots Level Experience Perspective of Bangladesh, paper presented at the workshop. See SANGAT (2008): Report of the South Asian Workshop on Women’s Land and Other Land-based Resources held on 21 July 2008, Colombo. 33. Public land and includes waterbodies. 34. Faisaluddin, A.M, Jabin T Haque. (…..) Agrarian Transition and Livelihoods of the Rurfal Poor: Agricultural Land Market, (draft) Unnayan Onneshan—The Innovators, Dhaka, Bangladesh. 35. Ibid. 36. Rubi, Sultana Akter. (2008). Land Ownership and Access to Land: Grassroots Level Experience Perspective of Bangladesh, paper presented at the workshop. See SANGAT (2008): Report of the South Asian Workshop on Women’s Land and Other Land-based Resources held on 21 July 2008, Colombo. 37. Ibid. 38. Ibid. 39. Female headed housholds are 12 per cent of all rural households but they rarely get a chance to acquire khas land, according to Dr Abul Barkat’s study Political Economy of Khas Land in Bangladesh (2001). 40. Rubi, Sultana Akter. (2008). Land Ownership and Access to Land: Grassroots Level Experience Perspective of Bangladesh, paper presented at the workshop. See SANGAT (2008): Report of the South Asian Workshop on Women’s Land and Other Land-based Resources held on 21 July 2008, Colombo. 41. Ibid.

112

Meera Velayudhan

42. Ibid. 43. Barakat, A, S. Zaman. and S. Rahman. (2001) Political Economy of Khas Land, Bangladesh, ALRD, Dhaka. 44. Gholam, Sarwar and Rezaul Islam (2007) Women’s rights to land in Bangladesh, UnnayanOnneshan, Dhaka 45. Guhathakurtha, Meghna (2003) Globalisation, Class and Gender relations: The shrimp industry in southwestern Bangladesh inRehman, Matiur ed. Globalisation, Environmental Crisisand Social Change in Bangladesh, University Press Limited 46. Devnathan, Riaz Ahmed Apu (2002) Securing Women’s Property Rights:Problems of Good Governance and Establishing Norms of Economic Functioning, Study by IFAD Consultants 47. There are 45 tribes in the hill regions and plains. 48. Indigenous people of the low lying lands are identified as aborigines by Section 97 of East Bengal State Acquisition and Tenancy Act of 1950. 49. Federation of 273 NGOs, peasant and landless organisations set-up in 1991 involved in research, advoacay, mobilisation. 50. Seminar on “Women’s Right to Land in Bangladesh” organised by ALRD, Action Aid Bangladesh, Nijerakori, 31 March 2008, ALRD Newsletter, Issue 01, June 2008, Dhaka. 51. ALRD Newsletter, Issue 01, June, 2008, Dhaka. 52. Basnet, Jagat. “Women’s Right to Land: A Neglected Issue”, Community Self-reliance Centre (CSRC), Kathmandu, Nepal. 53. Ibid. 54. Dhakal, Sanjaya. (2004) “Property Rights Remain Elusive for Nepal Women”, One World.net, 5 March 2004, http:/www.oneworld.net/article/view/80825/1/. 55. Basnet, Jagat. (2008) Land and Livelihood Rights Movement in Nepal, CSRC, Kathmandu, Nepal. 56. Ibid. 57. CSRC Newsletter, Kathmandu, Nepal (2012). 58. Women’s Rehabilitation Centre (WOREC) Nepal (2010 July) Newsletter, worenepal. org/ event/car. 59. Centre For Policy Alternatives (2005): Landlessness and Land Rights in Post-Tsunami Sri Lanka, Commissioned by IFRC. 60. Wanasundera, Leelangi. (2005): Rural Women in Sri Lanka’s Post Conflict Rural Economy, Centre for Women’s Research (CENWOR), Colombo. 61. Ibid. 62. SANGAT. (2008): Report of the South Asian Workshop on Women’s Land and Other Landbased Resources held on 21 July 2008, Colombo, presentation by Sriwardena, Cyrene (CENWOR, Sri Lanka). 63. Wanasundera, Leelangi. (2005): Rural Women in Sri Lanka’s Post Conflict Rural Economy, CENWOR, Colombo. 64. Emmanuel, Sarala. (2006) “Sri Lankan Women’s Small But Significant Gains in PostTsunami Reconstruction Process”, Suriya Women’s Development Centre, Batticaloa, Srilanka. This survey was part of a national survey of eight districts conducted by Centre for Women’s Research (CENWOR), Colombo. 65. Ibid. 66. COHRE Report: Post Tsunami: Women and Their Right to Own Property: Report of 100 Case Studies from Southern and Eastern Provinces in Sri Lanka. COHRE has also prepared a Gender Guideline to Tsunami.

Women’s Rights and Entitlements to Land in South Asia

113

67. COHRE Shadow Report on Women in Sri Lanka to CEDAW 48th Session, January– February 2011 and supported by CARE, East Community Development Mission, Muslim Women’s Research Action Forum, OXFAM Australia, Praja Abhilasha Network, Women and Media Collective. 68. Post Tsunami: Women and Their Right to Own Property: Report of 100 Case Studies from the Southern and Eastern Provinces of Sri Lanka, COHRE, Sri Lanka. Also, see Camena Guneratne, Women and Land Rights in Irrigation Settlement Schemes in Sri Lanka, Study Series No.5, 2006, Centre for Women’s Research (CENWOR), Colombo, p.76. 69. Velayudhan, Meera. (2008): Gender and Policy Planning: Engendering Governance Institutions in Smita Mishra ed. State, Market and Civil Society, SAGE Publications, Delhi. 70. The has Amendment (2005) was based on the 174 Law Commission Report. In response to the questionnaire circulated to organisations and individuals prior to the report, 88 per cent of respondents asked for changes to the discriminatory clauses on inheritance of agricultural land. 71. The campaign is being coordinated by Gorakhpur Environmental Action Group (GEAG), a premier NGO of the state. The campaign covers 10 western districts of Uttar Pradesh namely, Muzaffarnagar, Meerut, Bijnaur, Bulandshahar, Muradabad, JP Nagar, Ghaziabad, Rampur, Aligarh and Saharanpur. DISHA implemented the campaign in these districts through its partner organisations and directly in Saharanpur District. 72. Tiwari, K.N. “DISHA’s Work in the field of Land Rights: Securing equal and minimum wages in agriculture for women”. See SANGAT (2008): Report of the South Asian Workshop on Women’s Land and Other Land-based Resources held on 21 July 2008, Colombo. 73. Khera, Mewat, Bargaon, Bhojpur, Dasa Majra, Gathera villages. 74. A GEAG study of agricultural extension in eastern UP (2004) showed that among the 250 Kisan Mitras, only one was a woman and date in 2006 that all Kisan Mitras were male. Another survey showed that women’s participation in farmers training programme was nil and women’s participation in the land committee of the gram panchayat was the same. Most women were unaware of the Mandi Samiti. 75. The term Ekal Nari or single women, unlike its popular perception, not only comprises single, unmarried women but also divorced, abandoned and widowed. At least 8 per cent of all females in India are widows. Besides, there large number of women who are separated, abandoned, thrown out or walked out, stay single by choice. If 10–12 per cent of all women fall in the “single-women category”, the number could be over 55 million. 76. SANGAT. (2008): Report of National Workshop on Women, Land and Property Rights with Special Reference to Single Women held on October 3–4, Kangra, Himachal Pradesh. A follow-up workshop was held in February 2009 in Saharanpur, organised jointly by SANGAT, DISHA, JAGORI Rural. 77. Ibid. 78. Ibid. 79. Velayudhan, Meera (2008) Women’s Right to Land: Voices from Grassroots Movement and Working Women’s Alliance in Gujarat, Aga Khan Rural Support Programme (India) Documentation, Ahmedabad. 80. WGWLO (2004): Study on Status of Women and Agricultural Land Ownership in Gujarat,WGWLO, Ahmedabad. 81. Ibid. 82. Ibid. 83. Vasavada, Shilpa: Report of the Paralegal Action Research, WGWLO, 2007, Ahmedabad.

114

Meera Velayudhan

84. Velayudhan, Meera. (2008) Women’s Right to Land: Voices From Grassroots Movement and Working Women’s Alliance in Gujarat, Aga Khan Rural Support Programme (India) Documentation, Ahmedabad. 85. Rao, Rukmini. (2008) Paper presented at the workshop on DDS and dalit women’s struggles in building alternatives. It also includes information drawn from a discussion with Chenniah, a day before the workshop. See SANGAT (2008): Report of the South Asian Workshop on Women’s Land and Other Land-based Resources held on 21 July 2008, Colombo. 86. Ibid.

5

Outside the Realm of Protective Legislation: The Saga of Unpaid Work in India* Padmini Swaminathan

Feminist scholarship across the globe has a long and rich engagement with the theme of unpaid work, emphasising in particular the fact of “extraordinary persistence” (Antonopoulos and Hirway 2010: xxiii) of gender-based inequalities in the world of unpaid work across time, geographical location and traditions. The complex manner in which unpaid work is tied to the functioning of the economy, (1) whether developed or developing, (2) within each between poor/non-poor, employed/unemployed, (3) among different strata of women within each of the categories of poor/non-poor, employed/unemployed, not only manifests deep rooted inequities but has also forced feminists to go beyond intra-household inequalities and map the trajectory of the linkage between unpaid work and the rest of the economy. Comprehending, contextualising and mapping this linkage is crucial to unravel the differential priorities and assumptions that underlie the social and economic policies of different countries and how these impact, in particular, women’s access to and intensity and level of engagement with paid employment. A quick reading of the ever growing literature on unpaid work immediately brings home the significance of the development context undergirding the differential preoccupations of feminists analysing unpaid work. While by and large, developing country studies centre stage the theme of poverty * This essay was originally published in Economic and Political Weekly, Review of Women’s Studies, XLIV(44): 80–87, 31 October–6 November 2009.

116

Padmini Swaminathan

and its relationship to the disproportionate amount of time women spend on unpaid work, developed country studies reveal why addressing poverty and its related aspects alone does not diminish gender inequality in time spent on unpaid work; on the contrary, the burgeoning literature on the nature of post-Fordist Work (see for example, Echtelt, Patricia Van et al. 2009), Work-family Balance (Hobson, Barbara and Fahlen, Susanne 2009, for example), and/or Care Work (for example, Baker, Katherine K 2007) has pushed Western feminists further towards more complex questions such as: (1) “the non-responsibility of work organisations for the social lives of employees… (and thereby) perpetuating the reality of strongly gendered organisations” (Echtelt, Patricia Van et al. 2009: 210). (2) “… an incoherence between aspirations for gender equality in work and family and the policies to achieve it… Policies and discourses that promote the reconciliation of employment and family life through reduced working times and flexible work schemes alongside the growing pressures for increased working time and productivity” (Hobson, Barbara and Fahlen, Susanne 2009: 219) (3) despite “strong political and legal commitment to gender equality, why do we continue to have such a profound disparity with regard to how much paid and unpaid work men and women do? Second (and in my view the much harder question), is there anything wrong with… gendered disparity?” (Barker, Katherine K. 2007: 2). Howsoever interesting and relevant the above questions are, the discussion in this paper is limited to developing country contexts, in particular India, for several reasons. For one, as is well-known by now, the majority of the world’s poor are women, residing largely in countries of the South. Further, unlike as in developed country contexts, women in the South are “trapped in the vicious circle of unpaid work and poverty” making it difficult to bring them out of poverty unless we are able to comprehend “how the poor use their time or rather, how they are forced to use their time to fight their multiple deprivations” (Hirway 2010: 22). In the specific case of India, notwithstanding the relatively high rates of GDP growth and expansion of employment in the tertiary (service) sector, the overwhelming majority of those fortunate enough to be counted as workers are, however,

Outside the Realm of Protective Legislation

117

condemned to sweat it out in the unorganised sector as informal workers. For women in general and women workers in particular the inability of the economy to translate growth into development has phenomenally increased their work burdens without concomitant compensation to them either in terms of time or money. Worse, there is remarkable consistency in the manner in which larger (than men) numbers of women and their ‘work’ either become invisible or get captured in categories that fall outside the purview of protective legislation. This paper traces the trajectory of the phenomena of simultaneous exclusion and (peripheral) inclusion of women by going back to some of the seminal documents that were the outcomes of officially constituted commissions and committees. These documents not only engaged with the broad theme of exclusion/inclusion extensively and holistically, but also strongly recommended, among other things, the enactment of new laws, modification and expansion of coverage of existing laws and stringent implementation of all laws in the spirit of enhancing the status of the marginalised, women included, from non, second class citizens to full citizenship. An avowed purpose of this exercise is to comprehend what accounts for the continued denial of “worker” status to large numbers of women, whose presence as “informally employed” and as “unpaid family workers” is otherwise recognised. Through a critical reading of these documents, we revisit some of the arguments and recommendations of these bodies. The main documents that we have examined include: Towards Equality: Report of the Committee on the Status of Women in India (GoI 1974), Shramshakti: Report of the National Commission on Self-employed Women and Women in the Informal Sector (GoI 1988), Report of the Committees Constituted to Study the Problems and Issues of Unorganised Labour in Tamil Nadu (GoTN 1998), Report of the Time Use Survey (GoI 2000), Report of the Second National Commission on Labour (GoI 2002), Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector (NCEUS 2007) and The Challenge of Employment in India: An Informal Economy Perspective (NCEUS 2009). The paper is organised as follows: in Section 1 we begin with an overview of what constitutes unpaid work, discuss the official categories deployed to capture “women’s work” and “women as workers” and also trace the dimensions of the problem of unpaid work since Independence as enunciated by the above reports. In Section 2, we engage with specific

118

Padmini Swaminathan

aspects of ineffectiveness of protective labour laws as far as women are concerned. In Section 3, we reflect on the larger implications of the continued expansion in the numbers of and time involved in “unpaid work” as well as the continued denial of worker status to women.

Women Work but How and in What Capacity? It is important to lay out the domains of unpaid work before we get into the specifics of how much of this work has become coterminous with women’s work. Following Antonopoulos and Hirway (2010: 16–17), we categorise unpaid work as follows: Unpaid Family Workers: Those workers, usually women and frequently children, engaged in economically productive activities of family enterprises and where men of the household generally undertake the market related sale and purchase tasks. Subsistence Work: This work involves collection of free basic necessities like fuel wood, water, forest produce for sale and consumption at home, fodder for animals as well as raw materials for family enterprises. Unpaid Household Work: Involves both household maintenance as well as care of children, sick, elderly and disabled family members. The Central Statistical Organisation provided a semblance of visibility to the above categories of unpaid work through a pilot study of utilisation of time by men and women in six states in 1998 (GoI 2000). The report emerging from this study classified activities using the 1993 System of National Accounts (SNA) into three categories: (1) those deemed economic work and, therefore, considered to belong to the SNA production boundary—some types of unpaid work activities are included here, (2) those considered as non-economic but recognised as essential to society and hence characterised as extended SNA—which includes household maintenance, cooking, cleaning, care activities, etc. and (3) non-SNA consisting of social and cultural activities, leisure and personal care.

Outside the Realm of Protective Legislation

119

Table 5.1 reproduces the schematic representation of the relationship between paid/unpaid work and SNA/non-SNA work from Antonopoulos (2008) to underscore not only the complex nature of tasks defying neat categorisations into economically productive/non-economic, but also, as will become clearer, their significance from a gender perspective. It is clear from Table 5.1 that unpaid work is at times performed with a view to produce for the market as in cell [B]; it is considered to be production work as in cells [B+C], whether it is destined for the market, as in cell [B] or for own use within the household, cell [C]. (Antonopoulos and Hirway 2010: 4)

The Report of the Time Use Survey (GoI 2000) provides official acknowledgment of the fact that women spend a disproportionate amount of time in extended SNA work. On the other hand, men spend greater amount of time in SNA activities than women. Table 5.2 captures the salient details of the average weekly time spent by men and women in SNA, extended SNA and non-SNA work by location for the six states covered in the pilot survey. Following from data provided in Table 5.2, officially again it is acknowledged that: … women spent 17 per cent more time in SNA plus extended SNA activities compared to men. The result of high work intensity is seen on the lower Table 5.1: The Overlap of Paid/Unpaid Work and SNA/Non-SNA Work SNA Work (within the production boundary)

Non-SNA Work (outside the production boundary)

Paid Work B) Unpaid (for the market) Work (Ultimate purpose and destination of output is the market)

C) Unpaid Work for the Household (ultimate destination is the household itself, namely non-market) D) Unpaid Work (non-market: Household maintenance, care work and volunteer work)

Source: Antonopoulos (2008: 11), also reproduced in Antonopoulos and Hirway (2010: 5).

120

Padmini Swaminathan

Table 5.2: Weekly Average Time (hours) Spent on Activities (combined for six states) Activities SNA Extended-SNA Non-SNA Total Total Persons

Rural

Urban

Total

Male

Female

Male

Female

Male

Female

42.3 3.7 122.0 168.0 22285

22.5 33.9 111.5 168.0 21130

41.1 3.4 123.5 168.0 10305

9.2 36.4 122.4 168.0 9549

42.0 3.6 122.4 168.0 32590

18.7 34.6 114.5 168.0 30679

Source: GoI (2000), quoted in Govt. of India (2007: 78). Note: Time Use Survey was conducted in 18,591 households spread over six selected states, Haryana, Madhya Pradesh, Gujarat, Orissa, Tamil Nadu and Meghalaya.

levels of health and well-being of the women compared to men. Women’s situation in the informal economy is graver since the conditions under which they labour in the SNA activities are already precarious. (GoI 2007: 77)

From a feminist perspective what needs to be repeatedly emphasised is not just the disproportionate burden of unpaid work shouldered by women, but, equally important, the significance of this work to the economy. Households do not simply supply labour to the economy; rather, in contexts where economic growth has failed to be inclusive, as in the case of India, more and more households are forced to fend for themselves by resorting to different kinds of production activities—a phenomenon captured to some extent by official data (see, for example, Table 5.4 in NCEUS 2007: 78). Further, feminist economists have critically examined the tasks associated with routine household maintenance work designated as extended-SNA activity (see Table 5.2) to show how these subsidise the economy, given that in their absence “a higher real wage would be necessary to maintain the same standard of living for employees and their families, with consequences for cost structures and wage-profit rates” (Antonopoulos and Hirway 2010: 7). We now turn to a discussion of women’s employment status, as captured by official statistics, which also lays bare the burden of unpaid work thrust on women because of the maldeveloped nature of the economy. All the official reports mentioned above, in different ways, lament the fact that the system has no credible data on the unorganised sector of the economy, where bulk of women work. What we have, therefore, are estimates of the different kinds of work (paid and unpaid) that women

Outside the Realm of Protective Legislation

121

are forced to undertake for their own survival and for the survival of the households into which they are either born or get married into. Over the years, the number and percentage of women in the unpaid category has increased not decreased, even in periods when the economy has returned significantly high growth rates and has been characterised as “shining”. We begin with the data and analyses provided by the most recent of the above documents, namely, the Reports of the National Commission for Enterprises in the Unorganised Sector (henceforth, NCEUS 2007 and NCEUS 2009), to get a glimpse of the dimensions of the nature, category and quality of employment generated by the economy (as on 2004–2005) to be able to situate and contextualise women’s employment. Thereafter, based on the other reports, we trace the observations that have been recorded on the twin issues of non-collection/non-availability of data relating to the unorganised economy in general and women’s work in particular and on the theme of unpaid work. This exercise immediately reveals not just the resilience but expansion in numbers of women involved in “unpaid work”. A point that needs to be flagged right at the beginning is the following: it was only as late as 2004, when the NCEUS was constituted and which determinedly as a body grappled with the contentious issue of what constitutes the organised/unorganised sector and formal/informal economy and came up with definitions and estimates of the same, that the dimensions, ramifications and complexity of the unorganised economy have become clearer and starker. Thus far, every other report mentioned above and the system in general, has been content to merely describe the unorganised economy in terms of its functioning characteristics and assuming that economic growth coupled with better implementation of existing legislation would take care of the (upwards of) 90 per cent of Indian labour continuing to work informally whatever the level of economic growth of the economy. As per the estimates of the NCEUS (2007), the total numbers employed (principal plus subsidiary) in the Indian economy, computed from NSS 61st round 2004–2005, was 458 million, of which the unorganised sector accounted for 395 million, accounting for 86 per cent of total workers in 2004–2005. The commission has made a distinction between sectors of employment (organised and unorganised) and formal and informal employment in order to highlight the important fact that not

122

Padmini Swaminathan

all those employed in the organised sector are formally employed. Thus, for example, the commission finds that, while the total employment in the economy has increased between two National Sample Survey (NSS) rounds (that is between 1999–2000 and 2004–2005), the increase in total employment has been of the informal kind, even if, sectorally, employment increased by 8.5 million in the organised sector. In other words, what this denotes, according to the commission, is “informalisation of the formal sector” (NCEUS 2007: 4). In 2004–2005, of the 148 million women workers in the Indian economy, 142 million or almost 96 per cent were unorganised workers (against 91 per cent unorganised male workers). This included 91 per cent of women workers in the unorganised sector plus those working informally in the organised sector. In terms of status of employment, the bulk of unorganised sector employment was self-employment, followed by casual employment. For the country as a whole, a great majority of the workers (males and females) were either self-employed (56.6 per cent) or casual workers (28 per cent). Only 15.3 per cent of the workers were regular salaried/wage workers. The self-employed category consists of own account workers, employers and unpaid family workers. Data reveals a decline in the proportion of own account workers and employers for women from 24 per cent in 1983 to 17 per cent in 2004–2005. On the other hand, the share of unpaid family workers had increased from 36 per cent to 44 per cent during this period. Within this, the rural female workers constituted the most disadvantaged in terms of workforce characteristics. Not only the share of unpaid family workers among rural females was the highest, it also had increased by 10 percentage points from 38 per cent in 1983 to 48 per cent in 2004–2005 (NCEUS 2009: 59, see Table 5.3). That in 2004–2005, the bulk of women workers overwhelmingly belonged to the self-employed category and also dominated the “unpaid family workers” section within the category of self-employed is a telling comment on how “India Shining” has not only bypassed, but is actually overburdening without compensating the bulk of women and women’s work in this country. That the NCEUS is not the first body to officially highlight this phenomenon will become clear as we trace the official postindependent history of unpaid work and the different facets of the unpaid work of Indian women beginning with the Report of the Committee on Status of Women (GoI 1974, henceforth 1974 Committee). We quote in

Outside the Realm of Protective Legislation

123

Table 5.3: Percentage Distribution of Workers by Activity Status

Population Segment RURAL Male

Female

URBAN Male

Female

TOTAL Male

Female

Year

Self-Employed Regular Own Unpaid Salaried/ Account and Family Wage Employers Workers Sub-Total Workers

Casual Workers

Total

1983 1993–1994 2004–2005 1983 1993–1994 2004–2005

45.85 40.39 41.9 23.91 16.35 15.94

14.66 17.36 16.59 38.01 42.75 47.98

60.52 57.74 58.48 61.92 59.10 63.92

9.76 8.53 8.93 2.77 2.67 3.68

29.73 33.73 32.59 35.31 38.24 32.41

100 100 100 100 100 100

1983 1993–1994 2004–2005 1983 1993–1994 2004–2005

33.27 33.35 36.2 26.43 24.16 24.14

7.59 8.27 8.42 19.04 20.46 23.05

40.86 41.62 44.62 45.47 44.62 47.19

43.74 42.28 40.84 26.27 29.51 35.97

15.4 16.10 14.54 28.26 25.87 16.84

100 100 100 100 100 100

1983 1993–1994 2004–2005 1983 1993–1994 2004–2005

42.92 38.58 40.23 24.21 17.45 17.28

13.01 15.03 14.20 35.76 39.60 43.91

55.93 53.61 54.43 59.97 57.05 61.18

17.69 17.18 18.26 5.55 6.46 8.95

26.38 29.21 27.31 34.48 36.49 29.86

100 100 100 100 100 100

Source: NCEUS (2009: 59).

some detail the observations of the different committees and commissions on the theme of unpaid work only to underscore the point that despite these observations and despite the fact that these bodies backed their observations with strong legal recommendations to rectify the disadvantages that, women in particular, suffered because of their overwhelming presence in the category of unpaid workers, the system continues to function in the “business as usual” mode. The 1974 Committee was constituted almost 25 years after Independence and its report entitled “Towards Equality” could be regarded as the first comprehensive account of the status of women in India using a range of social, economic, political and legal parameters to contextualise women’s position within the polity and economy of independent India. The 1974 Committee immediately realised the almost complete

124

Padmini Swaminathan

non-existence of meaningful data on the unorganised sector, where bulk of women then worked and continues to work till date. Its observations on the difficulty of arriving at credible numbers of those employed are reproduced below: Next to agriculture the largest numbers of women are employed in various industries, trades and services in the unorganised sector both in rural and urban areas. The statistics relating to women workers in these unorganised and regulated industries and services are highly inadequate and unreliable. At present, there is no agency responsible for the collection of employment statistics in the unorganised sector. The National Commission on Labour, confessing its difficulties in identifying unorganised labour by any exact definition, took recourse to describing some of their characteristics and constraints… While the Census of 1961 and 1971 give us some estimate of women in household industries, we regret to find that no clear estimate is available regarding the actual number of women engaged in the vast unorganised non-agricultural sector. (pp. 169–70)

On the theme of unpaid work, the 1974 Committee recorded thus: The gradual commercialisation and modernisation of the economy and the efforts made by government to replace traditional by modern institutions of credit and marketing, to stabilise ownership of land and to maintain minimum wages, have by no means succeeded in “organising” the production relations to control the degree of exploitation of the weaker section… Traditional modes of production relations which defy modern classifications into employers and employees, labour and capital, rent and interest, still prevail in most industries in this sector. The impact of this intermixture has been greater on women… Many of them are unpaid family workers, both in family enterprises and in wage employment where their contribution to the family earnings as helpers of the men earners is not always realised or admitted. These unpaid family workers are predominantly women and children. Most of them fulfil dual roles by engaging in economic and household activity. More than half of the women who enter the labour force before the age of 15 are unpaid family workers, as compared to one-third of the men in the same category… Despite the variations in the concepts and the timings of the survey, the proportion of unpaid family workers shows a remarkable steadiness in the various rounds… The proportion of unpaid family workers aged 10 and over, estimated from 1961 Census, was about 14% for males and 41% for females… The distribution of the unpaid family workers by age groups indicates that the proportion declines considerably in the case of males after the age of 24, but for females, who form a higher proportion in the age group 10–19, the decline is marginal. (pp 157–159)

Outside the Realm of Protective Legislation

125

Having noted the above, the 1974 Committee, however, did not specifically address the theme of unpaid work in its recommendations for action, which were otherwise very elaborate; much emphasis was placed on extending the coverage of existing legislation, strengthening the administrative infrastructure in-charge of implementing labour policies and the like. Fourteen years after the 1974 Committee, the rationale for the constitution of the National Commission on Self-employed Women and Women in the Informal Sector (hereafter 1988 Shramshakti Report) by the government of India was the following: Despite the existence of various Constitutional and legal provisions safeguarding women’s employment a large number of women workers, particularly in the unorganised sector suffer from various disadvantages relating to their working lives as well as in their homes. The coverage of labour laws has not benefited these women workers in many crucial areas, especially health, maternal and social security… Government of India feels that it is necessary to conduct a comprehensive examination and study of self-employed women workers, as it is in this area that the lack of access to credit marketing, health and social security are most discernible. It has therefore been decided to constitute a Commission on Self-Employed women… the… terms of reference of the commission would also cover all unprotected women labour in the country and extend to women in the informal sector. (GoI 1988: 332–333)

It is important to note that the 1988 Shramshakti Report merely mentions in passing that the government had appointed a committee on the status of women which had “made a comprehensive study of the problems of all women” (p. 7) without engaging with crucial questions such as: Did the government that had earlier appointed the 1974 Committee formally accept the committee’s report? If yes, what, if any, were the actions initiated based on recommendations of the 1974 report? If not accepted, why not? In hindsight, reflecting on such questions is important for feminist praxis. While the 1988 Shramshakti Report has dwelt considerably on how it is important to physically mobilise and organise the labouring women, no thought has gone into why, simultaneously, mobilisation of academics/intellectuals to hold government accountable for not engaging with reports of its own committees and commissions, could not have constituted an equally important mode of action. This is particularly so since, a significant dimension of the problem earlier flagged by the 1974

126

Padmini Swaminathan

Committee, had to do with concepts, contexts, definitions and estimates of the unorganised economy, where hardly any labour laws apply, but in which the bulk of the labour force ekes out a living. Nevertheless, in its own way, the 1988 Shramshakti Report has also engaged with the dimensions of the category, self-employed, through an examination of NSSO data. Self-employment, by and large, constitutes the dominant sector of employment in our economy… According to the 38th Round of the NSSO (1983) over 164.7 million workers (principal plus marginal workers by usual status in the age group 5 years and above), constituting 57.3% of the total workforce, are absorbed in this sector. Out of a total of 98.4 million female workers, as many as 59.1 million (60.1%) are engaged as self-employed workers the percentage being somewhat higher than for males (55.9%). The proportion of females engaged as self-employed workers in the rural areas is much higher (61.9%) than in the urban areas (45.8%)… The total percentage of self-employed workers to total workers in the household enterprises in the case of males is 46.1% as against 18.7% in the case of females. On the other hand, the proportion of male workers working as helpers in household enterprises is 13.4% as against 36.1% in the case of females. (GoI 1988: 33–35)

A dimension of unpaid work covered by Shramshakti 1988 is the “proportion of females engaged in domestic duties along with free collection of goods”, (that is NSS activity Code Status–93) and “proportion of females attending domestic duties only”, (that is NSS Activity Code Status–92) using NSSO 38th Round data pertaining to 1983. Further, the report also provides information on the percentages of women (among those usually engaged in household duties) willing to accept work, part or full-time, if the same is made available to them at their residence. Similar information is provided by NCEUS (2007) for 2004–2005. What becomes immediately clear from comparing 1983 and 2004–2005 data is that the percentages of women reporting domestic duties as principal status and further, the proportions of women who combine domestic duties with a number of other activities that help their households save incomes, remains substantial between the two time periods. We illustrate the findings with data relating to rural women: • Fifty three per cent of rural women (age 15–59 years) in 2004–2005 against 42 per cent of rural women (age five years and above) in 1983, reported being “usually engaged in domestic duties”.

Outside the Realm of Protective Legislation

127

• Similarly, in 2004–2005, of the rural women reporting domestic duties as their principal status, 72 per cent were willing to accept work at home on part-time basis, while 23 per cent were willing to accept work on full-time basis. • In 1983, 61 per cent of the rural women (reporting domestic duties as principal status) were willing to accept work at home on parttime basis, 30 per cent on full-time basis, and 9 per cent wanted work occasionally. • Both reports also give details of the type of work that women were willing to take up at home. Commenting on the considerable numbers of women reporting themselves as “usually engaged in domestic duties” but undertaking “additional activities”, the NCEUS (2007) Report notes: “If all these were to be included as economic activities, the participation rates of women would be considerably higher than what has been currently estimated” (ibid: 78). The chapter on recommendations in the 1988 Shramshakti Report begins thus: … Women’s work as homemakers must be recognised as social/economic production. For, when women fetch water, gather fuel and fodder or tutor their children, they are performing services in the absence of which market services would have to be purchased. Only if this recognised, can other consequences flow from it such as broader definition of women’s work. The National Commission recommends that all subsequent data collection efforts should enlarge the definition of women workers to include all such activities paid and unpaid performed within the home or outside as an employee or on own account. (pp. 249–250)

The report has a further section entitled, “Support Services and Other Programmes”, the preamble to which states: In line with our approach that all women are “workers”, the distinguishing feature of a woman worker is her responsibility for bearing and rearing children. In addition, the responsibility of doing all household chores and looking after the aged and sick has traditionally been her responsibility… It is therefore necessary that social support services should be provided to women workers for assisting them to do their work at home and outside, better and with less worry. (p. 300)

128

Padmini Swaminathan

The 1988 Shramshakti Report no doubt carries forward the agenda of elaborating on the theme of unpaid work by women in terms of recognising both women’s unpaid work as family helpers and domestic unpaid work. It also backs up the recognition of unpaid domestic work with recommendations aimed at reducing domestic drudgery. Nevertheless, the fact that, the component of large numbers of women employed as unpaid family labour continue to remain beyond the reach of any protective labour legislation, does not merit a specific attention.

Time Use Surveys The decline in worker population ratios in the 1990s, particularly sharp among certain age categories of rural women brought to the fore some interesting debates among economists anxious to interpret and explain the phenomenon (Sundaram 2001a and 2001b, Hirway 2002). While Sundaram attempted to attribute the declines to “beneficial rise in student-population ratios”, among others, Hirway’s examination of the argument established the inadequacy of Sundaram’s explanation. On the contrary, Hirway’s probe brought out the limited ability of NSS Surveys to capture the changing profile of work and workers in the economy. To quote Hirway: It seems to us that the concepts and methods used by NSSO to network and workers are not able to capture the work of the poor and particularly, of women satisfactorily… It is [therefore] possible that the decline in the Work Participation Rates in the nineties is due to expansion of non-reported [by the NSSO] part of the workforce which is employed in what is known as “difficult to measure sectors” [such as subsistence work, home-based work or informal work] of the economy. (Hirway 2002: 2029)

To a large extent, the above observation was rectified by the conduct of Time Use Survey (henceforth, TUS) by the Central Statistical Organisation of the Government of India in 1999–2000. The report of the TUS (2000) for the first time provides official visibility to women’s work burden through its data covering various household and non-household activities. The survey was conducted in 18,591 households; spread over six selected states, namely, Haryana, Madhya Pradesh, Orissa, Tamil Nadu, Gujarat

Outside the Realm of Protective Legislation

129

and Meghalaya. The report classifies activities using the 1993 System of National Accounts (SNA). It makes use of three categories: SNA, extended SNA and non-SNA, mentioned earlier. Table 5.4 compares work participation rates (WPRs) using NSSO and TUS methods, while Table 5.5 highlights, among other things, the time spent on paid/unpaid work. Comparing data on WPRs based on the NSSO and the TUS, Hirway (2002) draws some very crucial conclusions that have significant conceptual and policy implications: 1. The WPRs based on the TUS are higher than those based on NSS for males as well as females. 2. The differences between the two sets are higher for women than for men. 3. The extent of underestimation of workforce under NSS rounds as well as the differences between male and female WPRs within a state is not the same across all the states. Neither are these differences related to the level of economic growth of a state. 4. Dividing work into “paid” and “unpaid” categories (Table 5.5), Hirway finds that, while the share of unpaid SNA work is significant in India (for both men and women) in terms of the number of persons engaged in it as well as in terms of the time spent on

Table 5.4: Comparing Work Participation Rates between NSS and TUS (rural)

NSSO 1999–2000

TUS 1998–99

Difference between TUSWPRs and NSS-WPRs [1999–2000]

Rural

Rural

Rural

STATES

Male

Female

Male

Female

Male

Female

Haryana Madhya Pradesh Gujarat Orissa Tamil Nadu Meghalaya Combined States/All India

46.2 51.2 57.1 52.7 56.6 55.6 51.0

17.7 30.7 35.5 23.3 38.1 42.0 25.30

57.3 60.5 60.0 55.47 66.1 56.2 61.3

56.16 49.43 44.17 7.00 50.25 52.45 50.32

11.1 9.27 2.92 7.18 9.5 0.62 10.32

38.46 18.73 8.67 32.17 12.15 10.45 25.02

Source: Extracted from Hirway (2002: 2031).

130

Padmini Swaminathan

Table 5.5: State-wise Distribution of Time Spent (in hours) by Mode of Payment Male States

Paid

Haryana Madhya Pradesh Gujarat Orissa Tamil Nadu Meghalaya Combined States

Female

% time on Unpaid Unpaid activities

33.09 18.12 (1,152) (1,347) 29.41 23.34 (5,247) (6,311) 44.37 14.17 (3,959) (3,897) 31.25 22.42 (2,103) (2,589) 41.42 13.36 (5,633) (4,863) 17.34 35.39 (374) (740) 36.54 18.12 (18,468) (19,747)

35.38 44.25 24.21 41.77 24.39 67.12 33.15

Paid 4.13 (215) 14.31 (3,072) 17.18 (1,747) 8.00 (583) 21.8 (3,034) 7.83 (196) 14.87 (8,847)

% time on Unpaid Unpaid activities 25.34 (1,494) 15.75 (4,391) 13.87 (2,541) 18.18 (3,235) 10.32 (4,280) 25.34 (692) 15.18 (16,633)

85.99 52.40 44.67 69.44 32.45 78.39 50.52

Source: GoI (2000), quoted in Hirway (2002: 2032).

such activities, however, uniformly across all states, the number of women engaged in unpaid activities as well as the time spent by women in such activities is higher than that on paid activities; women also spend more time on unpaid activities than men. Hirway hypothesises (in the absence of time series data) that the decline in the NSS-based WPRs in the 1990s could be a result of the increased share of the unpaid component of the SNA in the1990s and, hence, in a way is not really a decline but a shift, indicating deterioration in the quality of employment. [An] increase in “the difficult to measure” sectors of the SNA work as well as in extended SNA work does indicate deterioration in the quality of employment. The former indicates an increase in employment with low productivity and low wages, while the latter indicates an increased burden on women who are primarily responsible for carrying out unpaid domestic services. (Hirway 2002: 2035)

Taking SNA and extended SNA activities together, the Government of India’s own Report (2000) makes the following important observation:

Outside the Realm of Protective Legislation

131

If we take SNA and extended SNA activities together… [W]omen were found to be working for longer hours than men. If we work out the average of women’s work to the total work of male and female, it works out to 55%, which compares quite well with the figure of 53% quoted in the UNDP Human Development Report for 1995. Therefore, if extended SNA activities are included in economic activities, the contribution of women will be higher when compared to men. (GoI 2000: 81)

As the NCEUS 2008 Report points out, recognition and inclusion of extended SNA activities as economic activities will not result in women getting higher incomes. What it means is the absence of recognition of the kind of work, which although not in the realm of monetisation, is important to the sustenance of the family as well as the economy. Recognition of women’s contribution to extended SNA could and should lead to greater appreciation of public policies for the welfare of women. (NCEUS 2008: 79)

We will come back to this theme in Section 3.

Aspects of Ineffectiveness of Protective Labour Legislation In Section 1 our effort was to demonstrate how ‘development’ has failed to ‘formalize’ employment. Further, and more significant, our analysis reveals that for women in particular, the bulk of their time continues to be spent on ‘unpaid’ activities, be it domestic or non-domestic. In this section, we dwell on those minuscule percentage of women employed in the non-farm sector to whom, theoretically, protective labour legislation should apply, but, by and large, does not. There is no way we can provide an exhaustive account of the way in which the functioning of this sector makes women workers ineligible and/or excludes them from protective legislation; the emphasis here is more to highlight the official recognition of non-applicability of existing protective labour legislation. Further, the burden of our argument is also that, mere effective implementation of existing legislation alone will not suffice, since disabilities are built into the manner in which the legislations themselves have been

132

Padmini Swaminathan

framed and enacted. The Report of the Second National Commission on Labour (henceforth SNCL 2002) and the Report of the Committees Constituted to Study the Problems and Issues of Unorganised Labour in Tamil Nadu (henceforth TN Committee 1998) in addition, record several examples of the blatant manner in which not only are provisions of the law violated on the ground, but, worse, very often, the machinery to administer the law remains either to be created and/or to be made functional. Unlike the SNCL 2002, the Report of TN 1998 provides glimpses of how, administratively, protective legislation has been rendered dysfunctional. We, therefore, dwell at some length on the observations of TN Committee 1998. Overall, in our opinion, the findings of the Committee sum up what is by now well-known, though it rarely gets officially endorsed. The theme of ineffectiveness of protective labour legislation is discussed in two parts: Part 1 provides micro-level but in-depth observations of how our system operates on the ground, while Part 2 provides an overview of the same system at the macro level—both of which construe to discriminate against and make women and women workers’ lives burdensome.

Part 1 The TN Committee 1988 identified 35 occupations, some of which are covered by some labour welfare enactments, while others are not. The Committee found that the conditions of work do not vary much between protected or unprotected industries. Its overall findings are discussed, along with some illustrations, under three broad heads: (1) Mode of recruitment of workers, (2) Conditions of work and (3) Health and safety aspects of work. MODE OF RECRUITMENT A striking feature of most unorganised sector employment is that workers are employed largely through unregistered contractors or subcontractors. The destinies of the workers are linked up with the machinations of a large number of contractors, on whose whims and fancies, likes and dislikes, depend the availability of work for this type of labour. These middlemen

Outside the Realm of Protective Legislation

133

have the least regard for the health and welfare of the workers and, in fact, these middlemen exploit the workers by taking advantage of their economic dependence and ignorance. (GoTN 1998: 22)

The larger implication of the contract system of employment is that, large numbers of workers remain outside the purview of the Factories Act, since employers recognise and deal only with contractors and not directly with the labour that the contractors bring in. For example, the Committee found that, in the saltpans of Vedaranyam, Tamil Nadu, barely 50 to 60 workers were in the payroll of the establishment out of a total strength of 600 workers whom the Committee found working. Similarly, in vessels manufacturing units, the Committee notes that the most important characteristic of this employment is that workers are employed only indirectly on piece-rate or job-rate basis through a contractor who mediates between the actual employer and the workers. This particular employment has been included in the schedule of employment under the Minimum Wages Act of the Labour and Employment Department in 1978; besides, the minimum rates of wages have been fixed and revised periodically. Nevertheless, the Committee notes as follows: Unfortunately, however, the benefits conferred by the minimum wages in law insofar as these workers are concerned, have not yet been translated into reality … on account of the contract labour system carried on by the maistries [contractors] in such an ingenuous way, the number of workmen engaged in every such industrial establishment is always maintained below 10, with the result, neither the Contract Labour (Regulation and Abolition) Act nor the provisions of the Factories’ Act is made applicable to these unregulated factories. (GoTN 1998: 64)

CONDITIONS OF WORK The Committee found that working conditions in almost all the industries were deplorable. Further, it noted that employers used great ingenuity to keep their units outside the purview of the Factories Act. This allowed the employers to fix wages arbitrarily, often below the statutory provisions of the Minimum Wages Act for the concerned industry. A significant finding of the Committee is the active gender discrimination practiced by the industries covered by them. For example, commenting on the practices in the appalam (papad) manufacturing industry, the Committee notes:

134

Padmini Swaminathan

Equal wage for equal work is something utopian and hitherto unheard of by the workers in this occupation. A female worker doing identical work in this occupation is denied 50% of the wages given to the male worker. A male worker earns around Rs 40 per day while a female worker is paid Rs 20 only per day. (GoTN 1998: 19)

Similarly, in the coir industry, while a male worker earns, on average, about Rs 40 per day, a female worker is paid from Rs 25 to Rs 27 per day only (ibid: 29). Further the Committee noted that the employees in the appalam industry were mostly girls who had been forced to drop out from schools and enter the industry to augment their family income. A point stressed by the Committee in the context of the match and fireworks industry was that large numbers of women and children were engaged as home workers in processes that were delinked from other processes that required factory premises. In the latter processes, only male workers were employed. Unfortunately, the Committee did not proceed beyond recording this observation. To us this fact has tremendous implications from a gender angle. Even if eventually the Committee were to succeed in regulating the factories, this by itself was not sufficient to ensure regularisation of those processes of the industry now carried on as home-based work by women and children. HEALTH AND SAFETY ASPECTS OF WORK In a refreshing departure, the Committee comments extensively on safety and health aspects, even if at a general level. Its observations are based on what it encountered during field visits plus the perceptions of the workers whom it interviewed. It observed that the strain of working long hours in unhealthy and insanitary conditions and the low standard of living due to the meagre earnings, contributed to a great extent to workers’ poor state of health. In most industries, the workers are not provided with any protective equipment. In those units where such equipment is provided, the Committee found them to be totally unsuitable. In bleaching and dyeing units, the Committee found workers standing very close to the metal pot fixed over a furnace and without wearing any goggles. Workers were also exposed to risks from handling caustic

Outside the Realm of Protective Legislation

135

soda, acids and other dangerous effluents emanating from the different processes. In the cashew nut industry (which is listed in the “dangerous operation” category of the Tamil Nadu Factories Rules, 1950), the Committee found that the scrubbing and shelling of cashew nuts results in skin cancer. Contact with shell oil causes the peeling of outer skin though it does not result in permanent disablement. The Committee found many workers afflicted by dermatitis. In industries, where the concentration of dust particles in workplaces was heavy and continuous, it found the workers prone to respiratory disorders. In a nutshell, the Committee recorded thus: Since government has not created any enforcement machinery to deal with these employments, even the maintenance of records and registers are not ensured. In this vicious-circled situation, the Committee would like to impress upon the government that creation of adequate infrastructure, with enough manpower and means of mobility is as important as that of scheduling of employment and a fixation of minimum wages. Unless there is enforcement, mere adding of the employments into the schedule and fixation of minimum wages would not do any good to the workers. (ibid 84)

Our purpose in discussing the Committee’s report is to highlight the official recognition, given, albeit belatedly, to not just the abysmal contractual and physical conditions of informally employed workers, but also the risks to their health associated with such employment. The Committee believes that the creation of “appropriate administrative and infrastructure machinery” to implement existing legislation will go a long way towards addressing the problems it highlights. On this point, we are not in full agreement with the Committee since, as the Committee itself has documented, employers have been able to circumvent existing legislation and employ labour without formally recognising them as such.

Part 2 Here we highlight, thematically and through illustrative examples, certain observations made by the reports of the NCEUS 2007 and the SNCL 2002, which, again, not only officially corroborate what have already

136

Padmini Swaminathan

been extensively documented independently by several women’s studies’ scholars and others, but highlight the pervasiveness of the phenomenon of injustice against women workers across the country and across various sectors of the economy. DENYING THE PRESENCE OF WOMEN WORKERS AND/OR DEVALUING THEIR WORK While discussing the mode of recruitment and nature of work in the brick and tiles industry, for example, the NCEUS (2007) notes that only the male workers are registered as workers in the muster roll of the employer and the rest of the family remains invisible to statistics, policy and social protection provisions. Working hours for all workers are about 12–14 hours including for the women who, however, are not on the muster roll (NCEUS 2008: 37). The SNCL 2002, quoting, as illustration, a study conducted in Mumbai on “Women Building Workers” notes as follows: Building workers are employed mostly on daily wages and occasionally according to measurement of the work completed. However, names of women do not often appear on the wage register because their output gets added to that of their men folk except in the case of single women workers. Wages are paid every 10 days only to men and these include the wages due to other members of the family. Often, maternity leave is not extended to women building workers, although it is a statutory obligation. This results in frequent miscarriages… In general, women building workers are deeply concerned about their conditions of work. Pay inequalities, invisibility as producers and earners, blocked opportunities of advancement for want of skill, frequent relocation, lack of freedom to plan their work, hard and long working hours and coping with multiple roles result in a high level of stress. It generates attitudes of passive acceptance of helplessness and misery and conformity, rather than reaction (ibid: 637–638). These findings echo those of several similar studies such as, for example, that of Meena Gopal (1999) and Millie Nihila (1999). Gopal’s study of the Beedi industry in Tamil Nadu, describes inconsiderable detail, among other things, the manner in which the selective issuance of passbooks to women workers in the beedi industry enables the beedi contractors to exercise control over the work and time of the workers; worse, the anxiety that is deliberately allowed to build up before

Outside the Realm of Protective Legislation

137

a passbook is issued (which quite often may not materialise) keeps women across households divided to the advantage of the contractors. The study provides an extremely nuanced account of how region, class, religion, gender and organisation of the industry combine to make this homebased activity extremely stressful for the women workers. Nihila’s study of the leather tanning industry concentrated in the district of Dindigul in Tamil Nadu, centre stages the fact that the provision of the Factories Act, 1948 (according to which women and children are prohibited from being employed in tanning of leather because of the hazardous nature of operations involved in tanning) is used to deny worker status to women employed in the industry. According to her estimates, almost 30 per cent of the total tannery workforce is female. A manner in which this denial is achieved is by recruiting women through contractors; the latter are on the payrolls of the employers, not the actual women working. The combination of the provision of the Factories Act 1948 and recruitment through contractors has resulted in several adverse consequences for women workers. For example, separate toilet or restrooms for women do not exist; no demands for protective gears can be made by these women who have to bare-handedly skin dead animals, clean lime pits soaked with toxic chemicals and waste of skinned animals, among other arduous and unclean jobs. DISCRIMINATION IN WAGE STRUCTURE AND WAGE PAYMENT The NCEUS (2008) finds that even in industries where gender stereotyping of tasks seemed to have broken down with men and women workers performing all tasks, the wage-structure continued to remain gendered, with women uniformly receiving less wages than men. Further, literacy had no role to play in the determination of wages. In addition, the NCEUS (2008) also notes that there is a plethora of minimum wages set for different employments within a state and across states; uniformly these are differentially applied across gender. Worse, the NCEUS finds that the share of wage workers securing wages below the National Minimum wage norm is significantly high across industries clearly indicating that the minimum wage regulations are hardly being followed and applied in most industries. In fact 85 per cent of all casual workers in rural areas and 57 per cent of them in urban areas get wage below the minimum wages (ibid: 48).

138

Padmini Swaminathan

NON-STANDARD CONDITIONS OF WORK: CONSEQUENCES Overall, the official reports quoted above corroborate that, lack of a clearcut employer-employee relationship in the case of the self-employed and among the outworkers/home workers, and lack of a designated place of work for the majority, particularly women, adds to the problem of invisibility of such enterprises. It is this invisibility at all levels and denial of status as worker that has enabled employers as well as the state to deny women their due, however minuscule the scale and poorly administered the statutory benefits admissible to legitimate workers may be. Worse, this invisibility also enables the employers and the state to deny the hazardous, inhuman and exploitative conditions under which most women labour. POOR LABOUR ADMINISTRATIVE MACHINERY What has received some attention in the Report of SNCL1 and in the Report of TN 1998, but none at all in the NCEUS Report 2008, is the theme of labour administration. For example, on the theme of occupational safety and health of workers, the SNCL Report 2002, makes it amply clear that occupational safety and health of labour has never been a priority item on the agenda of any government even going by simple indicators such as number of posts of safety inspectors created, number of vacancies that remain unfilled in these posts despite growth of such industries that mandatorily require monitoring, number of cases of violations filed, numbers disposed off, etc. The TN 1998 Report has more damaging observations: one, it points out how governments have desisted from using their powers of “notification” of industries under Section 85 of the Factories Act, 48, despite sizeable numbers of workers being employed in a range of industries not covered as yet by any labour laws. Two, the report also in detail show mindless, incomplete actions, such as the one undertaken in Tamil Nadu, namely, the bifurcation of labour department into labour department and an inspectorate of factories has resulted in a deadlock to the detriment of workers;2 three, the report notes the near impossibility of effective enforcement of any labour law given the present strength of the labour department3 and four, the report notes the paltry fines imposed on employers for violations of labour laws. To quote the report in some detail:

Outside the Realm of Protective Legislation

139

The fine provided for the first offence under Tamil Nadu Shops and Establishment Act, 1947, Tamil Nadu Catering Establishment Act, 1958, Tamil Nadu Industrial Establishment [National and Festival Holidays] Act, 1958, respectively are Rs 25, extendable up to Rs 50 on certain counts. For the second offence, the fines respectively are Rs 250 on certain counts, while no enhancement of fine is provided for the second or subsequent offences on many other counts… Due to this, important benefits and privileges like minimum wages, service cards, leave, weekly rest and other benefits have not reached the workers. This also deprives them of important documents/ evidences which are basically required even to prove their employment under the employer concerned… In fact, it is noticed that in many cases employers willingly violate the provisions and readily agree to pay the fine provided for such violations. (p. 91)

So, Where Do We Go from Where? In sum, the burden of our argument is the following: One, while universally women shoulder a disproportionate amount of work that is unpaid, the development context of a country matters in that, not only is the nature and intensity of unpaid work different in developed and developing country contexts but larger numbers of women in poverty-stricken households of developing countries have to grapple with a range of tasks, economic and non-economic without being compensated for their efforts, with little or no support from any quarters, official or non-official and with most of them and their work not being recognised as work or workers. Two, among those women recorded as “workers”, larger numbers work as informal workers and in the unorganised sector of the economy. Three, within this large, growing, amorphous segment called unorganised economy, the dominant worker category is that of the self-employed, within which a significant percentage of women work as “unpaid family workers”. Four, data reveals that substantial numbers of women in the prime age group, 15–59 years, who return “domestic duties” as their principal status were also involved in a number of activities aimed at helping their households save incomes if not to directly earn it. Five, more than one-third of the women reporting domestic duties as principal status were willing to accept work at home, part or full-time.

140

Padmini Swaminathan

Six, the applicability of protective labour legislation to the vast numbers in the unorganised economy is abysmal with effective coverage being even less. Seven, labour law administration, as is currently constituted, is part of the problem of ineffective and non-coverage. Read together, the reports (covered in this paper) and their recommendations raise some disturbing questions relating to the resilience of the “unpaid work” category that no amount of effective coverage or even effective administration of protective labour legislation is able to resolve. Worse, the unpaid family worker category has no protective legislation since none are applicable. This, in our opinion, has more to do with the nature and trajectory of economic development and the ensuing employment that this economic growth is generating. Otherwise, it is difficult to account for the sustained manner in which such large percentages of women continue to figure in the category of “unpaid work”, be it “unpaid family work” or “unpaid domestic work”. While every one of these reports recognises the category of unpaid work, their recommendations however have invariably addressed the existing set of laws that cater to wage labour. At one level, the country as a whole and feminists in particular, will need to think through the categories of unpaid work to arrive at a set of policies, that need to operate simultaneously, if the disadvantages that go with being an unpaid worker are to be removed. At another level, taken individually, each of these reports seems to take as given the fact of the continued creation and expansion of the unorganised economy and also the condemnation of large numbers of women to the category of unpaid work as an inevitable consequence of economic growth. As several feminists have pointed out, this view stems from the inability to view the household sector as integral and structurally interlinked to the larger economy. Further, as long as we continue to designate a number of routine household tasks as women’s tasks, public policies will continue to remain gendered. To return to a quote mentioned earlier from the NCEUS (2008) Report that stated: “Recognition of women’s contribution to extended SNA could and should, lead to greater appreciation of public policies for the welfare of women” (p. 79). To us, howsoever well meaning the NCEUS’ concern for women’s welfare maybe, if the underlying assumptions of public policies are not questioned, the latter could as well contribute to essentialising and reinforcing domestic tasks as women’s work, with public

Outside the Realm of Protective Legislation

141

policies being seen as enhancing women’s (not household’s or men’s) welfare and, thereby, perpetuating and rationalising women’s continuance in the “unpaid work” category.

Notes 1.

2.

3.

The Second National Commission on Labour has examined extensively the functioning of institutions responsible for safety of workers in the mining industry, for example. Suffice it to note here the shocking findings of the Commission relating to, among other things, the low priority accorded to recruitment and expansion of personnel needed to undertake the task even as the industry has grown by leaps and bounds. “Recently, the Parliament’s Standing Committee on Labour and Welfare (13th Lok Sabha) observed (para 2.64 of its report) that during the last 15 years, the size of the mining industry has increased fourfold, whereas the staff component of the DGMS has remained static and this is grossly inadequate to meet safety operations in mines. The Committee further observed that out of 598 coal mines, the department has been able to make complete inspections in only 159 coal mines during the year 2000–2001. The department has pleaded that due to inadequate staff, it could carry out inspection of all mines only once in four years. The shocking state of inadequacy of staff can be seen from the fact that at present, the department has only 130 inspecting officers against the sanctioned strength of 167… It can be observed that the actual number of inspecting officers is about 22 per cent lower than the sanctioned strength. We were informed that this was because of procedural delays in filling up vacancies arising from retirement, etc. In fact, a shortage of 20–30 per cent inspecting officers against the sanctioned strength normally exists in this organisation. In addition to this, there has hardly been any increase in the strength of inspecting officers since 1971 though the mining industry has increased several times during this period” (ibid: 66 and 73). Subsequent to the bifurcation, the Tamil Nadu Government issued a government order whereby the labour department was to recruit 60 assistant inspectors of labour (factories) to be deputed to the inspectorate of factories to oversee the implementation of the Factories Act. However, since the government has not created 60 posts of assistant inspectors of factories, the implementation of the Factories Act which includes the notification under Section 85 has not been possible. The TN 1998 Report records that an inspector in the labour department enforces 21 labour enactments. This is in addition to the regular administrative work, court work, apart from periodical special drives under Consumer Protection Acts.

References Antonopoulos, R. 2008. “The Unpaid Care Work Paid Work Connection” Working Paper 541, Annandale-on-Hudson, NY: The Levy Economics Institute of Bard College. Antonopoulos, R. and Hirway, I. 2010. Unpaid Work and the Economy: Gender, Time Use and Poverty in Developing Countries, Palgrave Macmillan, GB.

142

Padmini Swaminathan

Baker, Katherine K. 2007. “The Problem with Unpaid Work”. From the Selected Works of Katherine K. Baker available at http://works.bepress.com/katherine_baker/23 Downloaded on April 15, 2012. Echtelt, Patricia V, Glebbeek, A, Lewis, S and Lindberg, S. 2009. “Post-Fordist Work: A Man’s World? Gender and Working Overtime in the Netherlands”, Gender and Society, Vol. 23, No. 2, April, 188–214. Gopal, Meena (1999): “Disempowered Despite Wage Work: Women Workers in Beedi Industry”, Economic & Political Weekly, Vol. 34, Nos. 16 and 17, 17–24 April. GoI (1974): “Towards Equality: Report of the Committee on the Status of Women in India”, Ministry of Education and Social Welfare, Department of Social Welfare, Government of India, December. ——— (1988): “Shramshakti: Report of the National Commission on Self-Employed Women and Women in the Informal Sector”, Department of Women and Child Development, Ministry of Human Resource Development (New Delhi: Government of India). ——— (2000): “Report of the Time Use Survey”, Ministry of Statistics and Programme Implementation, Central Statistical Organisation (New Delhi: Government of India), April. ——— (2002): “Report of the Second National Commission on Labour”, Ministry of Labour (New Delhi: Government of India). GoTN (1998): “Report of the Committees Constituted to Study the Problems and Issues of Unorganised Labour in Tamil Nadu”, Office of the Commissioner of Labour (Chennai: Government of Tamil Nadu). Hirway, I. (2002): “Employment and Unemployment Situation in the 1990s: How Good Are NSS Data?” Economic & Political Weekly, Vol. 37, No 21, 25–31 May, 2027–2036. Hirway, I. 2010. “Understanding Poverty: Insights Emerging from Time Use of the Poor” in Antonopoulos, R and Hirway, I. Unpaid Work and the Economy: Gender, Time Use and Poverty in Developing Countries, Palgrave Macmillan, GB, pp. 22–57. Hobson, B and Fahlen, S. 2009. “Competing Scenarios for European Fathers: Applying Sen’s Capabilities and Agency Framework to Work-family Balance”, The Annals of the American Academy of Political and Social Science, 624, July, 214–233. Millie, Nihila (1999): “Marginalisation of Women Workers: Leather Tanning Industry in Tamil Nadu”, Economic & Political Weekly, Vol. 34, Nos. 16 and 17, 17–24 April. NCEUS (2008): “Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector”, National Commission for Enterprises in the Unorganised Sector (New Delhi: Academic Foundation) August. ——— (2009): “The Challenge of Employment in India: An Informal Economy Perspective”, Vol. 1, Main Report, New Delhi, April. Sundaram, K (2001a): “Employment-Unemployment Situation in the Nineties: Some Results from NSS 55th Round Survey”, Economic & Political Weekly, Vol. 36, No. 11, 17–23 March. ——— (2001b): “Employment and Poverty in India in the Nineteen Nineties: Further Results from NSS 55th Round Employment-Unemployment Survey, 1999–2000”, paper presented at the International Seminar on “Understanding Socio-economic Changes through National Surveys”, organised by the National Sample Survey Organisation, 12–13 May, New Delhi.

6

Gender Equality at Workplace: A Frozen Agenda D. Nagasaila

The arguments/observations in this chapter are an outcome of my experiences as a labour law practitioner representing trade unions and individual workers for over two decades in the Madras High Court, Tamil Nadu, India. As a labour lawyer and a woman with a commitment to the feminist agenda several issues were subconsciously flagged in my mind but I did not have the time or the opportunity to pause, reflect and understand my experiences in conceptual categories. This is the first time I have attempted to articulate these issues in the larger framework of gender equality, equity, law and labour.

Introduction India has a long history of a strong, vibrant and militant women’s movement. The movement has been active with issues of violence against women—rape, dowry, dowry death, sati, violence within the institution of marriage or issues of property within the institution of family and marriage such as succession, coparcenary rights, maintenance, right to reside in matrimonial home and so on. However, the engagement of the women’s movement with issues of discrimination in employment, at workplace, representation of women in the leadership of trade unions, effective participation of women in collective bargaining and in engendering to

144

D. Nagasaila

make the workplace practices more egalitarian and democratic has not been adequate. The struggles and debates are still limited to issues of women’s protection at workplace and have seldom progressed to issues of empowering women at the workplace. Thus while there were many new legislations, amendments to legislations1 to keep pace with the growing demands of women’s movements on issues of custodial rape, right to property, maintenance, dowry and related violence and domestic violence, the only legislations in the field of employment specially providing for women workers have been the Maternity Benefit Act, 1961 and the Equal Remuneration Act, 1976. There are few sections in the Factories Act restricting employment of women in certain hazardous work,2 apart from welfare measures such as separate washrooms for women and crèches.3 The only other significant inclusion in respect of protection of women in employment is the introduction of “sexual harassment” as misconduct in the Industrial Employment (Standing Orders) Act, 1946 and in the Conduct Rules of central and state government employees. Even this was done on the directions given by the Supreme Court of India in Vishaka v. State of Rajasthan.4 The starting point of this chapter is to critically examine how far India has fulfilled its obligations arising out of its membership in the International Labour Organisation (ILO), ‘to respect, to promote and to realise’, inter alia, the universal rights of freedom of association and the effective recognition of the right to collective bargaining and the elimination of discrimination in respect of employment and occupation.5 Both these goals can be achieved only if the structural inequalities existing in our society both in the public and private sphere are addressed. Historically, the working class rights have been achieved only through unionisation and collective bargaining and there is no reason to believe that the route for achieving gender equality in workplaces can be any different. This is more so when discrimination faced by women in the public sphere is only an extension of the discrimination suffered in the private sphere because both are essentially an outcome of the patriarchal structuring of society. The discrimination and violence faced by women in the private sphere telescopes into the public sphere and each reinforces the other. The dominant worker norm is an ‘able-bodied male worker, belonging to the majority community, who does not belong to Scheduled Caste (SC) or Scheduled Tribe (ST) and whose employment is permanent

Gender Equality at Workplace

145

and secure’. Workplace relations are structured on this premise. Thus women workers, differently abled workers, workers belonging to the minority communities and the SC and ST workers and the temporary, casual or daily wage or non-muster role workers or badlis are all excluded from the dominant worker norm. Unless the working class breaks away from this dominant norm and redefines and reclaims the spaces within the trade unions and within the collective bargaining processes the elimination of gender discrimination in employment and occupation will remain a distant goal. While legislations will definitely aid the process they cannot be the only vehicles of transformation. Changes brought about through collective bargaining will be more rooted as there will be greater acceptability among the workers and the employers since they are mutually agreed upon decisions. Further collective bargaining can accommodate local solutions to suit the local and specific needs faced by different workers in different work situations whereas legislations tend to provide a uniform solution to variedly perceived and experienced problems. Further, given the abject apathy and indifference of the regulatory authorities in India there is no guarantee that having legislations protecting rights of women workers will ever get effectively enforced. Thus viewed in any which way trade unions and collective bargaining appear to be the most desirable route for mainstreaming gender equality in the workplace. But having said that, the biggest challenge before us is—how does one mainstream gender equality within trade unions and in the collective bargaining processes? The first part of the chapter seeks to examine the provisions of the Trade Union Act, 1926, and the Industrial Disputes Act, 1947, and analyse to what extent these enactments advanced the cause of mainstreaming gender equality in workplaces. The enquiry is not limited to the substantive provisions of these Acts but also to their working. The second part of the chapter critically analyses the provisions and working of the Maternity Benefit Act, 1961, and the Equal Remuneration Act, 1976.

Industrial Disputes Act, 1947: A Mechanism with a Potential for Attaining Equality in Workplace The Industrial Disputes Act came to be passed in the year 1947

146

D. Nagasaila

with the object of bringing into existence a machinery for investigation and settlement of industrial disputes between employers and workmen in accordance with the decisions of the ILO. The Act provides for a machinery for collective bargaining. The object of industrial adjudication has, therefore, been to be a countervailing force to counteract the inequalities of bargaining power which is inherent in the employment relationship.6

The Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace. Thus principle of industrial democracy is the bedrock of the Act.7 Section 2 (k) of the Act states: ‘“industrial dispute” means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person’. Thus, the definition of “industrial dispute” is wide enough to encompass issues of workers including women workers from disputes regarding nature of benefits such as maternity benefit, childcare leave, fulfillment of family responsibilities to discrimination and sexual harassment at workplace. An industrial dispute can be raised by a trade union or a group of workers and they can enter into direct negotiations with the employer and arrive at a settlement. A settlement entered into with the employer directly by the workmen is binding on the parties to the settlement and is not binding on workers who are not parties to the settlement.8 If such a settlement is not possible, the demands of the workers can be brought before the conciliation officers appointed by the appropriate governments. The conciliations officers will mediate between the parties. Any settlement arrived at in the course of conciliation in the presence of the conciliation officer is binding on all parties to the industrial dispute as well to all workmen who are employed in the establishment irrespective of the fact whether they were parties to the dispute and the settlement before the conciliation officer.9 In the event of failure of conciliation proceedings and the parties failing to arrive at a settlement, the conciliation officer will submit a failure report and forward it to the appropriate government10 which shall then refer the matter for adjudication.11 When the industrial dispute is referred for adjudication the industrial courts have the power to pass awards on circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical considerations imposed on courts. They have

Gender Equality at Workplace

147

the power to alter the terms of contract or even introduce new terms of contract between the workers and the employer.12 A facet of collective bargaining is that any settlement arrived at between the parties would be treated as incorporated in the contract of service of each employee governed by the settlement…. As far as the incorporation of the results of collective bargaining into the individual contract of employment is concerned, the courts have in effect created a presumption of more or less systematic translation of the results of collective bargaining into individual contracts where these results are in practice operative and effective in controlling the terms on which employment takes place.13

The whole paraphernalia of settlement, conciliation, arbitration (voluntary as well as compulsory) agreements, awards, etc., shows that human labour has value beyond what the wages represent and, therefore, is entitled to corresponding rights in an industry and employers must give them their due.14 Thus the mechanism provided under the Industrial Disputes Act is most suited to alter the rules of employment and ensure that gender sensitive terms are incorporated in the contracts of employment. In negotiations based on collective bargaining the individual workman necessarily recedes to the background. The reins of bargaining on his behalf are handed over to the union representing such workman. The unions espouse the common cause on behalf of all their members. Consequently, settlement arrived at by them with management would bind at least their members and if such settlement is arrived at during conciliation proceedings, it would bind even non-members. Thus, settlements are the live wires under the Act for ensuring industrial peace and prosperity.15

Thus another positive aspect of addressing issues of gender equality through collective bargaining and the adjudication mechanism under the Industrial Disputes Act is removing issues of gender equality from the realm of individual disputes to that of collective disputes. Once it assumes the character of a collective dispute its sphere of influence is widened, thereby increasing its potential to empower women workers and help redefine the power equations between men workers and women workers in more gender friendly and gender sensitive terms. It shifts the emphasis from the individual to the collective and, thereby, moves towards addressing the issues of gender equality at an institutional level and even address the structural inequalities in both the public and private domains.

148

D. Nagasaila

A brief overview of the industry-wise awards of the textile industry16 in the state of Tamil Nadu as well as the awards in the banking industry17 shows that issues pertaining to women at workplace do not find place in the list of demands put forth by the trade unions despite the fact that there is a significant section of women workers/employees in both these sectors. The invisibility of issues of gender equality has resulted in the demands and, therefore, the consequential settlements and awards being confined to issues of wage revision in the banking sector and issues of wage revision, share in gains and work share, dearness allowance, etc., in the textile awards. The trade unions’ demands and the terms of settlements and awards essentially cater to the dominant worker norm of an ‘ablebodied male worker, belonging to the majority community, who does not belong to SC or ST and whose employment is permanent and secure’ and the issues pertaining to women workers, differently abled workers, workers belonging to the minority communities and the SC and ST workers and the temporary, casual or daily wage or non-muster role workers or badlis are not included in the trade union agenda whatsoever. More often than not these issues are not even remotely in the realm of consciousness leave alone consideration of the trade unions and employees associations. The underlying presumption in all these settlements and awards is that workers are a homogenous class with no variations and hence their needs are also all uniform. The second presumption of all trade unions is that needs of workers do not go beyond economic needs despite the fact that the most militant struggles of the working class has been to achieve the eight-hour work regulation which is not purely economic but based on a more fundamental need of the worker to preserve his/her health and also have a social life with his/her family. The Supreme Court of India has also recognised the entitlement of the workers to insist on a holiday on a Sunday and resist the shifting of a holiday to any other day of the week. The Court observed: We are not unmindful of the force of the argument pressed on behalf of the appellant that if a holiday is changed from Sunday to some other week day it would not affect the material gain or financial benefit available to the workmen because the workmen would nonetheless get one day off with pay in a week. Whether the paid day of rest is a Sunday or some other week day would no doubt cause no financial loss to the workmen. But the financial benefit cannot be the sole criterion in considering this question.

Gender Equality at Workplace

149

In this connection it must not be ignored that due to long usage and other factors, Sunday as a holiday may for conceivable reasons have assumed importance for workmen. For certain classes of workmen, Sunday as a weekly rest day may also have special significance. Workmen may, for example, also generally like to have weekly rest day on a Sunday when their school-going children have a holiday so that the entire family may be able to take part in recreational or other social activities. This consideration has its own importance. If that be so, then, notice for effecting such a change would be within the contemplation of Section 9-A. The real object and purpose of enacting Section 9-A seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic cooperation in improving the status and dignity of the industrial employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labour’s subservience to capital.18

So, the greatest challenge faced by women workers and the other marginalised sections is to access this mechanism and make it work for them; to make their issues visible and include it into the collective bargaining agendas of the trade unions. Of course achieving this is no easy challenge. Despite this major challenge, the dispute resolution mechanism under the Act has the potential to address these issues in a much more dynamic and wholesome manner and go well beyond the statutory minimum which is guaranteed under the Maternity Benefit Act, 1961, and the Equal Remuneration Act, 1976.

The Trade Union Act, 1926, as a Tool for Realising the Fundamental Right to Freedom of Association and the Concomitant Right to Collective Bargaining of Women Workers Article 19 (1) (c) of the Constitution of India protects rights regarding freedom to form associations or unions. Freedom of Association and

150

D. Nagasaila

Protection of the Right to Organise Convention, 1948, and Right to Organise and Collective Bargaining Convention, 1949, are two of the ILO Conventions among others which have been identified as fundamental and as the core labour standards. Article 11 of the Freedom of Association and Protection of the Right to Organise Convention provides that states undertake to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise. The ILO Declaration on Fundamental Principles and Rights at Work, adopted in June 1998, has identified freedom of association and the effective recognition of the right to collective bargaining and the elimination of discrimination in respect of employment and occupation as two out of the four main areas.19 The declaration provided that to realise the principle of freedom of association and the right to collective bargaining in practice it requires, among other things: • a legal basis which guarantees that these rights are enforced • an enabling institutional framework, which can be tripartite or between the employers’ and workers’ organisations • the absence of discrimination against individuals who wish to exercise their rights to have their voices heard • acceptance by employers’ and workers’ organisations as partners for solving joint problems and dealing with mutual challenges These four requirements read conjointly with the Freedom of Association and Protection of the Right to Organise Convention, 1948, and Right to Organise and Collective Bargaining Convention, 1949, and as also the fundamental freedom to form associations guaranteed under the fundamental rights chapter of the Indian Constitution holds the key to promote access to collective bargaining mechanisms to women and other marginalised sections of workers. Courts in India have held that international conventions are enforceable when these conventions elucidate and effectuate the fundamental rights under the Constitution. They have also been read as part of domestic law, as long as there is no inconsistency between the convention and domestic law.20 The Supreme Court has observed that the domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them.21 In Madhu

Gender Equality at Workplace

151

Kishwar v. State of Bihar,22 the Supreme Court while upholding the fundamental right of the tribal women to the right to livelihood held that the state was under an obligation to enforce the provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which provided that discrimination against women violated the principles of equality of rights and respect for human dignity. In Anuj Garg v. Hotel Association of India,23 the Supreme Court held that the state was under an obligation to take measures for the realisation of the right to equality by women. The Freedom of Association and Protection of the Right to Organise Convention, 1948, and Right to Organise and Collective Bargaining Convention, 1949, are worded in very general terms. Their main focus is state and employer action and mandate that neither the state nor the employer prevents or penalises a worker from enjoying these rights. The conventions once again suffer from catering to the dominant worker norm and have not taken into consideration the inherent inequalities in society which hinder the effective realisation of the freedom to organise, form associations and participate in collective bargaining by a significant section of workers. However, the Freedom of Association and Protection of the Right to Organise Convention, 1948, and the Right to Organise and Collective Bargaining Convention, 1949, have to be read along with the four key equality Conventions of the ILO. These are the Discrimination (Employment and Occupation) Convention, 1958,24 Equal Remuneration Convention, 1951,25 Workers with Family Responsibilities Convention, 1981,26 and the Maternity Protection Convention, 2000.27 These conventions have been followed up by Resolutions of the International Labour Conference—the highest level policymaking organ of the ILO—in 1975, 1985, 1991 and the June 2004 Resolution on Gender Equality, Pay Equity and Maternity Protection.28

Promoting Gender Equality in Trade Unions As per the report of the ILO–International Confederation of Free Trade Unions (ICFTU) on “Role of Trade Unions in Promoting Gender

152

D. Nagasaila

Equality”,29 with the increase of participation of women in the labour force ‘the need for trade unions to organise women and represent and protect their interest is stronger than ever’ as women workers remain ‘largely marginalised and highly vulnerable to discrimination and exploitation’. The report records that ‘the trade union movement is conscious of the critical need to recruit and retain women members, give them a voice in decision-making, promote gender equality and address the problems of vulnerable women workers particularly through the collective bargaining process’. The regional-wise survey of trade union membership by ILO–ICFTU reveals that women are not only under-represented in the total membership of the trade unions, there is also under-representation in the decisionmaking positions in trade unions. The survey has identified 12 important barriers to female membership in trade unions. 1. Lack of awareness among women as to how trade unions can help them. 2. Perception of unions as mere strike agents and the negative media portrayal of trade unions. 3. Fear of reprisal from employers. 4. Women are engaged in atypical forms of work and, hence, are difficult to reach and organise. 5. Burden of family responsibilities does not give them the time to join unions. 6. Women are often faced with objections from spouses. 7. Women workers are subject to religious or cultural constraints. 8. The internal structures and strategies of the unions themselves are not sensitive to the specific needs and difficulties of women workers. 9. The male-dominated culture or activities of unions. 10. Hostile reactions from male members discourage women from joining the trade unions. 11. High membership dues are also a barrier. 12. Women are not involved in union activities. The report has identified measures adopted by various trade union in various regions to promote gender equality within union structures.

Gender Equality at Workplace

153

1. Recruiting women as members by not merely targeting women membership but more importantly by recognising the particular needs of women and the right of women to be different from men. In other words, breaking away from the “dominant worker norm”. 2. Encouraging women’s participation in trade union events and in leadership roles. 3. Improving the public image of trade unions as a champion of equality by supporting health care, childcare, equal pay, etc. 4. Making women visible in unions by enforcing a policy of 30 per cent representation of women in every major union body and delegation including in negotiating teams. 5. Soliciting the views of women workers and understanding their concerns and needs and conducting research on workers’ needs including non-unionised members thereby inspiring many trade unions to better respond to the needs of the non-unionised women workers. 6. Including gender concerns such as—equal pay, sexual harassment policy, etc., in collective agreements. 7. Providing services such as staff cooperatives to buy household goods in bulk to enable women members to obtain them at lower prices; laundry services for working women in their neighbourhood so as to alleviate their heavy workload at work and home and also to create employment for other women in the neighbourhood; childcare facilities near the main markets for women vendors to facilitate breastfeeding, while allowing them to work; a women’s theatre group to create awareness as many of the women workers are illiterate, etc. 8. Focusing not only on professional problems of women such as equal pay, equal opportunities but also addressing social problems linked to family life. 9. Targeted programmes for women’s education, health camps, scholarship fund to help children of retrenched workers to continue their education. 10. Creating internal structures within the trade unions to promote equality such as equality committees or departments.

154

D. Nagasaila

11. Increasing the representation of women in leadership positions by: (a) Amending union by-laws to provide for women’s representation. (b) Automatic representation of the women’s chair at the national level bodies of the trade union thereby ensuring that women participate in the decision-making at the highest level. (c) Mandating that the Chair of the women’s committee is automatically part of the negotiating teams. (d) Proportional representation of women at all levels and in the absence of such representation ensure elaborate corrective mechanism to reach this goal. (e) Conducting union meetings in a more informal way to encourage wider participation of women and taking steps to overcome barriers to women’s participation by providing for childcare at meetings, holding meetings at times convenient for women, etc. (f ) Separating financial allocation for women’s committees to promote women’s participation. (g) Measures to promote solidarity between male and female members by having equality training targeted at men, women and mixed groups. Organise events to promote gender solidarity and courses on coexistence between men and women and joint campaigns on issues of common concern. (h) Promoting male participation in “women’s events” such as 8th March activities and ensure that all communications are also addressed to men. Mainstreaming of women’s participation in trade union activities is the first step to mainstreaming equality in the workplace. It may be worth the while for women’s movements to also work with non-state players to advance the equality agenda as state interventions through legislation by itself may not be adequate to address the issue of mainstreaming gender equality at workplace.

Gender Equality at Workplace

155

Promoting Gender Equality in Collective Bargaining Agendas The logical progress from promoting gender equality in trade unions is promoting gender equality through the collective bargaining process. While there appears to be no empirical studies or research on the equality content of collective bargaining settlements, the general perception is that equality-related issues do not find place in the terms of settlements between the trade unions and employers because both the parties continue to perceive them as non-issues as they are not the felt needs of the “dominant worker norm”. But as argued in the earlier section on the mechanisms for dispute resolution under the Industrial Disputes Act, the unions and the collective bargaining and adjudication process are well suited for advancing the “equality in workplace” agenda. As the topics later discussed in this chapter reveal, the legislative intervention for promoting equality is both substantially and procedurally inadequate. Through the collective bargaining process it is possible to speed up the equality goal by incorporating equality-related issues into the terms of settlement thereby creating binding contracts. Further taking into consideration the abysmal track record of enforcement of labour welfare legislations in India, the collective bargaining process will free the dependency of women on state regulators and will empower them to directly negotiate the equality terms with the employer and ensure its enforcement. Further, it has been my observation that excessive dependency on legislations and seeking redressal through courts weakens the collective bargaining capacity and strength of the trade unions. The process of collective bargaining is as important as the end result itself. Firstly, the process of discussing and debating issues within the trade union and among various sections of workers, the crystallisation of the demands and the mechanisms to implement it, the putting forth of these demands to the employer, negotiating the terms of settlement with the employer and, thereafter, arriving at a negotiated settlement to which both the workers and the employers own up to is an empowering process in itself. Thus when women workers are involved and effectively participate in the process it has the potential to combine several ends. The demands on

156

D. Nagasaila

equality itself can become a rallying point for all the women workers and it will facilitate the organising of women workers around the agenda of the equality demands. The process of taking forward the discussion and concretising the demands can also be used to sensitise the male workers on gender and equality issues. Secondly, the terms of negotiations are set by the parties and are not circumscribed or capped by the limitations of legislations as legislations by their very nature are very minimalist in their approach. Thus while the law provides for only 12 weeks of maternity leave pay and assures women workers of a minimum protection which cannot be taken away, it is open to the trade unions to negotiate and settle for more. Thirdly, it allows for women workers to innovate and come up with solutions outside the existing legislations and explore areas not covered by any legislation—for instance, the workers can negotiate for parental leave, flexible working hours, recruitment of more women workers, creating promotional avenues for women workers, having gender audits within the establishments, have assessment committees to evaluate jobs of equal value, etc. The scope is wide and can include just about any work-related demands which make the workplace more women friendly and gender sensitive. Fourthly, in a collective bargaining process the scene of action is the workers’ own work site and as stake holders they are also the players and thereby in control of the processes and the outcome. Finally, if the trade unions depend entirely on legislations and courts for protection and resolution of their rights invariably the scene of action shift from their worksite to the courts and the players are no longer the workers but lawyers and the worker-stakeholders have no control over the processes or its outcome. Thus viewed from any angle promoting gender equality through collective bargaining is advantageous to women workers and to the trade union movement as a whole as it will strengthen worker unity and expand the trade union base by increased participation of women workers which will in turn enhance the collective bargaining power of the trade unions as a whole on all aspects including equality-related issues. Apart from the issue of inclusion of women in trade unions and in the collective bargaining process, another trend which is a matter of concern is that even in a well-organised, formal sector, the entry of women in large numbers in to the workforce of the sector does not necessarily mean that the women workers are able to immediately enjoy all the advantages

Gender Equality at Workplace

157

hitherto enjoyed by the male counter parts. On the contrary, the entry of women into the labour force has the effect of altering the character of the labour force from organised to unorganised. A classic example is the recent experience in the textile industry in Tamil Nadu. The textile industry is one of oldest organised sector with nearly a hundred-year history of unionisation and collective bargaining. The Madras Labour Union of the Buckingham and Carnatic Mills in Chennai formed in 1918 is one of the first organised unions in India where the workers went on a strike for a period of six months demanding better employment conditions. The textile industry in Tamil Nadu has a long history of industry-wise settlements and awards for wage revisions and is easily one of the best organised sectors. The earliest 12 (3) settlement between 41 textile mills and the unions is dated 25 September 1956. The earliest industry-wise award is in Industrial Dispute No. 70 of 1958 dated 24 February 1959.The first Central Textile Wage Board is dated 2 March 1960. Ever since, there have been periodic wage boards, followed thereafter by periodic industrywise settlements. While women were always a part of the workforce, the last few years has witnessed a trend of increase in women workers in the textile industries. Most of the permanent male employees opted for voluntary retirement in large numbers and the sector faced a severe shortage of workers. Most of the women engaged are in the age group of 16 to 20. The textile units hired contractors to lure young girls to join the mill as apprentices or trainees. They were promised a lump sum amount of Rs 30,000 at the end of completion of 36 months of “training”. The girls were told that this lump sum amount would help them to meet the marriage expenses. The scheme was called Sumangali Scheme. Pamphlets to this effect were printed and widely circulated in rural areas. During the so-called training period the girls were offered a daily stipend of Rs 25 to Rs 41 per day along with food and accommodation. Some of the mills deducted Rs 10 per day towards food. If the women failed to complete the 36-month “training” or “apprenticeship” they would forego the lump sum payment. The “apprentices” were given production targets and some of the mills paid the lump sum amount only if the production targets were met. During this entire period they were housed in hostels (which were no more than glorified camps) located inside the mill premises. Interestingly, in a letter dated 21 November 2006, addressed to the Tamil Nadu Labour Welfare Minister, the South India Small Spinners Association

158

D. Nagasaila

(SISSPA) in a fervent appeal for assistance from the government stated that the small spinners cannot survive in the market unless they achieved 98 per cent production capacity. The association went on to describe the plight of the mills stating that local labour was hard to find and even if they got local labour it was impossible to ensure that they could work continuously for all the 26 days in a month. They had no option but to engage outside labour. However, there was no assurance that the male workers from outside the area would stay in the mill and work continuously. Under these circumstances, the only option was to engage female labour who would reside within the factory premises. This letter was a clear piece of evidence to establish that the so-called apprentices were actually being employed full-time and were being utilised to achieve full production targets. In some of the mills, the entire work force consisted of only “apprentices”! However, the female employees were too young and had no knowledge of their rights. Further, since they were made to work for 14 to 16 hours a day at the end of three years of “training” they were a spent force and invariably left the job. Because of the constant turnover of workers it was also not possible to organise them. Since they were housed within the factory premises, no outsider could even interact or meet them. The regular trade unions were helpless as the strength of textile workers unions was considerably weakened in the last decade because many of the local unions were no longer a part of the state-level federation and, hence, were entering into unit-wise settlements thereby breaking the industry-wise settlements which prevailed in the sector for several decades. This weakened the collective bargaining capacity of the unions. Thus the unions were in no position to take up the issue of the Sumangali Scheme workers. Finally, when a Public Interest Litigation (PIL) was filed in the Madras High Court, the Government of Tamil Nadu came forward to notify minimum wages for the apprentices. The minimum wages notification came to be challenged by the mill owners contending that the Minimum Wages Act would not apply to apprentices. Some of the trade unions intervened in the matter but the affected women workers themselves could not come before the court as the unions did not have access to them and, hence, they could not be organised. The Madras High Court finally upheld the notification.30 While the unions have the satisfaction of winning the legal battle there is no guarantee that the notification will be implemented in the absence of effective unionising among the

Gender Equality at Workplace

159

women workers. Thus the feminisation of the workforce led to the textile sector transforming from an organised one to an unorganised one and one is once again faced with sweatshops.

The Maternity Benefit Act, 1961 Reproductive functions and childcare responsibilities and family responsibilities continue to be the greatest barriers to the effective realisation of equality in workplace by women. In this context, the Maternity Benefit Act is an important legislation to protect women against loss of jobs and loss of pay and protection of health of women workers during pregnancy and immediately thereafter. The Maternity Protection Convention, 2000, recognises that the need to provide protection for pregnancy to women workers is the shared responsibility of government and society. The Objects and Reasons of the Act31 provide that the Act entitles a woman to receive maternity benefit for a maximum period of 12 weeks, including six weeks following the day of her delivery. The qualifying condition is employment for 240 days in the 12 months immediately preceding the expected date of delivery, but there is no such restriction as to entitlement in the case of an immigrant woman who is pregnant when she first arrives in Assam. The Act provides the following protection to women workers. The Act prohibits employment of or work by a woman during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.32 A woman employee has a right to payment of maternity benefit for a maximum period of 12 weeks.33 Once she rejoins duty after availing the maternity leave she is entitled to two breaks of 15 minutes’ duration for nursing the child until the child attains the age of 15 months.34 It provides that every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of Rs 250, if no prenatal confinement or postnatal care is provided by the employer free of charge.35 Section 9 of the Act contemplates leave for miscarriage or medical termination of pregnancy. Section 9-A contemplates leave for tubectomy and Section 10 provides for leave for illness arising out of pregnancy, delivery, premature birth of a child or miscarriage. Section 12 provides a significant protection wherein

160

D. Nagasaila

[w]hen a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence or to vary to her disadvantage any of the conditions of her service. The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in Section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus.

This section, thus, prohibits dismissal of a woman employee during or on account of her absence on maternity leave. It ensures that the conditions of her service would not be varied to her disadvantage during her absence. An appeal remedy is provided for the woman in the event of denial of any of the benefits under the Act. Contravention of the provisions of the Act has been made an offence under Section 21 of the Act. Section 27 provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service. Subsection (2) of the section provides that it will, however, be open to a woman to enter into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those she would be entitled to under this Act. Apart from the Maternity Benefit Act, 1961, Section 50 of the Employees’ State Insurance Act (ESI Act), 1948, provides that the central government will prescribe the qualification, rates and period for which maternity benefit is payable to an insured woman. Section 5-A of the Maternity Benefit Act provides that if the Employees’ State Insurance Act, 1948, is applied or becomes applicable to the establishment where a woman is employed, such woman shall continue to be entitled to receive the maternity benefits under the Maternity Benefit Act so long as she does not become qualified to claim maternity benefits under Section 50 of the ESI Act. In Punjab National Bank v. Astamija Dash,36 a woman employee was appointed as a management trainee in Punjab National Bank. She was required to pass some departmental exams within the two-year probation period. She was given several chances to clear the exams. She could not avail all the chances and could not succeed when she did appear because

Gender Equality at Workplace

161

she suffered two miscarriages during this period. The Bank had its own service regulations which provided for maternity benefit for a period of six months and the Maternity Benefit Act itself was not applicable to it. In terms of the provisions of the Act, a woman is prohibited from working in an establishment during the period of six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy. It also provided for six-week leave with wages at the rate of maternity benefit after a miscarriage. There was no equivalent provision in the regulations of the Bank. However, the Supreme Court held that the action of the Bank must be reasonable and in consonance with the legislative policy as reflected in the provisions of the Maternity Benefit Act. A statutory regulation is subject to the provisions of a parliamentary legislation. The regulations framed by the board of directors of the bank fail to provide for grant of maternity leave and other benefits to which a woman employee would be entitled to in terms of the Maternity Benefit Act, 1961. A subordinate legislation, as is well-known, must be made in conformity with the parliamentary enactment. The Court observed, A woman who had undergone miscarriages, in our opinion, was entitled to a different treatment. Article 14 indisputably is a positive concept. Applicability of the doctrine of equality as a positive concept, therefore, should have been the premise that as a woman having regard to the state of affairs in which the writ petitioner was placed, she was entitled to obtain a different treatment from the employer. Article 14 does not apply in a vacuum. Whereas persons absolutely similarly situated, should be treated equally, equal treatment to the persons dissimilarly situated would also attract the wrath of Article 14.

In Municipal Corporation of Delhi v. Female Workers (Muster Roll),37 female workers (muster roll), engaged by the Municipal Corporation of Delhi (MCD) raised a demand for grant of maternity leave which was made available only to regular female workers but was denied to them on the ground that their services were not regularised and, therefore, they were not entitled to any maternity leave. The female workers who were engaged by the Corporation on muster roll worked at the site of construction and repairing of roads. Their services were also utilised for digging of trenches. Since they were engaged on daily wages, they worked even in an advanced stage of pregnancy and also soon after delivery, unmindful

162

D. Nagasaila

of detriment to their health or to the health of the newborn. The Supreme Court held that the Preamble to the Constitution promised its citizens social and economic justice. Taking note of the fundamental Right to Equality and Right against Discrimination guaranteed under Articles, 14, 15 and 16 of the Constitution as well as the Directive Principles of State Policy under Articles 39, 42 and 43 as well as the various provisions of the Act, the Court held that there was no justification for denying the benefit of the Act to casual workers or workers employed on daily-wage basis. The Court made one important statement of far-reaching consequences. It held that the principles contained in Article 11 of CEDAW have to be read into the contract of service of the women employees and ‘so read these employees immediately become entitled to all the benefits conceived under the Maternity Benefit Act, 1961’. In B. Shah v. Presiding Officer, Labour Court,38 the Supreme Court was called upon to decide whether in the computation of the maternity benefit, Sundays and holidays should also be included. The Court held that the Act is a beneficial legislation and, hence, has to be interpreted in a manner which will fulfil the object of enabling the ‘woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output’. The Court held that computation of maternity benefit has to be made for all the days including Sundays and rest days which may be wage less holidays comprised in the actual period of absence of the woman extending up to six weeks preceding and including the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery. While the Maternity Benefit Act does offer some protection to women workers against arbitrary dismissal and confers certain benefits of leave and payment of wages, the Act is still largely set in the patriarchal mould and has failed to incorporate the changing notions that childcare and family responsibilities are the shared responsibilities between men and women equally. The Preamble to the CEDAW draws attention to the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole.

Gender Equality at Workplace

163

It also notes that ‘a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women’. Article 5 of the CEDAW mandates the state parties to promote ‘understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases’. The Maternity Protection Convention, 2000, as well as the Maternity Benefit Act, 1961, fall far short of this goal set by the CEDAW. The Maternity Benefit Act has a minimalist agenda of protection of women during pregnancy as well as immediately after childbirth. It is more with the biological fact of pregnancy and childbirth rather than the social aspects of childbearing and child rearing. The approach to maternity benefit is rather clinical and mechanical and has no understanding of the real needs of a woman either during pregnancy or immediately after child birth. It ignores the needs of an infant child and reduces it to mere nursing breaks akin to periodic refuelling of vehicles. The rationale for fixing maternity benefit for a maximum period of 12 weeks—six weeks before delivery and six weeks after delivery—appears to be on the presumption that this period is sufficient for the woman to physically recover from the biological act of delivering a child. Article 24 of Convention on the Rights of the Child mandates that states parties recognise the right of the child to the enjoyment of the highest attainable standard of health and shall pursue full implementation of this right and, in particular, shall take appropriate measures to ensure appropriate prenatal and postnatal health care for mothers and to ensure that all segments of society, in particular parents and children, are informed and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, etc. Thus breastfeeding is recognised as a means to the realisation of the right to health of the child. The Maternity Protection Convention, 2000, as well as the Maternity Benefit Act, 1961, have completely disregarded the mandate of Convention on Child Rights though the two are intrinsically linked and cannot be treated as separate watertight compartments. Two 15-minute nursing breaks is a farce and a cruel joke on both the women and the children as it is not workable. Firstly, it is common knowledge that no workplace is child friendly and is really no place for an infant. The conditions under which workers commute to the workplace

164

D. Nagasaila

are precariously dangerous even for adults and there is no way that an infant can be carried to the place of work. Distances between places of work and residence are prohibitive, sometimes, extending to several hours. Hence, it is not practical for mothers to go home to breastfeed the baby and get back to work. Further, one is yet to see a baby who suckles with such mathematical precision and completes feeding in 15 minutes! Thus the entitlement to nursing breaks remains only an empty legislative assurance which is unrealistic and unworkable. It is interesting to note that the central government employees under the Sixth Pay Commission have negotiated better terms of contract in respect to maternity leave and benefits.39 Maternity leave has been enhanced from 135 days to 180 days. The leave admissible in continuation of maternity leave was increased to two years. In addition, women employees having minor children may be granted childcare leave for a maximum period of two years for taking care of up to two children40 and during such period of leave they are entitled to leave salary equal to pay drawn immediately preceding the leave. The leave can be extended for the third year. There is no reason why industrial workers cannot bargain for similar enhanced benefits through the collective bargaining process. It is high time that the labour legislations keep pace with the emerging recognition for parental leave where even fathers can avail leave for care of children and for fulfilling other family responsibilities such as care of elderly, sick, etc. This will also entitle parents of adopted children to claim similar benefits. Further, when both men and women become equally entitled to parental leaves then the possibility of discrimination against women on grounds that they will avail maternity leave will be reduced. Further, it will create awareness and bring about a greater consciousness on the responsibility of men to share in childcare responsibilities.

Equal Remuneration Act, 1976 The Equal Remuneration Act, 1976, is an Act to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto.41

Gender Equality at Workplace

165

The Act casts a duty on every employer to pay equal remuneration to men and women workers for same work or work of a similar nature,42 prohibits discrimination while making recruitment for the same work or work of a similar nature or in any condition of service subsequent to recruitment such as promotions, training or transfer, against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.43 The term “same work or work of a similar nature” means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.44 The provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act or in any instrument having effect under any law for the time being in force.45 Having provided for such entitlements, the Act confers power on the government to make a declaration to the effect, that any discrimination made by an employer with regard to differential remuneration between men and women shall not be deemed to be a contravention of any provision of the Act, if the government on a consideration of all the circumstances of the case is satisfied that the differences in regard to the remuneration or a particular species of remuneration of men and women workers in any establishment or employment is based on a factor other than sex.46 Nergesh Meerza v. Air India47 was the earliest of cases where women air hostesses relied upon the provisions of the Equal Remuneration Act to claim parity with flight pursers—their male counterparts. The Court held that since the two posts had different modes of recruitment, promotional avenues, salaries, allowances, etc., the air hostesses formed an absolutely separate category from that of the assistant flight pursers and, hence, the discrimination was not on account of sex alone but on account of the different service conditions. Further, immediately after air transport industry was notified under the Act, the government issued a declaration, dated 15 June 1979, that the

166

D. Nagasaila

Central Government having considered all the circumstances relating to and terms and conditions of employment of air hostesses and flight stewards, are satisfied that the difference in regard to pay, etc., of these categories of employees are based on different conditions of service and not on the difference of sex. The Central Government, therefore, declares that any act of the employer attributable to such differences shall not be declared to be in contravention of any of the provisions of the Act.

The Court held that ‘the declaration is presumptive proof of the fact that in the matter of allowances, conditions of service and other types of remuneration, no discrimination has been made on the ground of sex only. The declaration by the central government, therefore, completely concludes the matter’. In Air India Cabin Crew Association v. Yeshaswinee Merchant,48 the air hostesses once again attempted to re-agitate the issue of differential retirement age for air hostesses and flight pursers. The Supreme Court held that the matter stood concluded in Nergesh Meerza case and it was not open to them to re-agitate it. The Court observed that the terms and conditions of their service were fixed through negotiations and resultant agreements, settlement and awards made from time to time in the course of industrial adjudication. Where terms and conditions are fixed through collective bargaining as a comprehensive package deal in the course of industrial adjudication and terms of service and retirement age are fixed under agreements, settlements or awards, the same cannot be termed as unfavourable treatment meted out to the women workers only on basis of their sex and one or the other alone tinkered so as to retain the beneficial terms dehors other offered as part of a package deal. The twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. The Constitution does not prohibit the employer to consider sex in making the employment decisions where this is done pursuant to a properly or legally chartered affirmative action plan.

This decision was given despite the specific provision in the Act that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act or in any instrument having effect under any law for the time being in force.

Gender Equality at Workplace

167

The Court instead relied on Section 15 of the Act which permits special treatment or affirmative action in favour of women. Three decades after the passing of the Act going by the number of reported judgements,49 there have been very few women workers who were able to access the mechanism under this law. The Act is wholly inadequate and the machinery too weak to remedy the issues relating to discrimination or unequal treatment in workplaces. The Act is not equipped to address the structural inequalities which are present in society wherein the female-dominated jobs are as a rule paid less. The crucial issue in the implementation of the Act is the question as to who will decide what is “same work or work of a similar nature”. The Act defines the term as work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment

But there is no system in place to assess the nature of work. It would be almost impossible for all existing discriminating structures to be corrected by individual women workers taking up job after job for such an assessment. As stated earlier, Section 16 of the Act provides that the government can issue a notification declaring that in a particular industry discrimination between men and women workers is based on different conditions of service and not on the difference of sex. Once such a declaration is given then a woman employee cannot challenge such a discriminatory practice because a legal fiction of equality is created! This provision is essentially to come to the aid of employers with discriminatory practices. On the other hand when it comes to individual women workers, the burden is on the woman worker to establish that there is in fact discrimination though the work is same or similar in nature. If the Legislature were serious in giving effect to the Act it ought to have enacted that when a government declares that certain sets of jobs are similar or work of equal value then such declaration is ‘presumptive proof’ of equal work and is binding on the employer. It could also follow that from the date of such declaration the women workers would be entitled to the higher remuneration and other applicable terms of service given to the male counterparts. Such a provision will go a long way in making the Act

168

D. Nagasaila

actually work for the women workers and would further the object of the Act. Ironically, the concept of “equal pay for equal work” was used by women employees only in a couple of cases.50 Thereafter, the principle was used largely by male employees to claim parity in pay with their counterparts in other departments or institutions.

Conclusion In this chapter, the attempt has been to bring trade unions and collective bargaining to the centre stage of the struggle of women for equality at workplace. In this era of globalisation where there is an increasing feminisation of poverty and casualisation of labour, the trade union movement is going through an all time low. The absence of a class consciousness beyond the immediate monetary gains among the organised working class is another area of concern. In this context, there appears to be no easy alternative to systematic organising of the women workers into trade unions and to enhance their collective bargaining capacity. The equality agenda has the potential to bring fresh incentive to sections of workers who have hitherto been excluded from trade unions and, therefore, form the collective bargaining process. It could probably help forge new workingclass alliances between the various excluded categories and cumulatively strengthen the class struggle itself.

List of Case Citations Air India Cabin Crew Association. V. Yeshaswinee Merchant (2003) 6 SCC 277. Anuj Garg v. Hotel Association of India (2008) 3 SCC 1. B. Shah v. Presiding Officer, Labour Court (1977) 4 SCC 384. Bengal Chemical & Pharmaceutical Works Ltd. V. Employees, 1959 Supp (2) SCR 136. Christian Medical College Hospital Employees’ Union v. C.M.C. Vellore Assn., (1987) 4 SCC 691. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228. Mackinnon Mackenzie & Co. Ltd. V. Audrey D’Costa, (1987) 2 SCC 469. Madhu Kishwar v. State of Bihar (1996) 5 SCC 125: AIR 1996 SC 1864. Madras Gymkhana Club Employees’ Union v. Gymkhana Club, (1968) 1 SCR 742. Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000) 3 SCC 224.

Gender Equality at Workplace

169

Nergesh Meerza v. Air India (1981) 4 SCC 335. P. Virudhachalam v. Lotus Mills, (1998) 1 SCC 650. Punjab National Bank v. Astamija Dash (2008) 14 SCC 370. R.D. Upadhyay v. State of Andhra Pradesh, (2007) 15 SCC 337. Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd., (1984) 3 SCC 369. Tata Iron & Steel Co. Ltd. V. Workmen, (1972) 2 SCC 383. The Southern India Mills v. State of Tamil Nadu (Order dated 11.02.2009 in Writ Appeal Nos. 957, 992 and 993 of 2009). Vishaka v. State of Rajasthan (1997) 6 SCC 241.

List of Abbreviations in Case Citations SCC SCR

Supreme Court Cases Supreme Court Reports

Notes 1.

2.

Legislations on violence against women—Immoral Traffic (Prevention) Act, 1956; Dowry Prohibition Act, 1961; Indecent Representation of Women (Prohibition) Act, 1986; Commission of Sati (Prevention) Act, 1987; National Commission for Women Act, 1990; Protection of Women from Domestic Violence Act, 2005; amendments to the Indian Penal Code (IPC) inserting new offences of custodial rape, (Sections 376-A, 376-B, 376-C and 376-D, Ins. by Act 43 of 1983), dowry death (Section 304-B, Ins. by Act 43 of 1986, Section. Husband or relative of husband of a woman subjecting her to cruelty (498-A, Ins. by Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983); Amendments to Evidence Act introducing presumption as to abetment of suicide by a married woman and presumption as to dowry death (Section 113-A and 113 B Ins. by Act 46 of 1983 and Act 43 of 1986 respectively); the Protection of Women from Domestic Violence Act, 2005. Legislations relating to property and marriage—Married Women’s Property Act, 1874; Married Women’s Property (Extension) Act, 1959; Hindu Succession Act, 1956; Hindu Succession (Amendment) Act, 2005; Indian Succession Act, 1925; Indian Succession (Amendment) Act, 2002. Legislations relating to abortion—Medical Termination of Pregnancy Act, 1971; Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994; Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2001; Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002. Section 22 (2) of Factories Act, 1948, prohibits the employment of woman or young person to clean, lubricate or adjust any part of a prime mover or of any transmission machinery while in motion; Section 27 prohibits employment of women and children near cotton openers; Section 66 prohibits employment of women in a factory except between the hours of 6 a.m. and 7 p.m. Section 66 (i) (b) has been struck down by the Madras High Court as unconstitutional in R.Vasantha v. Union of India, 2001 (2) LLJ 843.

170 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

D. Nagasaila Sections 42 and 48 of the Factories Act, 1948. (1997) 6 SCC 241: 1997 SCC (Cri) 932: AIR 1997 SC 3011. ILO. 1998. Declaration on Fundamental Principles and Rights at Work, adopted at its 86th Session, Geneva, 18 June. Christian Medical College Hospital Employees’ Union v. C.M.C. Vellore Assn., (1987) 4 SCC 691. P.Virudhachalam v. Lotus Mills, (1998) 1 SCC 650. Section18 (1) of the Industrial Disputes Act, 1947. Section 18 (3) of the Industrial Disputes Act, 1947 read with s. 12(3) of the Act. Section 12 of the Industrial Disputes Act, 1947. Section 10 of the Industrial Disputes Act, 1947. Bengal Chemical and Pharmaceutical Works Ltd v. Employees, 1959 Supp (2) SCR 136. Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd, (1984) 3 SCC 369. Madras Gymkhana Club Employees’ Union v. Gymkhana Club, (1968) 1 SCR 742. P. Virudhachalam v. Lotus Mills, (1998) 1 SCC 650. The earliest 12(3) settlement between 41 textile mills and the unions is dated 25 September 1956. The earliest industry-wise award is in Industrial Dispute No. 70 of 1958 dated 24 February 1959.The first central Textile Wage board is dated 02 March 1960. Sastry Award (1953) and Desai Award (1962) followed by several bipartite settlements for wage revisions and pensions. Tata Iron and Steel Co. Ltd. v. Workmen, (1972) 2 SCC 383. The elimination of all forms of forced or compulsory labour and the effective abolition of child labour are the other two. R.D. Upadhyay v. State of Andhra Pradesh, (2007) 15 SCC 337. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228. (1996) 5 SCC 125: AIR 1996 SC 1864. (2008) 3 SCC 1. ILO Convention No. 111. ILO Convention No. 100. ILO Convention No. 156. ILO Convention No. 183. http://www.ilo.org/public/english/gender.htm The full report can be accessed at actrav.itcilo.org/library/english/06_Gender/resource/ fin_rep.pdf The Southern India Mills v. State of Tamil Nadu (order dated 11 February 2009 in Writ Appeal Nos. 957, 992 and 993 of 2009). Government of India Gazette, Part II, Section 2, dated 6 December 1960. Section 4 of the Maternity Benefit Act, 1961. Section 5 of the Maternity Benefit Act, 1961. Section 11 of the Maternity Benefit Act, 1961 read with Rule 6 of the Tamil Nadu Maternity Benefit Rules. Section 8 of the Maternity Benefit Act, 1961. (2008) 14 SCC 370. (2000) 3 SCC 224. (1977) 4 SCC 384. Rule 43 of the Central Civil Services (Leave) Rules, 1972.

Gender Equality at Workplace

171

40. In N. Mohammed Mohideen and Sahan v. Deputy Commissioner of Labour, the Madras High Court held that there was no provision under the Maternity Benefit Act fixing any ceiling on the number of deliveries by a female worker and the court relying on Article 42 of the Constitution held that every female worker covered by the Act is entitled to claim maternity benefits without any ceiling on the number of deliveries made by them. 41. Preamble to the Equal Remuneration Act, 1976. 42. Section 4 Equal Remuneration Act, 1976. 43. Section 5 Equal Remuneration Act, 1976. 44. Section 2 (h) Equal Remuneration Act, 1976. 45. Section 3 of the Equal Remuneration Act, 1976. 46. Section 16 of the Equal Remuneration Act, 1976. 47. (1981) 4 SCC 335: 1981 SCC (L&S) 599: AIR 1981 SC 1829: (1981) 2 LLJ 314: 1981 Lab IC 1313: (1981) 2 LLN 572. 48. (2003) 6 SCC 277. 49. The maximum are reported, not surprisingly, from the state of Kerala. 50. Mackinnon Mackenzie & Co. Ltd v. Audrey D’Costa, (1987) 2 SCC 469: 1987 SCC (L&S) 100: AIR 1987 SC 1281: (1987) 1 LLJ 536: 1987 Lab IC 961: (1987) 2 LLN 10 is the only reported judgement of the Supreme Court apart from Nergesh Meerza and Air India Cabin Crew case where the Act was invoked by women employees to claim parity with their male counterparts.

7

Judicial Meanderings in Patriarchal Thickets: Litigating Sex Discrimination in India* Kalpana Kannabiran

The so-called “objective” interpretation is as much “subjective” in this sense as “constructive” interpretation. The mind that interprets is not a tabula rasa; neither is it just a calculating machine or an electronic brain. The interpreter is a thinking being and as such he will have to interpret with a mind having a system of beliefs and from a standpoint which he happens to occupy at the time of the interpretive activity. (Chattopadhyaya 1978: xi–xii)

This essay will attempt to present judicial meanderings on the issue of sex discrimination over the last six decades through an examination of reported cases from the high courts and the Supreme Court, with the limited aim of unpacking the deliberations on non-discrimination in courts in India. These cases by themselves do not exhaust the field and broad concerns of non-discrimination, but point to one site where there have been protracted deliberations. In reading case law, however, rather than focus on the ratio (or the final decision), which is the way in which legal reasoning on non-discrimination would be pieced together, this is a sociological reading that looks at the ethnographic detail that texts present, the process and points of deliberation and contestation among petitioners, respondents (most often the state) and courts and the multiple implications of jurisprudential resolution for gender-based discrimination. The idea is to follow the plural threads of reasoning with respect to women’s * This essay was originally published in Economic and Political Weekly, Review of Women’s Studies, XLIV(44): 88–98, 31 October–6 November 2009.

Judicial Meanderings in Patriarchal Thickets

173

status, position, vulnerabilities and rights and understand their ideological underpinnings, not merely trace the march of ratios towards the judicial achievement of emancipation for women. The first thread in legal reasoning on non-discrimination that we will follow is expressed through an oft-repeated refrain in Article 15 jurisprudence on sex discrimination, which is that a particular claim is not on grounds of sex alone. By this argument, when sex combines with property,1 social norms,2 “different conditions of service”3 and the like, the very fact that it is expressed in combination removes it from the purview of Article 15 (1). This exemplifies the disaggregative norm of interpretation that bases itself on a reductionist reading of the constitutional fragment “on grounds only of sex, caste, language, place of birth or any of them”.4 The second thread in constitutional reasoning consists in the understatement of discrimination as classification or differentiation. This works sometimes to the immediate advantage of women, sometimes not, but the interpretive reduction (whatever the immediate outcome) has philosophical implications in terms of our understanding of discrimination. The third thread explores the scope and purpose of Article 15 (3)—the creation of special provisions for women and children. This provision has been tossed around in courts in ways that are very telling of the orientation of the judicial mind as to the location of women in the public domain. To anticipate my argument, on the surface, interpretation is of course only a question of law. However, a closer and more careful reading will demonstrate that both fact and law intermesh with notional elements that are embedded in a patriarchal system, which puts in place an ideological apparatus for the juridical understanding of sex-based discrimination.5

Differentiation, Classification and Discrimination How does one draw a line between differentiation, classification and discrimination? The first question that came up for resolution before the courts had two parts—both of which continued to shadow the enunciation of non-discrimination on grounds of sex for several decades, echoes of which are audible even now. Order 25 of the Civil Procedure Code (CPC) lays down the procedure to be followed by courts in the case of

174

Kalpana Kannabiran

money suits. Under sub Rule 3 of Rule 1, the court has the power to demand monetary security from the plaintiff, if the plaintiff happens to be a woman and does not possess sufficient immovable property in India. On the other hand, the rule requires male plaintiffs to give monetary security only if they are resident outside India and do not have sufficient immovable property in India.6 Was this provision an infringement of the right against discrimination, Article 15(1)? Was it void under Article 13(1)? Or, could it be argued that it was covered by Special Provisions under Article 15 (3)? In Mahadeb Jiew, the court did not hold that there was no discrimination. But it said that since proprietary considerations were superadded to sex, it did not constitute discrimination on grounds of sex alone, observing that “possession of sufficient immovable property in India is not a consideration bearing on sex at all”.7 The next step in this reasoning led to the argument that the introduction of a scheme segregating women and men students, retaining the more established and reputed facility for men students and asking women students to travel back and forth between the women’s college and the “co-educational” institution for men, did not constitute discrimination on grounds of sex alone, because it was sex coupled with the application of a scheme for women students, “which covered development of women’s college as a step towards the advancement of female education …”.8 This, even though it obstructed women’s entry into an institution and, thereby, validated the creation of “special institutions” for men contrary to the constitutional framework. Paradoxically, this also brought the scheme within the meaning of “special provisions for women” under Article 15 (3) and not under “discrimination”. Differentiation that is invidious and amounts to discrimination can even come through apparently benign legislation like the Court of Wards Act. A comparison between the provisions of Section 8 (1) (b) and 8 (1) (d) of the Uttar Pradesh Court of Wards Act clearly revealed that there was discrimination against women. Clause 8 (1) (d) left it to the discretion of the government to declare a female proprietor unfit to manage her estate without any rules being laid down to determine what constituted incapacity to manage the estate. She was not allowed to represent her case before the declaration was made. In the case of a man, not only did the law require that certain conditions be fulfilled before he could be

Judicial Meanderings in Patriarchal Thickets

175

declared unfit to manage his estate, but also that he be given the fullest opportunity to have his objection heard. The state of Uttar Pradesh, in defence of this provision argued, All differentiation is not discrimination and it is open to the state to classify citizens into categories provided that the classification is reasonable and based on intelligible indicia. Since it is a well known fact that women generally are not such competent managers of property as men and are much more liable to be led astray, therefore, for the purpose of management of property, they may be legitimately put in a class by themselves.

The Allahabad High Court, rejecting this argument, stated that the denial of the right of representation to women and the absence in Section 8 (1) (b) of the Courts of Wards Act of any rules similar to those in Section 8 (1) (d) could not but be regarded as “hostile” to women. The differentiation, it was held, attracted Article 15 protections, because it was based solely on the sex of the proprietor.9 Where there was a shortfall of institutions offering higher education to women alone, institutions that were hitherto open only to male students began opening their doors to the increasing number of women students. At this time, Madras University acted on a University Commission Report on the situation of women in co-educational institutions, which stated that life for them in these institutions that had a predominantly male presence lacked the “atmosphere of freedom necessary for their natural development”. As a remedial measure and to ensure discipline, women students were barred entry without express permission of the Syndicate. In justification of its decision to regulate the entry of girl students, the university argued—an argument that the court upheld, that it was not state-maintained and only state-aided and, therefore, did not come within the meaning of the state. Further, in a twisted reasoning, the court held that there were no regulations refusing admission to women students— “those regulations are addressed to colleges and it is the colleges that are refused permission to admit women when they do not provide sufficient facilities”. Although the fact of “hostile environments” was recognised explicitly as early as 1954, the remedy was the exclusion of women from these environments as a measure of “discipline”.10 Order 5 Rule 15 of the CPC provides that when defendants cannot be found and there is no agent empowered to accept service of summons, the

176

Kalpana Kannabiran

service may be made on an adult male of his family.11 The court held that the provision of Order 5 Rule 15 does not put women in a disadvantageous position but rather exonerates them from the responsibility of fastening notice of service as service on the other members of the family. Justifying its decision, the court observed, The function of females in Indian society is that of housewives. Until recently it was in exceptional cases that women took part in any other activity than those of housewives. Females were mostly illiterate and some of them parda nashin. The legislature while enacting this rule had in mind the special conditions of the Indian society and therefore enjoined upon the male members and did not regard service on females as sufficient.12

The distinction between classification/differentiation and discrimination based on sex has always been a troublesome one. The government of Bihar created two sex-segregated branches in a cadre and issued promotion orders to each separately, which resulted in the superseding of women with seniority. The court held that this violated the protections enshrined in Articles 14 and 16.13 As late as 1979, it was found that the cadre strength of women doctors in government service was only one-fifth of the total cadre strength of government doctors in Bihar. The state, with a view to address the needs of female patients decided to “earmark” and “allot” 125 seats for women in medical colleges. This, it was argued, was not reservation but a mere identification or classification of a “source” from which those seats were to be filled. The object, the state asserted and the court concurred, was to fulfil the “needs of lady patients in the state”,14 not to make special provisions for women to access medical education. Although, in effect, upholding the validity of reservation, the reasoning of the court understated its importance by foregrounding the “needs of patients” and identifying women, not as a class that has not had equality of opportunity in medical education, but as a “source” through which a public need will be fulfilled. This reasoning resulted in a displacement of “special provisions” under Article 15 (3) from being a constitutional right of women to positive discrimination to the more diffuse need for creation of medical facilities for women generally.15 While these are both necessary, they belong to different classes of action. Rendering them interchangeable through interpretation has far-reaching consequences for the jurisprudence on non-discrimination based on sex.

Judicial Meanderings in Patriarchal Thickets

177

It is also important to recognise that this is a doubled-edged weapon. Women’s claims against discrimination in one set of cases have been defeated on grounds that the impugned action is a classification and by that token not discriminatory. In yet another set of cases, classification is the medium through which special provisions and reservations for women are brought in. When evaluating whether or not a particular method of differentiation is discriminatory, it is therefore, important to ascertain whether that method will either lead to or reinforce existing hierarchies and concentrations of power. To the extent that they reflect and correspond with systems of social inequality, differentiation and classification may be the source of discrimination.16

Equality in Relationship The question of sex discrimination in the context of relationships is expressed in the jurisprudence on sex discrimination in two ways. First, in the context of spousal or filial relationship—in relation to adultery, bigamy, restitution, privacy, divorce, maintenance, property and guardianship, to name but a few and second, in the context of employment where a relationship is “represented” in specific ways that discriminate against women, denying them entitlements that in the normal course would accrue to all employees. From the first set of cases, I will pick three issues rather arbitrarily and reflect on their implications for an understanding of the ways in which courts have constructed conjugality and equality in relationships.17 Spousal relationship presents a very serious problem. The discussion on bigamy in an early case frames the issue of discrimination based on sex almost unconsciously, pointing to the social bases of jurisprudence, marriage providing the most illustrative space for unpacking the social context. The discussion on the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, centred on whether it was discriminatory to penalise Hindus for bigamous marriages while Muslims were allowed to be polygamous. The argument justifying the practice of bigamy was, A Hindu marries not only for association with his mate, but in order to perpetuate his family by the birth of sons. It is only when a son is born

178

Kalpana Kannabiran

to a Hindu male that he secures spiritual benefit by having someone who can offer oblations to his own shade when he is dead and to the shades of his ancestors and that there is no heavenly region for a sonless man. The institution of polygamy is based upon the necessity of a Hindu obtaining a son for the sake of religious efficacy.18

The court inserted women into this context, reinforcing it even while holding that bigamy was not permissible. Hindu marriage is a sacrament and not a contract and the sentimental love and devotion of a Hindu wife for her husband is well-known. Legislature may well have thought that it would be futile to make the offence of Hindu bigamy punishable at the instance of the wife because Hindu wives may not come forward with any complaint at all.19

The Sareetha case in Andhra Pradesh 20 years later, on the restitution of conjugal rights marked a turn in the judicial discourse on conjugality, a turn that was not sustained in subsequent cases.20 Examining the validity of Section 9 of the Hindu Marriage Act, the Andhra Pradesh High Court observed with exceptional sensitivity, “A court decree enforcing restitution… constitutes the starkest form of governmental invasion of personal identity.” Although theoretically this section applied to men and women equally and by that token satisfied the equality test, the court observed, “Bare equality of treatment regardless of the inequality of realities was neither justice nor homage to constitutional principles.” On the face of it, the court’s rejection of the right to restitution seems to be located within the framework of the right to privacy, bodily integrity and dignity (Nussbaum 2005: 192–197). While these are indeed the signposts, what the court seems to forewarn itself against is the danger of judicial complicity in marital rape—“to coerce the unwilling party through judicial process to have sex against that person’s consent”—and interrogates the claim for restitution from that vantage point. There was, however, a double somersault by the courts after Sareetha that rolled back the advance this interpretation represented on the place of consent and choice in marriage. With reference to restitution itself, in a context where marital rape can neither be named nor is a part of the offence of rape under the Indian Penal Code (IPC), it became possible for the Delhi High Court to assert that the introduction of the “cold principles

Judicial Meanderings in Patriarchal Thickets

179

of Constitutional Law” into the home was like “introducing a bull in a china shop” and “will have the effect of weakening the marriage bond”,21 a view that found reiteration in the otherwise commendable report of the Law Commission as late as 2000.22 This is one facet of the turnabout on Sareetha. Decisions on the law on adultery that followed close on the heels of the Sareetha judgment point us to another facet of the turnaround. Section 497 of the IPC says, Adultery: Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment … In such case the wife shall not be punishable as an abettor. 23

When the constitutional validity of this section was challenged on the grounds that it does not confer similar rights of prosecution on the husband and the wife and penalises extramarital relationships arbitrarily, the Supreme Court upheld the validity of this archaic section saying that “merely because the section does not define adultery to include cases where a husband has sexual relations with an unmarried woman it cannot be declared unconstitutional”, going on to observe that women are treated like chattel within marriage and that it is men who are the seducers, not women. This view, because it emanates from the crest of justice, the Supreme Court, is the “constitutional interpretation”. It is a fact that women are treated like chattel within marriage in a patriarchal system. If that is not desirable (as the Supreme Court seems to be saying), one way of removing women from the position of chattel is to reformulate the definition and implications of extramarital relationships, tying it to notions of consent, choice and dissolution of marriage—in other words, to use interpretation to step out of patriarchal confines. Instead, the court regrets the fact that women are chattel within marriage and yet it locks them firmly into the position of chattel by substituting constitutional morality with codes of public morality,24 which allow one man to prosecute another for having a relationship with his wife. And a wife cannot prosecute her husband, her lover or her lover’s wife, because within this framework, as chattel she is denied agency.25 The reduction of women to

180

Kalpana Kannabiran

chattel and the denial of agency are also evident in that a married woman under the law is not guilty of adultery if she has obtained the consent of her husband.26 The unequal position of husband and wife with respect to adultery under the Indian Divorce Act, 1869, was held by the Madras High Court as a valid classification since a woman could bear offspring who would under the law be treated as legitimate children of the husband, while a man “cannot bear a child” if he commits adultery.27 Biology, by this token, is destiny. The absence of a holistic understanding of discrimination in conjugal relationships and the disaggregated application of the law in this sphere is an expression of the strategy of jurisprudential dissociation. The court either subscribes to the wisdom of these provisions, as above or asserts that it is of little consequence, since the court is “the arbiter merely of the constitutionality of the law”.28 This strategy of jurisprudential dissociation is a critical tool in the ideological condonation of gender-based discrimination—embodying the interlocking of, to use Upendra Baxi’s delineation, C2 (constitutional interpretation) and C3 (“the discursive sites for justification … of practices and performances of governance”) (2004: 55). This strategy also expresses itself through the method of disaggregation where the social formation of gender-based discrimination is sliced into different parts that are viewed as independent entities that have no bearing on each other. It was not only Hindu wives who found themselves in an unequal position. What merits serious reflection is the emergence of a radical, even strident, voice in the judiciary willing to look at conjugal relations in the context of the Constitution in relation to Christian29 and Muslim30 women. With reference to Hindu women, however, the equivocation and quick resort to scriptural/textual/dominant cultural prescriptions of subordination and acquiescence of the ideal Hindu wife present a stark contrast. This doublespeak in relation to Indian women merits serious consideration, particularly because there is a radical voice with a long history within the Hindu community as well, one that speaks to a different notion of constitutional morality, the Sareetha case echoing Rukmabai’s struggle against the restitution of conjugal rights a century earlier (Chakravarti 1989: 73–74 and Sarkar 2001: 194).

Judicial Meanderings in Patriarchal Thickets

181

Discrimination at the Workplace Jurisprudence on discrimination against women in the workplace focused on equal treatment, equal pay for equal work, special provisions and an enunciation of the efficiency rules and the relationship rules. An important thread in Article 15 jurisprudence on the workplace has to do with what I call the “efficiency rules” and the “relationship rules”. The Indian Railways found that women employees are less susceptible to improper influence, were more patient and courteous and less corrupt than male employees and decided to reserve clerical posts in reservation offices for women with a view to increase efficiency.31 But this view of women’s efficiency in paid work, encouraging women and essentialising femininity in one stroke, although problematic, is rare in the discourse on women in paid work. The airlines, for instance, were very different. Air India and Indian Airlines wanted their hostesses to be young, “attractive”, underweight and unmarried; if they married, pregnancy was barred. By this argument, a narrowly prescribed, normative physical appearance against which women were measured in literal terms (“medical fitness”), was throughout their period of service the precondition of efficiency, which was achieved through an interlocking of bodily measurements with active disparity in material conditions of service based on sex.32 Although there have been major decisions that have struck down discriminatory provisions in the civil services33 and there was recognition at one level that “our struggle for national freedom was also a battle against woman’s thralldom”,34 the centrality of marriage to the definition of womanhood remains a disabling factor in women’s entitlements to justice and remedies at work. While locking women into stereotypes of the nurturing mother and the acquiescent wife who bear sole responsibility for housework and childcare and prescribing behavioural norms that curtail their mobility outside the home, these very stereotypes are transported through jurisprudence into the workplace to limit women’s access to equal opportunity and equal treatment.

The Efficiency Rules Where sex-disaggregated data shows an overwhelming number of male offenders in comparison to women offenders, should women with the

182

Kalpana Kannabiran

requisite service be promoted as jail superintendents of men’s jails?35 In the case of Mrs R.S. Singh, the Punjab and Haryana High Court were dealing with an order by the governor prohibiting women from employment in men’s jails except as clerks and matrons. While Mrs R.S. Singh was eligible for appointment as superintendent of jail, her name did not figure among the superintendents on the gradation list in March 1966 and records of her employment carried a note that she was not encadred with the superintendents. In general, she had been considered unfit for appointment in a men’s jail where hardened and ribald prisoners were confined.36 Women employed in these institutions, in this view, are potential victims of male crime, specifically male sexual crime, a possibility that even the prison cannot offer women protection against. It needs no great imagination to visualise the awkward and even hazardous position of a woman acting as a warden or other jail official who has to personally ensure and maintain discipline over habitual male criminals. Necessarily the inmates of these jails have a large majority of hardened and ribald criminals guilty of heinous crimes of violence and sex … The difficulties which even male wardens and other jail officials experience in handling this motley and even dangerous assemblage are too clear to need elaboration. A woman performing these duties in a men’s jail would be even in a more hazardous predicament.37

Assuming the position of absolute neutrality, the court posed the question in reverse. Would it be acceptable to employ men in all-women institutions? In prisons, educational institutions and the like? Clearly no. So it is concluded that it was absolutely reasonable to differentiate classes according to sex for purposes of employment.38 The reasons for both arrangements are not similar but identical, namely, whether you speak of men in custody or a man in authority, the state cannot assure good conduct. The solution, therefore, is to confine or exclude women as the case maybe. The justification, however, is in the efficiency rule. One of the paramount considerations for the public service must be the efficiency of its employees. The State must select and appoint persons most suitable to discharge the duties of a particular job which they are to hold … It is evident that where disparities of either sex, patently add to or detract from, the capacity or suitability to hold a particular post or posts, then the state would be entitled to take this factor into consideration in conjunction with others.39

Judicial Meanderings in Patriarchal Thickets

183

By a predictable elision, the best possible incumbents become the most suitable persons and sex is seen not alone but in conjunction with propriety, decency, morals and decorum. In other words, since sex-based discrimination is expressed through patriarchal notions of propriety, morality and so on, it is impossible to posit a distilled notion of sex that is separated from its semantic field. Any attempt to do this would render the articulation of discrimination on grounds of sex vacuous. Each of these terms is defined in a manner that the presence of one or more of these attributes “exonerates” women from citizenship (the purdah nashin wife) and their absence disqualifies them from citizenship (the prostitute). The fact of women’s dual responsibilities at home and work and the orientation of employers towards notions of gender-appropriate behaviour where women are concerned—even where the state is the employer—lead to the extension of the efficiency argument to defeat women’s claims to equality at work. Take, for instance, a police department denying women typists promotion “on public grounds”, “due to the peculiar nature of the work of the stenographers of the department (touring along with the officers and working at odd hours)”40 or the Indian Army resisting the posting of a lady officer as officer-in-charge of its legal cell on the grounds that the legal officer would be required to attend the courts every day, have to travel at odd hours in the morning and evening and handle courts martial and other “sensitive” courts of inquiry. The fair trade-off for the army was “in case the lady officer is to be posted to the station she may be adjusted as an additional officer”.41 In both these cases, the court upheld the claim of the women against the state but with a certain measure of unease. In the first case, holding that “whatever be the ultimate reason behind the order and however ‘laudable’ it may be”, that would not remove “the effect of the order [which] involves an infringement” of her fundamental right under Article 16 (1);42 in the second, that a “married lady officer with a child cannot be considered to be a ‘lame duck’ incapable of discharging her duties efficiently”.43

The Relationship Rules A school board in Tamil Nadu passed a resolution that “the service of the teacher will be terminated with three months notice when she gets married for the following reasons (i) When she takes maternity leave, the small

184

Kalpana Kannabiran

children’s education will be affected without teacher for three months …” Clearly, although there was no specific mention of women teachers, it was a sex-specific rule and was struck down as violative of Articles 13, 14, 16 and 21 because it discriminated against teachers who chose to get married and who were not Christian.44 Similarly, as late as the 1990s, the Municipal Corporation of Delhi, in a written statement filed before the Industrial Tribunal, pleaded that the provisions under the Maternity Benefit Act, 1961 or the Central Civil Services (Leave) Rules were not applicable to female workers engaged on a muster roll because they were all only on daily wages. The corporation also contended that they were not entitled to any benefit under the Employees’ State Insurance Act, 1948. Most of the women employed by the corporation were employed on a casual daily-wage basis for years on end and engaged in hard physical labour with no protections in place because they were designated as casual labour.45 This plea of the corporation was worth noting in the light of the fact that India is a signatory of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which explicitly speaks of the rights of women in employment. The effect of this decision, however, is also the protection of the right to reproductive choice and the right to relationships, both of which are extremely contested areas of women’s autonomy in contexts of discrimination. Nergesh Meerza is a telling case.46 In a case of public employment, the employer’s requirement of a four-year bar on marriage was retained as being reasonable and salutary, since generally air hostesses joined service at 19 and the regulation permits them to marry at 23. [This] is by all standards a very sound and salutary provision. Apart from improving the health of the employee, it helps a good deal in the promotion and boosting up of our family planning programme. Secondly, if a woman marries near about the age of 20 to 23 years, she becomes fully mature and there is every chance of such a marriage proving a success, all things being equal …47

The second provision on the termination of service on first pregnancy, the court found, shocked its conscience. It seems to us that the termination of the services of an AH [air hostess] under such circumstances is not only callous and cruel act but an open insult to Indian womanhood—the most cherished and sacrosanct

Judicial Meanderings in Patriarchal Thickets

185

institution. We are constrained to observe that such a course of action is extremely detestable and abhorrent to the notions of a civilised society … and is therefore clearly violative of Article 14 of the Constitution.48

However, it said, The rule could be suitably amended so as to terminate the services of an AH on third pregnancy provided two children are alive which would be salutary and reasonable for two reasons. In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the AH concerned as also for the good upbringing of the children. Secondly, … a bar of third pregnancy where two children are already there [would be acceptable] because when the entire world is faced with the problem of population explosion it will … be … absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of overpopulation …49

Condemning the stress on their “appearance, youth, glamour and charm”, the Supreme Court observed that since a woman in our country occupies a very high and respected position in the society as a mother, a wife, a companion and a social worker such observations disclose an element of unfavourable bias against the fair sex which is palpably unreasonable and smacks of pure official arbitrariness.50

In a case that involves women’s entitlements as workers, there is a jurisprudential dissociation the court effects between the claim and the claimant. The embodiment of the claimant in essentialist, non-material terms creates a crisis of dissonance in the legitimate material claim because, after all, the profane must not be allowed to disrupt the harmony of the sacred. And what greater profanity is there than equality? Further, for women—even women in public employment—there is no separation between the home and the world and any claim to privacy is null and void. This construction elevates deeply discriminatory cultural stereotypes above constitutionalism in a country where Tarabai Shinde’s Stree Purusha Tulana (A Comparison between Women and Men) inaugurated women’s struggles against their reification and subjugation more than a century ago (Shinde 1882, 1994).

186

Kalpana Kannabiran

Motherhood, pregnancy, childbirth, menstruation and marriage are for the male employer the principal constituents of the identity of women in paid work and determinants of their worth. For courts, these are the constituents of “modesty”. The Life Insurance Corporation (LIC) required women candidates to state the following: husband’s name in full and occupation, number of children, whether menstrual periods have always been regular and painless, number of conceptions, date of last menstruation, whether pregnant at the time of applying, date of last delivery and abortion or miscarriage, if any. All completely irrelevant to a woman’s employment or capacity or competence at work. If the LIC intended to map the possibilities for a healthy workforce neither pregnancy nor childbirth, nor menstruation is indicative of ill health or morbidity. Answering these questions is no more painful or “embarrassing” or “humiliating” than having to go through a pregnancy test before appointment. The court, however, thought differently. The modesty and self-respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless … etc.… If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service [the legality of which we express no opinion since not challenged], the Corporation could subject her to medical examination, including the pregnancy test.51

Jurisprudential dissociation (evident in the parenthetical remark) converges with the status quo yet again. More on the relationship rule. In 2002, the Indian Army had 980,000 active troops, along with an Army Reserve of 800,000. In 1994, it was reported that there were 200 women in the armed forces.52 Barring a couple in combat positions, all the rest were in the military nursing service. The military nursing service had evolved rules in the interests of the efficiency of the service, that after marriage, a person could remain in service only if she justified her continuance by showing extra efficiency in the years preceding her marriage. In 1988, Indira Kumari Kartiayoni, a Lt Nursing Officer in the military nursing service, got married after obtaining the requisite permission. However, after her marriage, her service was discontinued because she had failed to demonstrate “extra efficiency” in the two years before marriage. The Supreme Court ruled that

Judicial Meanderings in Patriarchal Thickets

187

the appellant be given the opportunity to prove her efficiency in the two years subsequent to marriage and be discontinued if found inefficient.53 What is the measure of that extra efficiency? But most important of all, an unjust rule was upheld and also the setting of different standards for women that work to their disadvantage as a class. The decision itself gave immediate temporary reprieve without displacing the arbitrariness of the rule in any manner whatsoever. For the women in the corps, however, it is not marriage that is the issue but sexual harassment and too little meaningful, engaging work (Goel et al. 2000: 140–142). And this is not the experience of women in the corps alone. The efficiency rules for women do not draw their legitimacy from the Constitution as in the case of Scheduled Castes (SCs) and Scheduled Tribes (STs) under Article 335.54 They are instead grounded in relationship rules or in the nexus between sex and “other factors” that, as Kannabiran suggests, represent patriarchy’s inarticulate major premise—the capabilities of women are to be assessed subjectively without respite and without any constitutional basis or justification.55 Parekh and Pantham echo this view when they say, “Politically enforced norms or principles of social organisation are rooted in the archaeologies of social knowledge, which serve as pre-theoretical or pre-articulate frames of our notions of political rationality, justice, truth, rights, democracy and moral beliefs” (1987: 9).

Equal Treatment In the second air hostesses case, Yeshaswinee Merchant, the Supreme Court negated the claim of equal treatment with respect to age at retirement and salary structure, upholding the early retirement of women employed as air hostesses in Air India, a public sector undertaking.56 Justifying its decision, the court drew on its own observation in an earlier case that “there cannot be any cut and dry formula for fixing the age of retirement” and that this “would always depend on a proper assessment of the relevant factors and may conceivably vary from case to case”. Four years later, in 2007, the Supreme Court upheld women’s claims to equal treatment and equality of opportunity, questioning sex-role stereotyping and the application of the parens patriae principle by the state to deny women access to equal treatment vis-à-vis employment opportunities in the hospitality sector.57

188

Kalpana Kannabiran

The air hostesses decision continues to validate unequal treatment even while women begin to access equal opportunity and treatment in restaurants and bars as a result of Anuj Garg. This is a second aspect of jurisprudential dissociation—the possibility of the simultaneous operation of contradictory lines of reasoning on the same issue, namely, discrimination based on sex. Another important dimension of equal treatment is equal pay for equal work. Although this principle is not expressly declared as a fundamental right in the Constitution, it is deducible from Articles 14, 16 and 39 (d).58 The Orissa Government issued a circular to the effect that women would be preferred for appointment as primary school teachers, irrespective of their position on the merit list. In pursuance of this, the chairman of the selection board directed the employment exchange to forward only the names of women candidates and specified that where suitable women candidates were not found, the posts be kept vacant until such candidates were found. This was challenged by an unregistered association of unemployed trained male matriculates and intermediates of the district of Keonjhar. Drawing on the Report of the Committee on the Status of Women in India, Towards Equality, the court, while acknowledging the disadvantaged position that women were in and asserting the need for special provisions and preferential treatment, also observed that the action of the chairman of the selection board directing the employment exchange to sponsor only the names of women was unjustifiable, as also his decision to keep seats vacant if suitable women were not available because it would amount to “100 per cent reservation”.59 The Special Rules for the Kerala Last Grade Service enumerates several categories of posts in that service. Rule 5 of the special rules deals with appointment to various categories. The note along with Rule 5 read in view of the arduous and special nature of duties and responsibilities attached to the posts specified in the table below, only male candidates shall be eligible for appointment under this rule to the said posts—peon, watchmen, duffadar, cleaner-cum-conductor, gatekeeper, court keeper, process server, messenger, village man, chainman, maistry, plumber.

This note underwent changes from time to time so as to exclude women from more and more categories. In place of 12, at the time the case was

Judicial Meanderings in Patriarchal Thickets

189

heard, 25 categories were included as inaccessible to women and four more had been proposed.60 While directing the Kerala Public Service Commission to appoint the petitioners in the next two vacancies that arose, the court “alert[ed] the state and union government to the need for attention to affirmative action in the area of sex discrimination”.61 The frequent violation of women’s right to equality by the state and the need for courts to step in time and again to rectify this point to the normalisation of discrimination against women in the public domain. The need for the court to state explicitly “the distribution of state largesse cannot be made in violation of right to equality”,62 or again, “the government should be a model employer. Socialism being the goal of our Constitution since 42nd Amendment … discrimination/exploitation [by the government with respect to public employment] has to be condemned”,63 is telling. Equally eloquent is the absence of a clearly identifiable judicial understanding of what sex discrimination is despite the concern and constitutional commitment of courts to rule against it.

Special Provisions Upholding the right of women to reservation in 1953, the High Court of Bombay asserted that the “government may well take the view that women are very necessary in local authorities because the point of view of women must be placed before the councillors before they decide any question affecting the municipality”.64 The judges held, The proper way to construe Article 15 (3) is that whereas under 15 (1) discrimination in favour of men on ground of sex is not permissible, by reason of Article 15 (3) discrimination in favour of women is permissible and when the state does discriminate in favour of women, it does not offend against Article 15 (1).65

The same question, deliberated on in the case of Km Sharada Mishra,66 introduced an additional twist in the interpretation of Article 15 (3). Reservation exclusively for men, even if they are dependents of ex-army personnel, is violative of Article 14. There can be reservation for dependents—male and female and an additional reservation (or a earmarking

190

Kalpana Kannabiran

of a part of the larger quota) for female dependents under Article 15 (3).67 However, the court’s ruling introduced the reasoning of “double advantage”.68 The construction of “special provisions” under Article 15 (3) does not make this contingent on the degree to which women gain space under Article 14. Whether or not women in particular institutions succeed in securing a space comparable to men, special provisions to increase their access aim at redressing the macro processes of discrimination that women are subjected to and exist alongside the fulfilment of Article 14.69 The only proviso that might possibly be read into this scheme is that when the mind of the community becomes enlightened and women achieve equality of status and opportunity, Article 15 (3) will become redundant and may be removed through a constitutional amendment. As long as it remains part of the Constitution, however, the provision can scarcely be read down through the introduction of arguments like “double advantage”. In effect, what this argument accomplishes is the denial of space in the open category to women and the validation of reservation for men (declared unconstitutional and ultra vires of Article 14 in the same judgment) without explicitly stating it. In 1995, the Supreme Court restored this right to women in State of AP vs P B Vijayakumar, where it held that while 30 per cent of posts in the said categories could be reserved for women, it was also open for women to compete for posts in other categories on an equal basis with men.70 Special provisions, while initially set into motion to redress the gender imbalance in employment and education because they address the need to create space for women, often use arguments that construct femininity as their rationale. While one side of this is the argument that women are not suited for “difficult, arduous work”, the other side is that women tend to be more honest, diligent, patient and courteous.71 Where the creation of special provisions was challenged as being discriminatory against men, the court held that it was the state’s prerogative to introduce classification through policy measures that were aimed at restoring gender equity and such classification could not be considered discriminatory.72 However, this matter of state prerogative, while essentially a corrective to realise the constitutional commitment to equality and eliminate discrimination and exclusion, has also been used arbitrarily, with women being treated as mere passive recipients or objects of state largesse or protection.

Judicial Meanderings in Patriarchal Thickets

191

This trend inverts the social justice intent of Article 15 (3), operationalising it in terms of the very discrimination it sets out to eliminate.73

Speaking of the Gender Division of Labour The gender division of labour inflects the litigation on non-discrimination, particularly with reference to paid work. Reservations of up to 50 per cent were allowed to women on the lowest rungs of the labour ladder, in this instance, scavenging, with the court justifying its “expansive” view with the observation that women provide better sweeper and scavenger services than men do.74 Women also perform important childcare functions, which need to be recognised adequately by the state. Take the case of “school mothers” in the employ of the Tripura Government. The children are picked up from their homes and dropped back by the school mothers, who also attend to the emotional and physical needs of the children—all between the ages of three and six—and manage the school nutrition programme, besides assisting the social education worker. They perform a very important and necessary function, the court found, but they were not adequately compensated for their work.75 And yet, in Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, the Supreme Court, while upholding the decision of the Bombay High Court on women stenographers’ entitlement to equal remuneration for work of the same or similar nature, went on to observe, Men do work like loading, unloading, carrying and lifting heavier things which women cannot do. In such cases there cannot be any discrimination on the ground of sex. Discrimination arises only where men and women doing the same or similar kind of work are paid differently. 76

An oft-repeated view of the court that links masculinity with the inherent capability for “arduous” work has two coexisting and mutually reinforcing parts: one, that men perform “arduous” work, which women are by definition incapable of matching;77 two, when men and women are seen and known to perform the same and similar work (flight duties in airlines, for instance), the duties that men perform are defined as “arduous” and compensated with longer service and fair conditions of employment,

192

Kalpana Kannabiran

merely because these are performed by men. There is in this last instance no requirement for the employer to demonstrate, task by task, the differences in work requirements for men and women.78 There are other somewhat amusing, yet troubling, twists that the gender division of labour brings about in the sphere of employment with consequences for questions of constitutionality. The Bimla Rani case, for instance, raised the issue of equal pay for equal work. Although the employer argued that the work was dissimilar and, therefore, justified differential wage rates, the petitioners pointed out the case of Sujjan, “a lady who was included in the list of men workers and so was getting a higher remuneration; but when it came to be known that she was wrongly designated as a male worker, her remuneration was reduced”.79 Nursing has historically been identified as a “female” profession that draws on the nurturing, caring functions women must perform in patriarchal societies. It has been measured in terms of selflessness in “service” that can never be monetised and, therefore, is always undervalued in terms of wages and eulogised rhetorically. Enter the male nurse, who gets appointed as a “sister tutor” and who, by virtue of service of more than two years, becomes senior to female sister tutors. On attaining seniority, can he be denied promotion on the grounds that the post is designated “senior tutor (female)”? The respondent contended that in a predominantly female institution, a female sister would be more suited to the duties of a senior tutor and that the rule regarding eligibility is not based on sex alone but on the suitability of a female candidate and the corresponding unsuitability of a male candidate for the post. The court held that to prevent a male sister tutor to be promoted to the post of senior tutor (female) on grounds that he is not female amounts to discrimination based on sex alone.80 Can women claim the night? Section 66 (1) (b) of the Factories Act, 1948, provides that “no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m.”. The court was unwilling to concede the claim that this provision discriminates unfairly against women. It is undoubtedly true that according to the traditional view, all that a woman needed to know was the four walls of her house … Today, things have changed.... Yet, the very nature of their commitment to the family and the social environment require that they cannot be entrusted with all those duties which men may be asked to perform. Normally, they are not sent

Judicial Meanderings in Patriarchal Thickets

193

to the borders to fight. Lady constables are not asked to go on patrol duty at night. Lady waitresses in hotels are not required to work during night. They may be good for managerial jobs. They may even work as waitresses up to certain hours. But, special provisions so as to ensure that they are not harassed can be and have been made. It is on account of this situation that the Constitution-makers had made a provision in Article 15 (3). The Legislature was permitted to make special provision for women and children. The purpose was to protect both of them against the hazardous jobs and to save them in spheres where the Parliament considered it necessary.81

What is the relationship between the gender division of labour and gender hegemonies in the workplace? In Yeshaswinee Merchant, while the All India Cabin Crew Association supported the demand of air hostesses on parity in age at retirement, it opposed the proposal of interchangeability of duties between male and female cabin staff. On closer examination, the Bombay High Court found that the reason for this was that under the existing rules, only a male member of the cabin crew could be a flight supervisor. If interchangeability were introduced, junior male cabin crew would be under the authority of a female flight supervisor, a possibility that all men in the association opposed. The court rejected this argument asserting that “the hierarchy on board the aircraft will be based on seniority irrespective of sex”,82 a decision the Supreme Court set aside. The Kerala High Court observation in the Rajamma case that “the attempt should not be to perpetuate discrimination but obliterate it”,83 marks an unusual parity between discursive frameworks and outcome. Despite these momentary glimmers, as late as 1990, advertisements for posts in the subordinate judiciary were issued explicitly barring women from applying.84 Finally, the celebrated Visakha judgment on sexual harassment in the workplace in 1997 and a spate of judgments following Visakha established the non-negotiability of women’s right to safe working conditions, free of sexual harassment.85 There was also, around this time, a progressive interpretation of women’s vulnerability to violence that was evident in some remarkable decisions. For instance, the case where defamation was interpreted as violence and the petitioner exempted from paying court fees under a provision in the Bombay Court Fees Act, 1949, which exempted women litigants from paying court fees in cases relating to maintenance, property disputes, violence and divorce.86 However, in a later case

194

Kalpana Kannabiran

involving the Cochin Port Trust’s policy against employing women as shore mazdoors (workers), the court reiterated its pre-Visakha position that while women cannot be excluded from employment only on the ground of sex, their right may be restricted if the conditions in which they are required to work are hazardous to their health and well-being. While coming to that conclusion, the court repeated the century-old wisdom of the 1908 case of Curt Muller vs The State of Oregon—“protect her from the greed and passion of man”—and took note that women working at the shipping wharf, away from the main office, isolated and alone, can be an object of violence on their person, especially at night and that in the circumstances, the decision did not violate Articles 14 and 15 (1) of the Constitution of India.87 This brings us back in a sense to where we began. This extensive review of case law demonstrates troubling patterns in the jurisprudence on sex discrimination that seem to point to the inescapability from discrimination based on sex. In general, the hazards of employment for women range from “difficult” work that they are “naturally” unsuited for, like “the movement amidst moving cargo and in the midst of huge cranes, forklifts, etc., demanding quick movement of feet”88 to the “sensitivities of sex and peculiarities of societal sectors”.89 Given this reality, courts have, with few valuable exceptions, found it expedient to choose a “pragmatic” approach rather than a “dogmatic” one in matters of equality based on sex,90 which translates on the ground into making peace with public morality and hostile environments. By definition, this has meant dismantling possibilities for the emergence of a constitutional morality of non-discrimination, especially based on sex but also other grounds. This is accomplished by applying principles of equality mechanically and situating the deliberation firmly within the patriarchal paradigm, which results in conceptual contradictions in equality jurisprudence. There is a discursive and structural problem as well. Legal language in current usage and legal reasoning, apart from the bare construction of the article or section itself, singularly lacks the felicity to speak to women’s life worlds. It is not a language that women speak, even if for the sole reason that they do not physically inhabit the bench beyond a token presence if at all. And to the extent that rights can only be expressed and realised through language and voice, the problem is fundamental and crippling.

Judicial Meanderings in Patriarchal Thickets

195

Conclusion Viewed in this manner, the swings in non-discrimination jurisprudence where it concern women cease to be unexpected. B.R. Ambedkar anticipated this difficulty clearly when he said, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it”.91 And “our people” includes women and men, leaders and citizens, litigants, lawyers and judges alike.92 There are faint glimmers of hope. The guidelines on the issue of sexual harassment in the Visakha case were framed from the standpoint of the situation of a working class Dalit woman’s vulnerability vis-à-vis the dominant castes, the police and the state or government. The purpose of the writ petition was to seek “the enforcement of fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon”.93 The significance of this decision lies in the judicial recognition of the notion of “hostile environments” as something obstructing women’s equal entry to employment—a notion that could be extended by courts to better understand the subjugation of women in patriarchal societies, which are divided along multiple, intersecting lines of caste, class, religion and gender, among others, not severally but together and in conjunction with each other. The first step in breaking the cycle of interpretive disaggregation and dissociation is to attempt to redefine sex and its contexts in radically new terms. In the recent Naz Foundation judgment, the Delhi High Court deliberated on the meaning of the word “sex” in Article 15 (1). Does the term “sex” refer to attribute (gender) or performance (sexual orientation)? Through a nuanced reading of “sex” in Article 15 (1), the court held that “sexual orientation is a ground analogous to sex and discrimination on the basis of sexual orientation is not permitted by Article 15”.94 We could take this further. Article 15 (1) of the Constitution says, “The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Although it is true, as Martha Nussbaum argues, that constitutional interpretation in some instances has driven a wedge between sex and gender through the use of the word “only” (2005: 180), it is necessary to re-examine this article and explore

196

Kalpana Kannabiran

the possibility that the phrase “or any of them” has a meaning distinct from “only”. While in legal usage the word “only” in this context denotes “solely” (Garner 1987: 390) and this is the way it has been interpreted by courts in India, there has been no discussion either in the Constituent Assembly or in case law on the concluding phrase of this clause, “or any of them” (Rao 1968: 182–192). The word “or” in legal usage means both “and” and “or” (Garner 1987: 394). Opening this clause out and re-examining its import points us in a different direction. Namely, the state shall not discriminate solely on the listed grounds and on any of the listed grounds, in the singular or the plural and on grounds of any of the listed indices with factors that do not figure in this list—factors that allude to the larger context. The specific conjunction of sex with any other factors or listed grounds that are alleged to result in discrimination based on sex must then be examined by the court. The emphasis will then shift from a mechanical reading to a substantive reading of the constitutional guarantee of non-discrimination. In other words, the word “only” need not drive a wedge between sex and gender if it is read harmoniously with “or any of them”, because this would open the possibility for reading sex either alone or in conjunction with other factors drawn from the social context in which sex operates— whether these be religion, race, caste, language and place of birth (each of which combines with sex to produce specific forms of discrimination) or they be the medium through which discrimination is transmitted (property, “conditions of service”, decorum and modesty). On another track, in the matter of relationship, it is useful to recall Draft Article 42, which says, The State shall endeavour to secure that marriage shall be based only on the mutual consent of both sexes and shall be maintained through mutual cooperation, with the equal rights of husband and wife as a basis. The State shall also recognise that motherhood has a special claim on its care and protection. (Rao 1968: 325)

This article, dropped from the final draft of the Constitution without a debate, nevertheless encapsulates an important aspect of constitutional morality with regard to marriage and conjugality—a notional change— that needs to be resurrected in ways that inform judicial and popular discourse on these questions. Its significance lies in that it has the potential

Judicial Meanderings in Patriarchal Thickets

197

to lift thinking out of the cycle of reification and subjugation of women that the discourse on heterosexual conjugality is trapped in even today. In the final analysis, it is only radical constitutional interpretation rooted in constitutional morality, which is strengthened by equal representation within the judiciary at all levels along all axes, that will open up rich possibilities for an intersectional jurisprudence on non-discrimination in India as the norm.

List of Case Citations A M Shaila and Another vs Chairman, Cochin Port Trust and Others 1995 (2) LLJ 1193. A N Rajamma vs State of Kerala and Others, 1983 LAB IC 1388. Air India Cabin Crew Association with Air India Officers Association and Another vs. Yeshawinee Merchant and Others and Air India Limited and Others, 2004 AIR (SC) 187. Air India vs Nergesh Meerza and Ors, AIR 1981 SC 1829. Albert Davit Limited vs Anuradha Choudhury (Ms) and Others, 2004 (3) LLJ 608. Alfred Baid vs Union of India, 1976 AIR (Del) 302. Amalendu Kumar vs The State of Bihar and Ors, AIR 1980 Patna 1. Anuj Garg and Ors vs Hotel Association of India &Ors, (2008) 3 SCC 1. Apparel Export Promotion Council vs A K Chopra, 1999 (1) SCC 759; B R Acharya and Another vs State of Gujarat and Another, 1988 LAB IC 1465. Bijoy Kumar Jena vs The State of Orissa, 1987 LAB IC 593. Bimla Rani and Ors vs Appellate Authority Equal Remuneration Act, 1976 and Ors, 2005 (2) LLJ 148. C B Muthamma vs Union of India, AIR 1979 SC 1868. Capt (Mrs) Dimple Singla vs Union of India and Others, 2002 (63) DRJ 216. Charan Singh and Others vs Union of India, 1979 LAB IC 633. Chitra Paul Smt and Others vs State of Tripura and 3 Others, 1994 (1) CLR 1099. Dattatray Motiram More vs State of Bombay, AIR 1953 Bombay 311 (Vol 40 CN 98). Dr Dwaraka Baivs Nainan Mathews, 1953 AIR (Mad) 792. Government of AP vs P B Vijaykumar and Another, 1995 AIR (SC) 1648. Harvinder Kaur vs Harmander Singh Choudhry, AIR 1984 Delhi 667. J R Clement Regis vs State of Tamil Nadu, 1993 II CLR 651. Janabai Govind Surve vs The State of Maharashtra and Others, AIR 1991 Bom 333, Jani Bai vs State of Rajasthan and Ors, AIR 1989 Raj 115. K R Gopinath Nair vs The Senior Inspector cum Spl Sales Officer of Cooperative Societies and Others, AIR 1987 Ker 167, Km Sharada Mishra vs State of UP, Medical Education UP, Lucknow and Ors, AIR 1993 ALL 112. Leelavs State of Kerala, 2004 (3) LLJ 106. Lt (Mrs) Indira Kumari Kartiayoni vs The Maha Nideshak, Raksha Mantralaya, Shastra Sena Chikitsa Seva, New Delhi and Others, AIR 1991 SC 416. Lt C Reethama Joseph (Mrs) vs Union of India and Others, 1997 (10) SCC 721, M C Sharma (Dr) vs Punjab University, Chandigarh, AIR 1997 P&H 87, 120.

198

Kalpana Kannabiran

M I Shahdad v. Mohd Abdullah Mir and Others, AIR 1967 J&K 120. Medha Kotwal Lele and Ors vs Union of India and Ors, W P (Crl) No 173-177/ 1999 dated 26 April 2004; Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 1987 AIR (SC) 1281. Mohammed Ahmed Khan vs Shah Bano Begum and Others, AIR 1985 SC 945 Mohini Philip vs Union of India and Others, 1993 (2) LLJ 182 Mrs Neera Mathur vs LIC of India and Another, 1992 LAB IC 72. Mrs R S Singh vs State of Punjab and Others, AIR 1972 Punjab and Haryana 117. Mrs Rupan Deol Bajaj and Another vs Kanwar Pal Singh Gill and Another, 1996 AIR (SC) 309. Mrs Sivanarul vs State of Tamil Nadu, Rep by Secretary, Department of Education, Madras-9; (2) The Director of School Education, Madras-6; (3) Nirmala Matriculation School, Chidambaram by Its Cor, St Valentine Mary; (4) Mrs Vijaya Ananda, 1985 II LLJ 133. Mrs Uma Sinha vs The State of Bihar, 1975 LAB IC 637. Mrs Usha Badri Poonawallavs K Kurian Babu, 2002 AIR (Bom) 292. Municipal Corporation of Delhi vs Female Workers (Muster Roll) and Another, 2000 AIR (SC) 1274. Naz Foundation vs Government of NCT of Delhi and Others, 2009 (160) DLT 277. Om Narayan Agarwal vs Nagar Pallika, Shahjahanpur, AIR 1993 SC 1440. Omana Oomen vs FACT Ltd, (1990) II CLR Kerala 42. Omana Oomen vs FACT Ltd, AIR 1991 Ker 129. Padmraj Samarendra and Ors vs State of Bihar and Another, AIR 1979 Patna 266. Phulmani Dibya vs State of Orissa and ors, AIR 1974 Ori 135. Pragati Varghese vs Cyril George Varghese, 1997 Bom LR 333. Radha Charan Patnaik vs State of Orissa and Another, AIR 1969 Orissa 237 (V56 C84). Rajasthan Dainik Vetan Bhogi and ors vs State of Rajasthan and Ors, 1994 II CLR 975. Randhir Singh vs Union of India, 1982 Indlaw SC 108. Rani Raj Rajeshwari vs State of UP and Others, AIR 1954 All 608. S Lalitha Sundari and Another vs R Kethar Nathan and Others, 2002 AIR (Mad) 17. Samridhi Devi vs Union of India and Others, 2005 (125) DLT 284. Sant Ram Sharma vs State of Rajasthan, AIR 1967 SC 1910 Saudi Arabian Airlines vs Shehnaz Mudhatkal and Another, 1999 (2) CLR 766; Shamsher Singh vs State, AIR 1970 P&H 372, Shri Dnyandeo Dattatraya Kale and Ors vs The State of Maharashtra, 1995 (3) BCR Smt Anjali Roy vs State of West Bengal, AIR 1952 Cal 825. Smt Suraj Kumari and Ors vs State of UP and Ors, 1990 LAB IC 34, Smt Urmila Devi vs State of UP and Another, 1990 LAB IC 2047. Sowmithri Vishnu vs Union of India, 1985 SUPP SCC 137. Sri Mahadeb Jiew and anr vs. Dr B B Sen, AIR 1951 Cal 563. Srinivas Iyer vs Saraswathi Ammal, AIR 1952 Mad 193. State of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84. Swapna Ghosh vs Sadananda Ghosh and Anot

List of Abbreviations in Case Citations AIR All

All India Reporter Allahabad

Judicial Meanderings in Patriarchal Thickets AP Bom Cal CLR Del DLT DRJ J&K Ker LAB IC LIC LLJ LR Mad Ori Raj SC SUPP SCC Supreme US WP

199

Andhra Pradesh Bombay Calcutta Current Law Reporter Delhi Delhi Law Times Delhi Reported Judgments Jammu and Kashmir Kerala Labour Indian Cases Labour and Industrial Cases Labour Law Journal Law Reporter Madras Orissa Rajasthan Supreme Court Supplements Supreme Court Cases Supreme Today United States Writ Petition

Notes 1. Sri Mahadeb Jiew and anr vs Dr B.B. Sen, AIR 1951 Cal 563. 2. M.I. Shahdad vs Mohd Abdullah Mir and Others, AIR 1967 J&K 120. 3. Air India Cabin Crew Association with Air India Officers Association and Another vs Yeshawinee Merchant and Others and Air India Limited and Others, 2004 AIR (SC) 187. 4. Article 15 (1) of the Constitution of India. 5. In a larger ongoing project, I attempt to explore the ideological foundations and intersections between discrimination on various grounds. 6. Sri Mahadeb Jiew and anr vs Dr B.B. Sen, AIR 1951 Cal 563. 7. Sri Mahadeb Jiew and anr vs Dr B.B. Sen, AIR 1951 Cal 563. 8. Smt Anjali Roy vs State of West Bengal, AIR 1952 Cal 825. 9. Rani Raj Rajeshwari vs State of UP and Others, AIR 1954 All 608. For a decision upholding women’s right to inherit property under the Mayurbhanj Lakhrai tenure and bless rulers, see Phulmani Dibya vs State of Orissa and ors, AIR 1974 Ori 135. 10. The University of Madras vs Shantha Bai and Another, AIR 1954 Mad 67. Significant to our general framework for an understanding of non-discrimination, the court on this point, interestingly enough, relied on the American decision—Norris vs Marjor and City Council of Baltimore 76 F supp 451 (D Md 1948) (L)—where a rule prohibiting admission of blacks in a private school which received aid from the state but was not maintained by the state, was held that it did not violate the 14th Amendment. 11. M.I. Shahdad vs Mohd Abdullah Mir and Others, AIR 1967 J&K 120. 12. M.I. Shahdad vs Mohd Abdullah Mir and Others, AIR 1967 J&K 120. 13. Mrs Uma Sinha vs The State of Bihar, 1975 LAB IC 637.

200 14.

15.

16.

17. 18. 19. 20. 21. 22. 23.

24.

25. 26.

27. 28.

29. 30. 31.

Kalpana Kannabiran In the court’s words, “the mental aptitude and psychological background of lady patients for treatment of gynaecological diseases and also obstetric services by lady doctors cannot also be ignored for the purpose of judging the reasonableness of such earmarking”. Padmraj Samarendra and Ors vs State of Bihar and Another, AIR 1979 Patna 266. Padmraj Samarendra and Ors vs State of Bihar and another, AIR 1979 Patna 266. In Amalendu Kumar, where the petitioner challenged the reservation of 20 per cent seats in medical college for girls on the ground that the total quantum of reservation exceeded 50 per cent (Scheduled Castes 14 per cent, Scheduled Tribes 9 per cent, Backward Classes 10 per cent, women 20 per cent—total 53 per cent), the court held that if women have been identified as a source of allotment and not claimants of reservation, the 20 per cent allotment cannot be counted in with the rest of the reserved seats, and, therefore, the quantum of reservation stays well within the 50 per cent watermark. Amalendu Kumar vs The State of Bihar and Ors, AIR 1980 Patna 1. I explored this and related themes of discrimination in a rather cursory fashion in “The Need for a Jurisprudence of Women’s Rights in India”, Alladi Krishnaswami Memorial Lecture, 3 October 2003, Hyderabad, published in Alladi Memorial Trust, Alladi Memorial Lectures, 249–268. A detailed discussion on rights in relationship in different religious groups will require far more space and deliberation than is possible in this essay. State of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84. State of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84. Also Srinivas Iyer vs Saraswathi Ammal, AIR 1952 Mad 193. T. Sareetha vs T Venkata Subbaiah, AIR 1983 AP 356. Harvinder Kaur vs Harmander Singh Choudhry, AIR 1984 Delhi 667. The Law Commission of India, 172nd Report on Rape Laws, 2000. The section enables a husband to prosecute the man with whom his wife has an extramarital relationship, it does not confer a similar right on a woman whose husband is in a relationship with a married woman and married men entering relationships with unmarried women are left out of the circle of prosecution. For a discussion on Ambedkar’s formulation of constitutional morality as distinct from public morality, see the recent judgment of the Delhi High Court in Naz Foundation vs Government of NCT of Delhi and Others, 2009 (160) DLT 277. Sowmithri Vishnu vs Union of India, 1985 SUPP SCC 137. The absence of spousal consent, it might be argued from a “legal” point of view, points to mensrea, but we are looking here precisely at the ideological ramifications of legal reasoning. Dr Dwaraka Bai vs Nainan Mathews, 1953 AIR (Mad) 792, cited in Swapna Ghosh vs Sadananda Ghosh and Another, 1989 AIR (Cal) 1. V. Revathi vs Union of India, (1988) 2 SCC 72. In Naz Foundation vs Government of NCT of Delhi and Others, 2009 (160) DLT 277, the Delhi High Court reinvents the role of the arbiter of the constitutionality of the law, making a sharp departure from the tradition of jurisprudential dissociation. Pragati Varghese vs Cyril George Varghese, 1997 Bom LR 333. Mohammed Ahmed Khan vs Shah Bano Begum and Others, AIR 1985 SC 945 Charan Singh and Others vs Union of India, 1979 LAB IC 633.

Judicial Meanderings in Patriarchal Thickets

201

32. Air India vs Nergesh Meerza and Ors, AIR 1981 SC 1829; Air India Cabin Crew Association with Air India Officers Association and Another vs Yeshawinee Merchant and Others and Air India Limited and Others, 2004 AIR (SC) 187. 33. Radha Charan Patnaik vs State of Orissa and Another, AIR 1969 Orissa 237 (V56 C84). The Indian Administrative Service (Recruitment) Rules, 1954 excluded married women from posts included in that service on the ground that marriage brings about certain disabilities and obligations which may affect the efficiency or suitability of employment. 34. Justice Krishna Iyer in C.B. Muthamma vs Union of India, AIR 1979 SC 1868. C.B. Muthamma, a foreign service officer successfully challenged the IFS Rules, 1961, which required a woman officer to take written permission before marriage and the rule that barred married women from entering the service. 35. Mrs R.S. Singh vs State of Punjab and Others, AIR 1972 Punjab and Haryana 117. 36. (1907) 208 US 412. 37. Mrs R.S. Singh vs State of Punjab and Others, AIR 1972 Punjab and Haryana 117. 38. By 1997, recruitment rules providing that the post of principal of a women’s college shall be filled by a female incumbent are invalid, unconstitutional and ultra vires the provisions of Articles 14, 15 and 16 of the Constitution. M.C. Sharma (Dr) vs Punjab University, Chandigarh, AIR 1997 P&H 87, 120. 39. A reiteration of White on public administration, which, the court said was also noticed with approval by the Supreme Court in Sant Ram Sharma vs State of Rajasthan, AIR 1967 SC 1910: “The the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned.” 40. Vijayamma vs State of Kerala and Others, 1978 (2) LLJ 323. In Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 1987 AIR (SC) 1281, the Supreme Court upheld the decision of the Bombay High Court on women stenographers’ entitlement to equal remuneration for work of a same or similar nature. In Uttarakhand Mahila Kalyan Parishad and Ors vs State of UP, 1993 Supp (1) SCC 480, the Supreme Court ruled that there was no justification for women teachers being paid less or having fewer promotional avenues than their male counterparts and directed the state to ensure parity between women and men teachers. In the case of Omana Oomen vs FACT Ltd, AIR 1991 Ker 129, the court reiterated the non-negotiability of equal treatment and equal opportunity, alongside protective measures barring employment of women from night shifts. 41. Capt (Mrs) Dimple Singla vs Union of India and Others, 2002 (63) DRJ 216. 42. Vijayamma vs State of Kerala and Others, 1978 (2) LLJ 323. 43. Capt (Mrs) Dimple Singla vs Union of India and Others, 2002 (63) DRJ 216. 44. (1) Mrs Sivanarul vs State of Tamil Nadu, Rep by Secretary, Department of Education, Madras-9; (2) The Director of School Education, Madras-6; (3) Nirmala Matriculation School, Chidambaram by Its Cor, St Valentine Mary; (4) Mrs Vijaya Ananda, 1985 II LLJ 133. 45. Municipal Corporation of Delhi vs Female Workers (Muster Roll) and Another, 2000 AIR (SC) 1274. 46. Air India vs Nergesh Meerza and Ors, AIR 1981 SC 1829. 47. Ibid. Article 15 is recognition that all things are not equal. 48. Ibid. 49. Ibid.

202

Kalpana Kannabiran

50. Ibid. The clauses regarding retirement and first pregnancy were struck down as unconstitutional, third pregnancy termination was recommended in passing as an aside and the pleas for parity of promotional avenues with AFPs and parity with service conditions of AHs in foreign airlines rejected. The “fair sex” is a peculiarly judicial way of naming (refusing to name?) women, the other way is to call them “females”. 51. Mrs Neera Mathur vs LIC of India and Another, 1992 LAB IC 72. 52. It has been observed by a court in some other case that reserving 50 per cent of jobs for women would constitute a monopolisation of posts in favour of women. This rule does not apply to the monopolisation of posts in favour of men even in public employment. 53. Lt (Mrs) Indira Kumari Kartiayoni vs The Maha Nideshak, Raksha Mantralaya, Shastra Sena Chikitsa Seva, New Delhi and Others, AIR 1991 SC 416. Mohini Philip vs Union of India and Others, 1993 (2) LLJ 182 challenged the same rule successfully. Also Lt C Reethama Joseph (Mrs) vs Union of India and Others, 1997 (10) SCC 721, where the petitioner challenged the validity of the rules that authorised the respondent to discharge the petitioner on marriage. The court dismissed the petition and did not strike down the rule, but reserved the right of the petitioner to challenge the impugned order regarding her release before the appropriate authority and in accordance with the law. 54. In the case of the Scheduled Castes and Tribes, the efficiency rule laid down in Article 335 reverses the equality principle embodied in reservations because the underlying assumptions of these two provisions contradict each other directly. A more detailed elaboration of this point is outside the scope of this essay. 55. K.G. Kannabiran. Personal communication dated 14 July 2009. 56. The Bombay High Court in Yeshaswinee Merchant and Others vs Air India Limited and Others, 2001(3) CLR 815, ruled in favour of absolute parity and equality of treatment. The Supreme Court, however, set aside this decision and censured the Bombay High Court for the violation of “judicial discipline”, Air India Cabin Crew Association with Air India Officers Association and Another vs Yeshawinee Merchant and Others and Air India Limited and Others, 2004 AIR(SC) 187, para 46. 57. Anuj Garg and Ors vs Hotel Association of India & Ors, (2008) 3 SCC 1. 58. Randhir Singh vs Union of India, 1982 Indlaw SC 108. This principle of equal pay for equal work was applied in Chitra Paul, with the court holding that when all “school mothers appointed by the Government of Tripura performed identical work, there was no justification for fixing differential pay scales for temporary school mothers and regular school mothers. Chitra Paul Smt and Others vs State of Tripura and 3 Others, 1994 (1) CLR 1099. 59. Bijoy Kumar Jena vs The State of Orissa, 1987 LAB IC 593. 60. A.N. Rajamma vs State of Kerala and Ors, 1983 LAB IC 1388. 61. A.N. Rajamma vs State of Kerala and Ors, 1983 LAB IC 1388. 62. Jani Bai vs State of Rajasthan and Ors, AIR 1989 Raj 115. Also the case of Janabai Govind Surve vs The State of Maharashtra and Others, AIR 1991 Bom 333, where the state through the Claims Tribunal created a disability on the absolute right of a female claimant to receive and deal with the amount of compensation as she deemed fit. Or even S. Lalitha Sundari and Another vs R. Kethar Nathan and Others, 2002 AIR (Mad) 17, where positions explicitly designated for “female descendents” were filled by men, using the misconstruction that “female descendent” meant descendent in the female line and not a descendent who is female. 63. Chitra Paul Smt and Others vs State of Tripura and 3 Others, 1994 (1) CLR 1099.

Judicial Meanderings in Patriarchal Thickets

203

64. Dattatray Motiram More vs State of Bombay, AIR 1953 Bombay 311 (Vol 40 CN 98). 65. Ibid. 66. Km Sharada Mishra vs State of UP, Medical Education UP, Lucknow and Ors, AIR 1993 ALL 112. 67. Fifteen seats were reserved for dependents of ex-army personnel, of which 10 were reserved for male candidates and five for female candidates in the Moti Lal Nehru Medical College, Allahabad for the MBBS course. 68. If the requisite number of women qualified in the open category, the seats reserved for women would be opened up to men as well. 69. Shamsher Singh vs State, AIR 1970 P&H 372, had already held that: “Only such special provisions in favour of women can be made under Article 15 (3), which is reasonable and do not all together obliterate the constitutional guarantee enshrined in Article 16 (2).” 70. Government of AP vs P B Vijaykumar and Another, 1995 AIR (SC) 1648. Similarly, with the cooperative societies’ case where it was found that the participation of women in the affairs of cooperative societies in Andhra Pradesh had been very minimal. Therefore, in response to the recommendation of the National Convention on the Involvement of Women in Cooperative Movement that one-third of the seats be reserved to the women in the management committee of cooperative societies, the Government of Andhra Pradesh amended the AP Cooperative Societies Act, 1964, providing for the nomination of two women by the registrar in accordance with authorised procedure. The women so nominated would have the right to vote and otherwise to take part in the proceedings of the meetings of the committee. Although this would take the total reserved positions beyond 50 per cent, the court ruled that the 50 per cent rule only applied to reservations under 15 (4) and 16 (4), women’s reservation falling outside this categorisation and with a validity independent of reservations in other streams. Toguru Sudhakar Reddy and Another vs The Government of Andhra Pradesh and Ors, AIR 1994 SC 544. 71. Charan Singh and Ors vs Union of India and Ors, 1979 LAB IC 633. The railway administration relied on the “The Report of the Committee on the Status of Women in India (1974) which clearly lays down the fact of backwardness of women”. In K.R. Gopinath Nair vs The Senior Inspector cum Spl Sales Officer of Cooperative Societies and Others, AIR 1987 Ker 167, reasserting the importance of reservation for women and Scheduled Castes in cooperative societies, the court drew on the work of Emile Durkheim and Andre Beteille in explaining inequality and the idea of progress. 72. B.R. Acharya and Another vs State of Gujarat and Another, 1988 LAB IC 1465. Also, see Vijay Lakshmi vs Punjab University and Others, 2003 (8) SCC 440, where it was held to be in keeping with reasonable classification and Article 15 (3) to reserve the post of principal in a women’s college for women with requisite qualifications. 73. For instance, in Om Narayan Agarwal vs Nagar Pallika, Shahjahanpur, AIR 1993 SC 1440, a provision in the UP Municipalities Act provided for the nomination of two women members by the state government, at the pleasure of the government, paving the way for the arbitrary replacement of women members to pre-empt crucial voting on issues concerning the Municipal Board. Or in Vijay Lakshmi vs Punjab University and Others, 2003 (8) SCC 440, where, ruling that reserving the post of women’s college principal for women was not ultra vires of 16, the court justified the provision through recourse to “public morals”, particularly given the young age at which the girls are to be taught.

204

Kalpana Kannabiran

74. Rajasthan Dainik Vetan Bhogi and ors vs State of Rajasthan and Ors, 1994 II CLR 975. 75. See also J.R. Clement Regis vs State of Tamil Nadu, 1993 II CLR 651. 76. Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 1987 AIR (SC) 1281. 77. A N Rajamma vs State of Kerala and Ors, 1983 LAB IC 1388. 78. Air India Cabin Crew Association vs Air India Officers Association and Another vs Yeshawinee Merchant and Others and Air India Limited and Others, 2004 AIR (SC) 187. For the use of the word “arduous”, see para 74. 79. Bimla Rani and Ors vs Appellate Authority Equal Remuneration Act, 1976 and Ors, 2005 (2) LLJ 148. 80. Alfred Baid vs Union of India, 1976 AIR (Del) 302. 81. Leela vs State of Kerala, 2004 (3) LLJ 106. 82. Yeshaswinee Merchant and Others vs Air India Limited and Others, 2001 (3) CLR 815. 83. A.N. Rajamma vs State of Kerala and Others, 1983 LAB IC 1388. Kerala also ruled in 1990 that merely because a job required one night shift assignment out of three, the prohibition on women working between 10 p.m. and 5 a.m. (proviso to Section 66 (b) of the Factories Act) cannot be used to deny women opportunity for employment where they are otherwise qualified. Omana Oomen vs FACT Ltd, (1990) II CLR Kerala 42. 84. Smt Urmila Devi vs State of UP and Another, 1990 LAB IC 2047. 85. Apparel Export Promotion Council vs A.K. Chopra, 1999 (1) SCC 759; Saudi Arabian Airlines vs Shehnaz Mudhatkal and Another, 1999 (2) CLR 766; Albert Davit Limited vs Anuradha Choudhury (Ms) and Others, 2004 (3) LLJ 608; Medha Kotwal Lele and Ors vs Union of India and Ors, W P (Crl) No 173-177/ 1999 dated 26 April 2004; Samridhi Devi vs Union of India and Others, 2005 (125) DLT 284. See also the precursor to Visakha, Mrs Rupan Deol Bajaj and Another vs Kanwar Pal Singh Gill and Another, 1996 AIR (SC) 309. 86. Mrs Usha Badri Poonawalla vs K Kurian Babu, 2002 AIR (Bom) 292. 87. Vanitha Avakasa Samrekshana Action Counsel and Others vs Chairman Cochin Port Trust and Others, 2002 (35) LIC 938. 88. A.M. Shaila and Another vs Chairman, Cochin Port Trust and Others 1995 (2) LLJ 1193. In Smt Suraj Kumari and Ors vs State of UP and Ors, 1990 LAB IC 34, the court recognised that women face problems of security and other hardships if posted in rural areas and would additionally be cut off from their families. Even while upholding the order of the government, the court held that the women so transferred must be accommodated in urban rather than rural areas. In Shri Dnyandeo Dattatraya Kale and Ors vs The State of Maharashtra, 1995 (3) BCR 86, the absence of toilet facilities and police stations in rural Maharashtra was granted as a reason for a cooperative bank not appointing women at the taluka level. 89. C.B. Muthamma vs Union of India, AIR 1979 SC 1868. 90. C.B. Muthamma vs Union of India, AIR 1979 SC 1868. 91. Ambedkar quoted in Naz Foundation vs Government of NCT of Delhi and Others, 2009 (160) DLT 277, para 79. 92. The Indian Supreme Court has no sitting woman judge. The total number of women judges in the Supreme Court in the past 59 years has been three. There is an abysmally low representation of women in the judiciary in different jurisdictions—the proportion declining as one moves from the district level, which presents the highest figures, to the high courts (25 out of 514, or 4.86 per cent) and then to the Supreme Court, which

Judicial Meanderings in Patriarchal Thickets

205

presents the lowest figure at 0. National Alliance of Women, India: Second and Third NGO Alternative Report on CEDAW, New Delhi: NAWO, 2006, 53–54. 93. Visakha and Ors vs State of Rajasthan and Ors,1997 (7) Supreme 323. 94. Naz Foundation vs Government of NCT of Delhi and Others, 2009 (160) DLT 277, para 104. For a detailed analysis of this judgment, see Kalpana Kannabiran, “From ‘Perversion’ to Right to Life with Dignity”, The Hindu, 6 July 2009.

References Baxi, Upendra. (2004). “The (Im)possibility of Constitutional Justice: Seismographic Notes on Indian Constitutionalism” in Zoya Hasan, E. Sridharan and R. Sudarshan, India’s Living Constitution: Ideas, Practices, Controversies (New Delhi: Permanent Black). Chakravarti, Uma. (1989). “Whatever Happened to the Vedic Dasi? Orientalism, Nationalism, and a Script for the Past” in Kumkum Sangari and Sudesh Vaid (ed.), Recasting Women: Essays in Colonial History (New Delhi: Kali for Women), 27–87. Chattopadhyaya, Debiprasad. (1978). Lokayata: A Study in Ancient Indian Materialism (New Delhi: People’s Publishing House). Garner, Bryan A. (1987). A Dictionary of Modern Legal Usage (Oxford: Oxford University Press). Goel, D.S., R. Kumari, D. Saldanha, A. Kaushik and L. Gupta. (2000). “Attitudinal Profile of Military Nursing Service Officers”, Medical Journal Armed Forces India, April, 56 (2), 140–142. Kannabiran, Kalpana. (2009). “The Need for a Jurisprudence of Women’s Rights in India” in Alladi Memorial Trust, Alladi Memorial Lectures (New Delhi: Tulika Books), 249–268. ——— (2009): “From ‘Perversion’ to Right to Life with Dignity”, The Hindu, 6 July. Nussbaum, Martha C. (2005). “India, Sex Equality, and Constitutional Law” in Beverley Baines and Ruth Rubio-Marin (ed.), The Gender of Constitutional Jurisprudence (Cambridge: Cambridge University Press). Parekh, Bhikhu and Thomas Pantham. (1987). “Introduction” in Bhikhu Parekh and Thomas Pantham (ed.), Political Discourse: Explorations in Indian and Western Political Thought (New Delhi: SAGE). Rao, B. Shiva. (1968). The Framing of India’s Constitution: A Study (New Delhi: Indian Institute of Public Administration). Sarkar, Tanika. (2001). Hindu Wife, Hindu Nation: Community, Religion and Cultural Nationalism (New Delhi: Permanent Black). Shinde, Tarabai. (1882, 1994). “A Comparison between Women and Men: An Essay to Show Who’s Really Wicked and Immoral, Women or Men?” in Rosalind O’Hanlon, A Comparison between Women and Men: Tarabai Shinde and the Critique of Gender Relations in Colonial India (New Delhi: Oxford University Press), 73–134.

8

Women’s Health and Law in India: Trends of Hope and Despair* Shruti Pandey

Introduction “Women’s health and law” clearly sit at the intersection of two symbiotically hegemonic superstructures: patriarchy and law, the latter serving as a major instrument for perpetuation and validation of the former. When it comes to the legal framework on women’s health, the nexus is special, ensured by a neat overlap between the intimate connection of health with human bodies (in this case women’s bodies) on one hand and on the other hand, the deeply ingrained patriarchal obsession with women’s bodies, especially with establishing control over the sexual and reproductive attributes of women’s bodies. Not surprisingly, therefore, law and policy frameworks on women’s health, world over, are commonly dominated by the perception of women essentially as reproductive machines and the problem of sexuality seen to be inherent in it—the role it adopts is, therefore, predictably protectionist in most places. The only thing which is different in India is that, with its resilient mix of patriarchy and feudalism, * The author would like to acknowledge friends and colleagues for readily sharing ideas and resources for this chapter, especially: N.B. Sarojini, V.S. Elizabeth, Sarasu Esther Thomas, Lawrence Liang, Seema Misra, Madhu Mehra and Shireen Irani. She extends special thanks to Subhadra Banda for her help in completing the footnotes and sources and for doing a quick round of editing of the final draft at a very short notice.

Women’s Health and Law in India

207

this pattern prevails in an even more entrenched manner. The growth of women’s rights activism in the country has only added another layer of complexity to it, by creating a mixed response, comprising lip-service and backlash, which continues to be inherently patriarchal—this response is reflected in the newer laws of the country, making it even harder to penetrate the system. Against this skewed backdrop, Indian law and policy framework around women’s health echoes the global Millennium Development Goals in its narrow, almost technical, obsession with women’s reproductive health—a huge national programme1 around women’s health has continued to focus on reduction in the total fertility rate (TFR) and maternal mortality rate (MMR).2 Within this indicator-driven approach, the Indian legal framework on health assumes that women’s legal needs around health are only for their reproductive health (read as pregnancy and childbirth). There is very little in there which addresses the more pressing and larger issues of women’s health—structural barriers to women’s access to health care and other health-related services in general and gross gender-induced inequities in the services and systems which are responsible for women’s poor health in general. The framework is nowhere near adopting the approach of reducing women’s special vulnerability to ill-health due to their systemic marginalisation in access to services. It ignores the systematically gendered exclusion from, and larger politicaleconomy of, the provisioning of health services in general. In that sense, the framework is gender-blind. And further, even if and where women are recognised as a special group, more often than not, it is approached as a homogenous group; there is little substantive recognition of the various layers of inequality and marginalisation within women, on the basis of numerous class and caste divisions, which result in intersectional and multiple vulnerabilities comprising gender and poverty or caste-based discrimination. At a larger social level, irrespective of the gender dimensions, the general Indian legal framework on health continues to look at health itself in a narrower and myopic framework of biomedical regime. The social determinants of health, that are well-established in the international standards as inextricable part and parcel of health,3 are yet to trickle into the official Indian legal definition of health, despite the fact that India is a signatory to all the relevant international treaties.4 In fact, the neoliberal

208

Shruti Pandey

governance model, within which the government is increasingly withdrawing from social responsibilities and openly collaborating with corporate private players, has been changing the policy landscape in glaring ways since the post-liberalisation 1990s. This change is most starkly visible in the health sector, due to the rise of an immensely powerful corporate health care sector of India which has ensured—typically under the banner of efficiency and quality—that even the biomedical response from government is reduced. In this framework, therefore, there is absolutely no room to incorporate gender as a social determinant of health. Recognising its under-performance and the worsening health indicators and their role in worsening poverty, in 2007, the central government of India has initiated a massive flagship programme for health in rural India on an urgent note,5 infusing vast resources on revamping government’s health services. However, the fact remains that the government spending on health still hovers around a meagre 1 per cent of its gross domestic product (GDP)6 and, thus, government health services continue to be highly underresourced and increasingly people are forced to seek health care from the profit-driven, unregulated, private sector. This reality of the larger law and policy framework on health also impacts women more adversely as they are invariably the last in pecking order. Another dimension which is yet to be recognised and established in India is related to the interface of legal framework on right to health with the legal framework on human rights. Of course, the right to health itself is a human right and then there are the well-established social-economic determinants of health already mentioned (food, water, sanitation, housing, education, livelihood) which support health indicators as a vital human right. In addition, there are other human rights, which are also linked with the human right to health in an overarching manner, especially in addressing the inequities and access issues. These are the vital human rights such as equality, non-discrimination, dignity, privacy, freedom, protection from torture and inhuman or degrading treatment.7 Also, the empowering twin understanding of health, as both entitlement and freedom, is also a far cry as far as India is concerned.8 In fact, there has been an increasing trend of the Western pharmaceutical giants coming to India for conducting their clinical trials on Indians9 to escape the heavy regulations in their own countries, apart from the low cost of research here, and also there have been increasing attacks on the Indian women’s

Women’s Health and Law in India

209

freedom from non-consensual medical treatment and experimentation on their bodies which have come to the fore. There is also an ongoing long war that the civil society has been fighting against encroachments on reproductive choices and freedom through coercive measures for restricting family sizes under a state dictated “two-child norm” that has been resurfacing in various ingenious avatars and euphemisms such as incentives and disincentives. Both these kinds of encroachments have tended to disproportionately impact women, especially poor women who can be more easily lured with money.10 In the absence of a firm legal framework on enforcement of human rights per se (despite the dedicated federal law on protection of human rights11), the intersection of right to health and human rights remains tenuous in legislation and has, therefore, heavily depended on judicial interventions in India. It is the judiciary that has generated many rays of hope for health rights, spurring a possible cycle of positive change in the legislative as well as implementational spaces for right to health in general and some of the issues of women’s health, especially their reproductive health, and in more recent times, even sexual health (for instance in the Delhi High Court’s judgement in Naz12 case, even though largely the area of sexual health rights still remain less secure). The judiciary has negotiated this change despite the fact that the Indian Constitution, unlike the modern Constitutions of some other countries, fails to recognise right to health as a legally enforceable and justiciable fundamental right and even fails to couch it unequivocally and pointedly as a “directive principle” to the state for inclusion in its policies, since it combines health with a broad directive on improving standard of living and nutrition.13 However, the outstanding Indian jurisprudence around Articles 21, 14, 19 and 15 of Constitution (the fundamental rights to life, equality, freedom and non-discrimination) has created several critical entry-points for recognition of various aspects of a legally enforceable right to health, even if there is no blanket ruling yet on the right to health per se. A notable feature of these judicial verdicts is that they have purposefully relied upon the international treaties and based their judgements on the standards recognised by them, even while the government has not domesticated them through national-level legislations. Also, they have increasingly been holding the government to account towards implementing their own programmes and schemes, despite the fact that those are cast more

210

Shruti Pandey

in the service-and-welfare mould than rights mould and which, therefore, are not very amenable to rights-based interrogation. The courts are, thus, acting as bridges between the people who are their intended beneficiaries and those programmes, by inventively forging an accountability and rights framework around them. It would be fair to say that whatever recognition of right to health, as a legally enforceable right, exists in India, it may be largely attributed to the Indian judiciary rather than the legislature. On the downside, however, these demands from and responses of the judiciary have remained centered in the Supreme Court and high courts, in the domain of their constitutional writ jurisdictions for mass action public interest litigation, which is largely the space for declaratory pronouncements. There has been poor development of ordinary legal remedies and actions for enforcement of these verdicts for the individuals’ cases through direct action; the judicial and quasi-judicial fora at the district and subdistrict level, with higher powers of enforcement and which are actually accessible to the common man, have largely remained outsiders to the judicial response to health rights related litigation, barring a few notable exceptions. These gaps lead to poor impact and enforcement, of the most remarkable judgements passed by the Supreme Court and high courts, in real lives of people. There is a lot of scope to develop and use a larger array of legal remedies and litigation strategies, in a wider array of fora. At the level of women’s health rights activism in the country, there have been impressive advances and there is a vibrant Indian chapter of the international People’s Health Movement (Jan Swasthya Abhiyan [JSA]) with significant women’s participation. However, there have also been instances of lack of maturity and broader vision in taking right to health forward in its entirety through the legal framework. In fact, at times the activists have, unwittingly, taken counter-productive stands, looking at the issues and approaching the statutes on those issues as separate compartments that exist in isolation of each other and failing to look at them together within the common context of patriarchy and women’s inequality and to apply the common anti-discrimination framework, thus even causing some unintended setbacks for all the issues. It is beyond the scope of this chapter to comprehensively cover all the above trends. Here, while attempting broader discussions, three case studies will be examined, which are representative of recent developments in the field: Under the section on legislation, MTP Act has been taken up as a case study, since it

Women’s Health and Law in India

211

exemplifies the broader analysis of Indian health legislation; under judgements, a Delhi High Court’s judgement in two cases of maternal mortality and morbidity has been examined, since it lays down an especially noteworthy and persuasive precedent on these issues; under the section on socio-legal advocacy, an interesting case of a clash of advocacies on two seemingly competing rights—abortion and declining sex ratio—has been chosen as it could serve as a useful learning experience for future.

Indian Legislative Framework on Health and on Women’s Health Though there is no comprehensive legislation on health in India, unlike in some other countries such as South Africa, Canada, UK, Argentina and Australia, there are a number of health-related laws at central or state levels.14 These laws have been selectively enacted on specific health care or health-related issues in India, such as drugs, medical education, mental health, pre-birth sex-selection and determination, medical termination of pregnancies (MTPs), organs transplant, medical negligence, registration of clinical establishments, registration of births and deaths, maternity benefits, occupational health and hazards, food safety, tobacco use, environmental safety, disabilities, motor accidents, etc. There are some pending health-related bills, for instance, the bill on human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS); some specifically women’s health related, such as the bill for regulation of artificial reproductive technologies (ARTs). There are also some laws that are primarily on other issues but are also related to health, for instance, domestic violence or consumer protection. Clearly, the Indian legislative framework on health itself is extremely patchy—there are numerous gaps or overlaps between them; it is also highly fragmented—together the laws fail to create any harmonious interplay inter se and as a whole. Overall, this legal framework is therefore complex and difficult to both understand and implement. Also, some statutes are outright archaic and conservative, some regressive, and most have not kept up with the emerging international standards.

212

Shruti Pandey

There is no law in India that covers the normative contents of right to health as established in the international standards of three As and Q, as the four pillars of right to health, namely: Availability, Accessibility (which includes affordability or economic accessibility, physical and information accessibility and non-discrimination), Acceptability and Quality.15 By necessary implication, there is also no systematic understanding of the framework to “respect, protect and fulfil” right to health or its various aspects.16 In fact, it can be safely stated that for most part, Indian laws relating to health have poor rights framework as such and the rights that do exist in some places are there quite incidentally. In this scenario of the larger legislative framework on health being feeble, it is rather ambitious to look for the legal framework especially on women’s health or a gendered understanding of health in the general legal framework—both are conspicuous by their absence, barring the few laws that essentially deal with women’s bodies such as—the Medical Termination of Pregnancies (MTP) Act, 1971, or the more recently passed Protection of Women from Domestic Violence Act, 2006, which also covers the health consequences of domestic violence. The latter is more an aberration though, being a law that was drafted by women’s groups and, thus progressive and in accordance with international standards on the issue.

Case Study 1: Medical Termination of Pregnancies (MTP) Act, 1971 We can look at the MTP Act as a representative case study on the quality of rights framework in the Indian laws on women’s health. This Act is counted among the more liberal abortion-related laws in the world, as it made abortion legal in the India as far back as in 1971. However, its bare reading shows that it has failed to keep itself abreast either with the demands and expectations of women in today’s times or with the progress in medical science or the evolving international standards on sexual and reproductive health. As a result, we have the ironic situation in the country where despite abortions being legal, most abortions are performed illegally and, consequently, in unsafe conditions. In fact, abortions performed by uncertified providers are estimated to be 2 to 10 times higher than those

Women’s Health and Law in India

213

performed legally by physicians.17 As a result, complications arising from abortions contribute to 8 per cent of the maternal deaths annually.18 By another estimate, every year 20,000 Indian women die due to abortionrelated complications. Though the Indian Act recognises some important abortion-related rights of women such as consent19 and confidentiality20 and to some extent safety,21 it fares poorly with respect to the rights that are really critical to the issue of abortion—the right to access and choice of the woman. The Act carries a totally physician-dependent and physician-centered regulation approach to abortion; in fact, its primary purpose is to protect the physician from penal consequences under the Indian Penal Code (IPC).22 Even after undergoing a round of major amendments as recently as in 2002, the MTP Act fails to provide the Indian woman access to safe abortion services on her request. The regime requires a physician’s certification (and of two physicians, for abortions in second trimester) about fulfilment of either of the two conditionalities, only under which abortion is legal in India: the first being risk to the life of the pregnant women or of grave injury to her physical or mental health (which would include rape of the women and contraceptive failure in case of married women) and the other is: substantial risk that the child, if born, would be seriously handicapped due to physical or mental abnormalities. These have to be ascertained and certified by a physician (for first trimester MTP) or two physicians (for second trimester MTP),23 only under which abortion service may be provided to a woman. It makes this law non-universal by definition and design, as well as open to arbitrary exercise of power by the physicians. In forming his/her opinion, the physician is guided by the criteria as subjective as ‘the pregnant woman’s actual or reasonably foreseeable environment’.24 Apart from the regime being overtly conditional and provider-driven, there are some provisions there that are clearly discriminatory such as the availability of abortion service to only a married woman in case of contraceptive failure,25 which totally excludes all the women who get pregnant outside of social sanction and of normative framework of marriages (such as unmarried adolescents and even adult single women), who actually require the service the most. The Act shows little understanding of the unequal and disproportionate burdens borne by the woman due to pregnancy, childbirth and her

214

Shruti Pandey

invariably being thrust with the role of primary caregiver and nurturer of the child, which severely restrict her life choices and make it imperative for the woman to have complete control over her fertility. Especially in the Indian context, where there is poor provision and access to health services in general and specifically to the contraceptives and contraceptive services, this is even more required. Also, most women in India have poor negotiating or decision-making capacities due to their low social status, economic subordination, poor education, culturally—sanctioned and—perpetrated early age of marriage and high prevalence of sexual abuse. In such circumstances, there is even higher need for the Indian woman to receive abortion services on her request and without any condition, to terminate an unwanted pregnancy. It is due to the absence of this understanding in the law, that even though abortion is legal in India, more abortions are carried out illegally than legally and, therefore, in unsafe conditions, as it is extremely difficult and cumbersome for any woman to access legally provided abortion services and for many large categories, it is impossible due to the legal restrictions. A large number of them use home remedy or go to informal providers for terminating their unwanted pregnancies, most of the times unsuccessfully, and are driven to late abortions. The MTP Act aptly exemplifies the attitude of the Indian legislature on women’s health—woman’s own needs and interests seem to be a secondary consideration even in the laws related to women’s reproductive health. In the case of other issues of women’s health, there are no laws. That is the narrow choice that seems to be currently available to the Indian woman, in the field of legislation.26

Indian Judicial Pronouncements on Right to Health in General and Women’s Right to Health As briefly mentioned earlier, in the absence of a firm legislative framework and even a strong Constitutional mandate on right to health per se, the Indian Supreme Court and high courts have often come to the rescue of Indian citizens, especially through the judicial response in Public Interest Litigation (PIL), in its own unique form as it has evolved in India.27

Women’s Health and Law in India

215

In fact, it is noteworthy that some of the earliest landmark judgements delivered by Indian Supreme Court in PILs, during the formative years of Indian PIL jurisprudence, arose out of concerns for public health. In Municipal Council Ratlam v. Vardhichand and Ors,28 while rejecting the plea of monetary constraints for performing its duty of cleaning up the garbage, advanced by the municipal corporation, the Supreme Court relied on Article 47 of the Constitution under the chapter on Directive Principles of State Policy and observed: ‘The State will realise that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties.’ In many other judgements passed in PIL cases, the Supreme Court elaborated on the general positive interpretation on right to life under Article 21 of Constitution, as being a right beyond protection of life and survival and extending to the essential attributes of life with dignity, among which health was directly or indirectly covered. For instance, way back in the early 1980s, Supreme Court held in Francis Coralie v. Union Territory of Delhi29 that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, free movement and co-mingling with fellow human begins. Many years later, it was in the same vein that Supreme Court interpreted right to life in the Chameli Singh v. State of UP: Right to life guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter…. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights or under the Constitution of India cannot be exercised without these basic human rights.30

In Paramanand Katara v. Union of India31 the Supreme Court recognised the right to emergency health care stating: ‘[E]very injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death.’ From the 1990s came a string of judgements of Supreme Court, specifically dealing with various aspects of right to health care, again under the PIL jurisprudence on fundamental right to life under Article 21 of

216

Shruti Pandey

the Indian Constitution. The most cited amongst them is the judgement in Paschim Banga Khet Mazdoor Samity and others v. State of West Bengal and another,32 where, in the context of medical establishments’ absolute responsibility to provide emergency medical care to safeguard every person’s right to life in the country, the Supreme Court of India passed a series of operative directions, while it stated the principle as: Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state.… Article 21 imposes an obligation on the State to safeguard the right to life of every person.… The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.

From the 1990s, the Supreme Court and high courts have regularly read the right to health and health care under right to life under Article 21 of Constitution, some of which are as follows: that the right to health is a fundamental right was held in CESC Ltd v. Subhash Chandra Bose;33 that everyone is entitled to adequate health care was held in Mahendra Pratap Singh v. Orissa State;34 that health and health care of workers is an essential component of right to life was held in CERC v. Union of India,35 Kirloskar Brothers Ltd v. Employees’ State Insurance Corporation36 and in State of Punjab and others v. Mohinder Singh Chawla and Ors;37 that right to health care of government employees is integral to right to life was held in State of Punjab v. Mohinder Singh Chawla.38

Underlying Determinants to Health The Supreme Court has also looked at right to health within a larger understanding that is inclusive of the right to underlying determinants to health. Some of the important fundamental rights which have thus been recognised as part of right to life under Article 21 of Constitution and which are pertinent to right to health are: right to food (People’s Union for Civil Liberties v. Union of India and Ors39); right to pollution-free water and air (Subhash Kumar v. State of Bihar40); right against environmental, ecological,

Women’s Health and Law in India

217

air and water pollution (Virender Gaur v. State of Haryana41); right to clean water (Attakoya Thangal v. Union of India42); right to sanitation (Municipal Council, Ratlam v. Vardhichand and Ors43); right to housing (for instance in Shantistar Builders v. Narayan Khimalal Tortame,44 P.G. Gupta v. State of Gujarat,45 Chameli Singh v. State of UP,46 Nawab Khan’s case: Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors47); right to education (Bandhua Mukti Morcha v. Union of India,48 Mohini Jain v. State of Karnataka49 and Unnikrishnan J.P. and Ors v. State of Andhra Pradesh and Ors50) and so on.

Judgements on or Relating to Women’s Health Rights It is only in the last decade that the number of women’s health rights issues reaching the portals of our judiciary for their resolution have slowly risen. Many of them have not been litigated as cases of women’s health rights, but as other issues, though they have direct impact on women’s health and lives. Matching this somewhat inconsistent trend in litigation, so far the judicial responses to them have also been largely a medley—some regressive, some lacking in maturity, some showing a surprising level of maturity and some which are outstanding and brilliant; it is still hard to describe the judgements on women’s health in one general direction. An instance of regressive judgements is Javed v. State of Haryana and Ors51 which clubbed more than 200 writ petitions and appeals against a provision in a state law disqualifying persons having more than two living children from contesting in local elections, justified by government for the purpose controlling population. It led to a disappointing verdict by the Supreme Court upholding the provision as constitutional, fair, and non-discriminatory, since it sought to achieve ‘a laudable purpose— socio-economic welfare and health care of the masses’. This judgement is not just a misplaced notion of uncontrolled population growth and unwarranted fear of a “disaster” resulting from that, it is a direct setback to every individual, especially those from the economically and socially disadvantaged sections of population who face child mortality and have poor access to health and contraceptive services. For the same reason, it especially impacts women in many adverse ways. The judgement also shows a lack of understanding of the politics of population policy and the

218

Shruti Pandey

paranoia of population explosion, as well as its connection with well-being, health and survival and with access to health and family planning services. On the other hand, Supreme Court and high courts have been extremely alert to the politics of “honour killings” and have been responding to young petitioners, both men and women, for their protection against persecution by their family and community members when they choose their life partners against social norms. In these cases,52 the courts have consistently passed strong orders in favour of the young persons and their right to choice and against their family and community members. These strings of judgements are extremely supportive of right to sexual autonomy, a vital component of right to health of both men and women. In a particular case relating to right to choice, that came to Supreme Court, from the High Court of Punjab and Haryana, the facts were especially very complex.53 In this case, a Division Bench of the High Court of Punjab and Haryana54 had ruled that it was in the best interests of a mentally retarded woman to undergo an abortion. The woman had become pregnant as a result of her rape while she was an inmate at a governmentrun welfare institution located in Chandigarh. After the discovery of her pregnancy, the Chandigarh Administration approached the High Court seeking approval for the termination of her pregnancy, keeping in mind that in addition to being mentally retarded she was also an orphan who did not have any parent or guardian to look after her or her prospective child. The High Court constituted an expert body consisting of medical experts and a judicial officer for a thorough examination of the facts. Despite the expert body’s findings that the victim had expressed her willingness to bear a child and that she was medically fit to continue the pregnancy and bear the child, the High Court directed the termination of the pregnancy.55 Several interest groups got involved in this case—disability rights, mental health, abortion rights, pro-life, women’s rights—as it involved a woman’s right to determination regarding the question of continuation of her pregnancy or abortion, when she was a mentally retarded orphan (barely a major, at 19 years of age then) with low capacities of judgement and the pregnancy had resulted from her rape in a state home for destitute women. The poignant aspect was she herself wanted to continue it, despite all odds of her mental retardation, poverty, destitution and uncertainty about the child’s health. The Supreme Court handed a judgement strongly upholding the woman’s right to choice as the supreme consideration:

Women’s Health and Law in India

219

Even though the Expert Body’s findings were in favour of continuation of the pregnancy, the High Court decided to direct the termination of the same in its order dated 17.7.2009. We disagree with this conclusion since the victim had clearly expressed her willingness to bear a child. Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter. We have adopted this position since the applicable statute clearly contemplates that even a woman who is found to be “mentally retarded” should give her consent for the termination of a pregnancy.56

The Court further confirmed its enunciation of the women’s absolute right to choice regarding her own fertility and procreation, both in positive and negative ways: [T]here is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.57

However, aberrations have also surfaced every now and then—in one case, the Supreme Court stated that if a woman or man undergoes a sterilisation or vasectomy or if the woman undergoes abortion, without the spouse’s consent, that would amount to mental cruelty against the spouse as a ground for divorce58—clearly, the right to choice argument did not go down well in this case. In some cases, where women’s health issues were specifically involved, Supreme Court’s response or intervention was undoubtedly positive—for instance in the case involving non-implementation of government’s own guidelines on safe and non-coercive sterilisation surgeries on women, the Court has passed series of orders, even going beyond the guidelines.

220

Shruti Pandey

Not all of them have proven to create positive outcomes, some of the responses ended up factually over-reaching and while it could have used standard setting language which it did not use, there is no doubting the Court’s concern for safeguarding the women’s lives and health in right earnest.59 In another case which pertained to launch of trials of Net-En, contraceptive injectables, by Indian Council of Medical Research, without informed consent of the women, Court seems to have played a role in extracting an undertaking from government to not allow Net-en’s mass use in its programmes and to introduce it only where adequate facilities for counselling and follow-up were available.60

Case Study 2: Judgement on maternal health, passed by the Delhi High Court61 in Laxmi Mandal v. Deen Dayal Harinagar Hospital and Ors62 and in Jaitun v. Maternity Home MCD, Jangpura and Ors63 This judgement (in which both cases were clubbed) is being elucidated as a case study of a notable positive judicial response in recent times, in a specifically women’s health related case, which has far-reaching jurisprudential value.

Facts of Shanti Devi’s Case This case was originally filed in December 2008. At that time, Shanti Devi, wife of a migrant worker from Bihar, was living in Faridabad, Haryana. Shanti had miscarried in the seventh month of her fifth pregnancy, as she was suffering from severe oedema, anaemia and fever and finally she had fallen from the staircase. She could be taken to the hospital by her husband only after a period of two weeks, as they did not have the necessary wherewithal. By that time, the baby had died. She was made to run from one hospital to another in that condition in Faridabad and neighbouring Delhi, in the course of which huge amounts of money were demanded

Women’s Health and Law in India

221

from her husband for providing treatment, even though she had the card certifying her to be a person living “below poverty line” (BPL) which entitled her to free treatment and care. She was finally treated at a government hospital in Delhi and the dead foetus was removed from her body. The writ petition had originally been filed for compensation and for directions to the state to implement its health programmes. The Court had passed an order for her to be admitted and treated free of cost in a government hospital. While the case was still pending for further directions, Shanti again became pregnant for the sixth time, and on 28 January 2010 she died after giving birth to a premature baby. This time she had delivered at home without the presence of a skilled birth attendant. The daughter from Shanti’s sixth pregnancy was admitted at a government hospital at Faridabad, Haryana. However, it was feared that the hospital could turn out the baby as the father did not have a BPL ration card issued in Haryana. The Court passed an order on the same day, 28th January 2010, in view of the urgency, directing the government to arrange for transportation of the new born baby of late Shanti Devi in an emergency ambulance, which was properly equipped with an incubator (since the baby was stated to have been delivered premature), from the General Hospital at Faridabad to the neonatology/paediatrics wing of the Maulana Azad Medical College Hospital or any other appropriate government hospital in Delhi, so that she could continue to receive treatment. A month later, the Court also accepted the plea of the petitioners for conducting maternal audit regarding the death of Shanti Devi. The finding of the audit report was that the direct cause of Shanti Devi’s death was extensive post-partum haemorrhage (PPH) with retained placenta, along with many indirect and contributing factors to her death. The other factors broadly included her dismal socio-economic status which denied her access to needed resources and services, and her poor health condition due to anaemia, tuberculosis and repeated, unsafe pregnancies, and lastly, the absent or poor response of the state health system.

Facts of Fatema and Alisha’s Case Fatema, daughter of a petitioner Jaitun, was a poor, uneducated woman and suffered from epileptic seizures. She was homeless and lived under

222

Shruti Pandey

a tree in Jangpura in New Delhi. Her husband abandoned her after she became pregnant. On two occasions, Fatema went to a maternity home run by the Municipal Corporation of Delhi (MCD), Jangpura for vaccination, and inquired about the cash benefits that she could avail upon delivery. However, she received no assistance from the authorities. On 29 May 2009, Fatema delivered her child, Alisha, under a tree and in full public view, without access to skilled health care and medical guidance. Subsequently, on the same day, her mother Jaitun informed the maternity home of the delivery. However, no visit was made by the staff of the hospital. On 3 June 2009, Jaitun and Fatema themselves went to the MCD maternity home, with the newborn, but the child was not given any medical care or services that she was entitled to under the government programme. On 5th June 2009, Fatema was administered medicines and issued a discharge slip, which the staff of the MCD maternity home explained, was the only way for her to get a birth certificate for her daughter and to get a cash assistance under the government scheme. Jaitun and Fatema made a number of visits thereafter to the maternity home but were refused payment. It appears that ultimately Jaitun was able to get Rs 550 primarily due to the intervention of a social activist. Despite repeated requests, Fatema never received transportation costs to and from the maternity hospital, though she was entitled to them. A writ petition was then filed by Jaitun for compensation, proper implementation of government schemes and providing Fatema and her daughter with nutrition and health care. By that time Fatema’s health condition had significantly deteriorated but she had still not been visited by any health worker; neither Fatema nor her child received the benefits under the various government schemes. The Court took up these cases together as both the cases highlighted the common systemic failures resulting in denial of rights to the two mothers, who were living BPL, during their pregnancy and immediately after that and the deficiencies in the implementation of a cluster of schemes, funded by the Government of India, which were meant to reduce infant and maternal mortality, viz., the Janani Suraksha Yojana (JSY),64 the Integrated Child Development Scheme (ICDS),65 the National Maternity Benefit Scheme (NMBS)66 the Antyodaya Anna Yojana (AAY).67 The interrelatedness of these schemes was also reiterated by the Court.

Women’s Health and Law in India

223

The Court noted that: Although the chief protagonists in the two petitions are the two mothers and their babies, the petitions highlight the gaps in implementation that affect a large number of similarly placed women and children elsewhere in the country … These petitions are essentially about the protection and enforcement of the basic, fundamental and human right to life under Article 21 of the Constitution. These petitions focus on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother. The other right which calls for immediate protection and enforcement in the context of the poor is the right to food.68

The Court firmly negatived a contention raised by the government that the numerous documentary requirements were essential since the schemes could be “misused” by people: An argument was advanced by Mr. A.S. Chandhiok, learned Additional Solicitor General (ASG) by drawing an analogy with the allotment of alternate accommodation to a slum dweller, that there is an apprehension that the benefit under the scheme would be “misused”. This Court finds this apprehension to be misplaced. Given the status of the facilities available in Government hospitals and primary health centres across the country, it is very unlikely that any person who can otherwise afford health care is going to “misuse” these facilities. On the other hand, when it comes to the question of public health, no woman, more so a pregnant woman should be denied the facility of treatment at any stage irrespective of her social and economic background. This is the primary function in the public health services. This is where the inalienable right to health which is so inherent to the right to life gets enforced. There cannot be a situation where a pregnant woman who is in need of care and assistance is turned away from a Government health facility only on the ground that she has not been able to demonstrate her BPL status or her “eligibility”. The approach of the Government, both at the Centre and the States, in operationalising the schemes should be to ensure that as many people as possible get “covered” by the scheme and are not “denied”the benefits of the scheme. Instead of making it easier for poor persons to avail of the benefits, the efforts at present seem to be to insist upon documentation to prove their status as “poor” and “disadvantaged”. This onerous burden on them to prove that they are the persons in need of urgent medical assistance constitutes a major barrier to their availing of the services. This is one reason why the coverage

224

Shruti Pandey

under the schemes has been poor in all these years and has required active intervention by the Supreme Court.69

The Court made a clear finding in the case of Shanti Devi’s death: What is clear in Shanti Devi’s case is that the maternal mortality was clearly avoidable.70

In the case of Fatema, the Court said: It is well possible that but for the Court’s intervention, the baby and the mother may have been deprived of the benefits which would have caused irreparable injury and possibly loss of life.71

While noting the difficulty in quantifying the actual loss suffered by both families as a result of the failure by the state government to deliver the benefits under the schemes to each of these women during their pregnancies, the Court issued three sets of directions. The first set comprised a series of orders awarding damages towards restoration, reparation and compensation and for the survivors’ future entitlements under the aforementioned schemes. Another set of directions were regarding “shortcomings in the implementation of the schemes”, with innovative recommendations made by the Court. For instance, the Court suggested that there must be “portability” of the schemes across the states, as Shanti Devi’s case involved the issue of inter-state migrants’ citizenship documentation. The Court also directed that the necessary clarification be immediately issued by the central government to all the state governments with regard to availability of benefits irrespective of the number of live births or the age of the mother, as that confusion is a major reason because of which pregnant women across the country are denied cash assistance. Issues such as overlap of the schemes, the system of administering the schemes the system of referrals, safe and prompt transportation of pregnant women from their places of residence to public health institutions or private hospitals and vice-versa, the health information management system were highlighted, for the government to put in place corrective measures around them. In the end, some other “general directions” were also passed by the Court, addressing the operational hurdles that are commonly observed in the implementation of schemes.

Women’s Health and Law in India

225

This judgement encompasses an entire array of factors in laying down a comprehensive conceptual and operational framework of right to maternal health and survival and the state responsibility and accountability for addressing preventable maternal mortality and morbidity. While responding to the particular facts of the case, it is also couched in a way that reiterates all the legal standards—international, constitutional as well drawing from Supreme Court’s rulings—that launches an unequivocal jurisprudence that would guide all cases of maternal mortality and morbidity in future. Operative parts of this judgement are exhaustive and rooted in reality, rather than in an ideal world—this judgement, therefore, also speaks to the need for the courts to pass enforceable judgements than merely declaratory ones. It is a scintillating instance of how legal recognition of a women’s health issue (in this case, women’s maternal health issues) can be steered through judicial intervention, in the absence of any statutory framework. Finally, it marks the reaching of a level of maturity and sensitivity, of both litigating lawyers as well as the judiciary of India, around women’s health rights as a special area of health rights, which would positively influence the outcome of every maternal health case that is brought to the Court in future.

Socio-legal Advocacies on Women’s Health Rights Issues Indian social activists and advocates show an ambivalent attitude towards law. Often, demands for enactment of law and legal recognition of rights figure prominently in their campaigns. At the same time, they seem disenchanted with law as a solution to social issues and even prefer to eschew its use, especially for litigation. As far as Indian government is concerned, it seems to be unusually keen to pass laws to address social issues. The reasons for that are many, which include international showcasing and stalling social movements. The civil society’s circumspection around law and litigation is, therefore, understandable—while they appreciate that law is increasingly emerging as a site for negotiating rights, they are rightly frustrated or perplexed by the enforcement challenges of legislation due to poor drafting or poor resource allocations or just lack of political will.

226

Shruti Pandey

Similarly, recourse to litigation often seems speculative as the courts’ responses differ widely on every possible variable. This only means that the civil society activists have to be better prepared in their legal advocacies, even as they continue to engage with law and litigation in ways that bring them gains; the synergies between movements and social justice lawyers also need to be strengthened. There are some notable examples of such maturity, for instance, the concerted work around government’s draft bill on ARTs, which is ostensibly meant to regulate the ARTs, but actually seems to be facilitating their inroads in India. Women’s groups and health rights groups of the country have undertaken meticulous monitoring of the bill’s progress and evolution, building knowledge on the issues, dissemination through media and stakeholders consultations, keeping the dialogue with the government open and utilising every opportunity that comes their way through the channel of “participation” which the government commonly offers and so on. There are many lessons in using these strategies for other issues that would enter legal arena in future.

Case Study 3: Fragmented/ Vertical Activism on Adverse Sex-ratio and Right to Abortion This is a case study which offers lessons in the negative. The obvious and undeniable link between the two issues—adverse sex ratio72 and right to abortion—is that the drop in the sex ratio could not have been actually caused unless the sex determination tests are followed by abortion of the unwanted female foetus, if the test reveals the sex of the foetus as female. This link leads many people, including those working for women’s rights, to derive some straight inferences—firstly, many assume that the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act), 1994, illegalises and criminalises what are termed as “sex-selective abortions”, while actually the law illegalises only sex determination (and pre-birth sex selection) and not the abortion per se. This is not a careless omission, but a thoughtful and deliberate silence in the statute with the mature understanding that came from active civil society participation, that the two issues should not be confounded. This is one reason why the entire process of PCPNDT Act’s implementation

Women’s Health and Law in India

227

is focused on the point of sex determination and not on the place of abortion. However, the activists working solely on the adverse sex ratio issue have been demanding the curbs on abortion rights to check the decline in sex ratio. What is not understood by these activists is that these amendments would lead to further curbs in the access of abortion services, which in any case have not been very accessible in the country due to the conditionalities in the MTP Act, as noted in this chapter’s earlier section on legislation. The direct impact of banning or illegalising “sex-selective abortion” would be the beginning of the end of all abortions in the country. Indeed, in some states’ government facilities, all the second trimester abortions across board have been stopped due to the fear caused on the issue of sex ratio and the providers fearing prosecution on charges of carrying out sex-selective abortions. In the process, Indian women would lose a valuable right to control their own fertility and lives. Importantly, with that, all abortions would be swept underground even more than they are now, and therefore unsafe. Experiences from all across the world have shown that making abortions illegal does not stop abortions, it only pushes abortions underground. The number of unsafe abortions carried out by untrained persons or in unsafe conditions increases as access to abortions becomes even more difficult. Also, in any case, focusing on curbing “sex selective abortions” in contrast to a focus on curbing sex determination is unlikely to be an effective strategy to even address the issue of adverse sex ratio. It is difficult, indeed impossible, to determine which abortion is “sex selective”. Clearly every abortion of female foetus is not sex selective, only those abortions of female foetuses that are carried out due to the sex of the foetus are sex selective. But how does one practically prove this at the point of abortion? There have been suggestions by those concerned with the issue of sex ratio that all pregnancies and all abortions be tracked to check for the reasons for abortion. Therefore, practically, every abortion then becomes suspect and liable to be illegalised, even if the motive is to curb “sex-selective” abortion. Conversely, with the focus on abortions instead of on the misuse of medical technology for sex determination and selection, in reality, both the “sex-selective” abortions and other abortions would continue illegally: the declining sex ratio would continue to decline further through illegal sex-selective abortions and all abortions would be less accessible and

228

Shruti Pandey

more unsafe. Most definitely, neither of the two causes, either sex ratio or abortion rights, would be protected. There is, therefore, a compelling case to address the two together instead of as mutually competitive. Rather than track and check all pregnancies and abortions, it is practically viable as well as strategically advisable to check the misuse of technology by doctors for carrying out sex determination as a medical malpractice—it would reduce the monitoring to be carried out to a much smaller scale which is doable if there is will, while ruling out the need for former, which impinges severely on abortion as another vital right of women. The way forward is to keep the abortion rights intact, while ensuring stricter implementation of the PCPNDT Act on the front of sex determination, and even within that to focus legal action only on the supply side by penalising the providers indulging in misuse of medical technology and medical malpractice, while also simultaneously stepping up the role of social movements and processes against the problems of son preference. Ironically, the demands to legally link up the two issues came, in various shades, from within the sections of Indian women’s rights movement itself, who failed to make this distinction and to see the danger in focusing on sex-selective abortion instead of sex determination. Many of them used the language of female “foeticide” (in Hindi bhroon “hatya”) or “killing” of female foetuses, to address this issue, thus concentrating totally on sex-selective abortions. There is evidence that messages related to the illegality of sex selective abortion conveniently or inadvertently merge into illegality of abortion and that the language of sex-selective abortion threatens women’s reproductive rights as it threatens access to abortion. Particularly, the activists working on the sex-ratio issue have failed to look at sex determination from a broader women’s rights and genderdiscrimination perspective. They have also failed to situate it within the abortion rights discourse where it is actually located, since the woman’s right to abort includes her right not to abort or more clearly put, her right not to be forced to abort (in this case due to the foetus being a female foetus)—giving the woman the “choice” of continuing or discontinuing the pregnancy. Within this perspective, while sex determination/selection is definitely a gender-discrimination issue, it has to be seen not as discrimination against unborn female foetus, but as discrimination against the woman/mother as she is directly (by husband, in-laws) or indirectly (under social expectations and pressures) being forced to abort, many

Women’s Health and Law in India

229

times repeatedly, which also takes a heavy toll on her health, apart from violating her lesser recognised right to self-determination and control of her fertility. Directly, this means that women are not to be penalised under either the PCPNDT Act or the MTP Act. For the purposes of looking at the intersection between sex selection and abortion rights, this would mean that unless the element of force or coercion is made out by the woman herself, even a “sex-selective abortion” is totally legal on part of the woman. This in turn would mean that it must remain in the hands of the woman to complain and it would not lie with the society to screen and track pregnancies and abortions, without any regard for women’s rights of privacy, confidentiality, dignity, apart from autonomy, as is being done in some parts of the country already. For instance, in Nawanshahar District in Punjab, abortions were being socially “mourned” with white bands outside the houses of the women, at the instance of the district administration’s zeal to arrest decline in sex ratio.73 More recently there have been reports of some state governments’ move to stop second trimester abortions altogether, and inclination of Union Ministry of Women and Child Development to track/monitor all pregnancies and abortions. While it remains most urgent that we continue to explore the modalities for more effective checks and measures to stop pre-birth sex selection and sex determination and to strictly implement the PCPNDT Act, it is extremely important that all activists remain alert to the politics and very real dangers of pitting the unborn female foetus’ right to life against the mother’s right to her body. With the increasing sway of rightist forces, there are many vested interests which are deliberately confounding the two, taking advantage of the confusion among the women’s rights and civil society advocates, pitting them against each other. These regressive forces have often articulated a language along these lines and have openly asked for even the limited abortion rights of Indian women to be taken away under the pretext of checking the decline in sex ratio. It is, therefore, crucial to remain alert and cautious in this regard and to avoid use of any language that condemns “killing” of unborn girl child or postulate female foetus’ “right to be born” or her “right to life”. Fortunately, in recent years, most women’s groups have slowly realised their fault in using divided approaches to these issues. However, some

230

Shruti Pandey

social activists still do not and the danger to abortion rights continues due to the pressure of declining sex ratio. Prompted by misinformed interests, this fallacy keeps raising its head in our courts and the corridors of state health departments. Recently, a committee was constituted by the Government of Maharashtra, with Dr Sanjay Oak74 as its chair, to look into the issue of “control of unauthorised MTPs in the State of Maharashtra”, as there was mounting concern for declining sex ratio due to “unauthorised” abortions. The committee stated upfront75: ‘[W]hile the committee appreciated the golden objective to restore the male to female ratio, overzealous measures to curb the sex selection should not prove to be a tool for unsafe and illegal abortions’, This single statement clearly depicts how overzealous advocacy on sex ratio alone, by curbing abortions, is leading to abortion services being provided “illegally” (i.e., not under the MTP Act) and, therefore, without safeguards for safety. It is important to note that the constitution of this committee itself was caused by the growing clash between the two issues due to anti-abortion campaigns by those ostensibly advocating for measures to arrest decline of sex ratio—it was, therefore, mandated to find ways of stopping the unauthorised provision of abortion services to eliminate female foetuses. In July 2012, there were reports of the PCPNDT Implementation Committees in Aurangabad District of the state going on overdrive and sealing sonography machines indiscriminately and across board without linking the use with sex determination tests. This led to protests by the State Gynaecologists and Obstetricians Association and their decision to voluntarily stop providing abortion services and conducting sonography totally so as to avoid harassment. In its report, the Oak Committee said: ‘It is important that abortion providers are not isolated and targeted as this would directly reduce access to safe abortion for women.’ It further recommended that dialogue between various groups that work to implement the PCPNDT Act and the MTP Act should be encouraged and undertaken to reach consensus on addressing both issues without hindering either. Policies need to ensure that measures for preventing sex selective abortion do not affect access to safe abortion care.

This was followed by detailed suggestions on a balanced and mutually harmonious use of both laws.

Women’s Health and Law in India

231

This case, therefore, remains an instructive study of the dangers when the socio-legal advocacies are carried out in isolation of each other and when activists pursue narrow legal ambitions without looking at the larger legal context and implications, and without building an integrated legal response to complex interlinking of issues or competing rights, as in this case, which involves what are essentially two facets of the common rights of health, survival, equality and dignity of all women.

Conclusion Health is determined by and is a determinant of every other human right—it is truly an umbrella right. There is an increasing standard-setting towards legal recognition of the socio-economic underpinnings of right to health in the international arena. The UN Committee on economic, social and cultural rights recommends that issues as wide and intersectoral as health must be legislated upon through “framework laws”. Within India, with the Constitutional amendment creating a new fundamental right to education (Article 21A), there is now a precedent to recognise basic social services as fundamental rights. In any case, the various judicial verdicts combine to considerably establish right to health as an integral part of right to life and, therefore, a legally enforceable fundamental right, and they have also increasingly been addressing women’s right to health in special ways. Together, all these form an appropriate context towards higher legal recognition of right to health as a statutory right and perhaps even constitutionally recognised fundamental right. There is also broad social and institutional consensus today that while law can be a barrier, it can also be a hugely transformative tool, especially in catalysing social and economic redistributive justice, including in the area of health. In recent years, there has been a growing demand from people of India for legal recognition of “Right to Health Care” and other health rights. JSA, the Indian chapter of global People’s Health Movement (PHM) has been leading this demand. In December 2004, a national public hearing on the right to health care was conducted in New Delhi by the National Human Rights Commission (NHRC) and JSA, as the culmination of a series of five regional public hearings held earlier. This led to a range

232

Shruti Pandey

of recommendations to the Government of India, including enactment of a national law enshrining health rights of all citizens concerning the public health system.76 In 2009, JSA renewed this demand in its “People’s Health Manifesto”,77 to ‘enact the National Health Act to guarantee the right to comprehensive, quality health care at public expense in relevant health institutions to all, where everyone is entitled to the full range of guaranteed, free health services’. The Indian government has also been preparing the ground for legal recognition of right to health through its policies and programmes, the latest being the NRHM which prominently features the Charter of Citizen’s Health Rights and Concrete Service Guarantees. The Ministry of Health and Family Welfare of the Government of India also steered the drafting of a National Health Bill,78 while state of Assam has already adapted it to enact its state legislation.79 Most recently, the Planning Commission of India has steered deliberations to usher in a regime of Universal Health Care80 in India. On the other hand, the immensely influential private health care sector of India, pharmaceutical and the health insurance companies, comprising both indigenous and multinational corporate players, have been aggressively trying to preserve and enlarge their business interests and ambitions. They have been stalling any move towards state-provided universal health care, vehemently arguing that against the state on the grounds of “efficiency” and “quality”. The insidious concept of “managed care”81 has been formulated by them in this context, which is to pull the government away from its obligations for health care services and replace it with market and profit-driven private health care. Their clout can be seen in the fact that ironically now the Planning Commission of India seems to be entirely toeing this line, sparking a confrontation between the Planning Commission and Union Health Ministry.82 While this tug of war jeopardises every Indian’s right to health and health care, especially the legal recognition of women’s health rights remains even more tenuous, as the muscle-flexing market threatens to join forces with the status quoist duo of the institutions of law and patriarchy to push her to the end of the queue. Unless, of course, if there is an opportunity to commodify her body in the name of health care.

Women’s Health and Law in India

233

List of Case Citations Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan & Ors (1997) 11 SCC 121. Attakoya Thangal Vs. Union of India 1990(1) KLT 580. Bandhua Mukti Morcha vs. Union of India (1984) 3 SCC 161. CERC vs. Union of India (1995)3 SCC 42. CESC Ltd. vs. Subhash Chandra Bose AIR 1992 SC 573. Chameli Singh vs. State of U.P (1996) 2 SCC 549. Francis Coralie v. Union Territory of Delhi (1981) 1 SCC 608. Jaitun vs. Maternity Home MCD, Jangpura & Ors W.P. (C) 10700/2009. Javed vs. State of Haryana & Ors AIR 2003 SC 3057. Kirloskar Brothers Ltd. vs. Employees’ State Insurance Corporation (1996) 2 SCC 682. Laxmi Mandal vs. Deen Dayal Harinagar Hospital & Others and Jaitun vs. Maternity Home MCD, Jangpura & Ors, 172 (2010) DLT 9. Laxmi Mandal vs. Deen Dayal Harinagar Hospital and Others, W.P. (C) 8853/2008. Mahendra Pratap Singh vs. Orissa State AIR 1997 Ori37. Mohini Jain vs. State of Karnataka (1992) 3 SCC 666. Municipal Council Ratlam vs Vardhichand and Others, 1980 CriLJ 1075. Naz Foundation vs Government of NCT of Delhi and Others, 2009 (160) DLT 277. P.G. Gupta vs. State of Gujarat (1995) Supp 2 SCC 182. Paramanand Katara v. Union of India (1989) 4 SCC 286. Paschim Banga Khet Mazdoor Samity and others vs. State of West Bengal and another (1996) 4 SCC 37. People’s Union for Civil Liberties v. Union of India & Ors Ongoing Writ Petition No. 196 of 2001 in Supreme Court. Ramakant Rai and Health Watch Up & Bihar vs. Union of India: WP No. 209 of 2003 (disposed of on 06/12/2007). Samar Ghosh vs. Jaya Ghosh: (2007) 4 SCC 511. Shantistar Builders vs. Narayan Khimalal Tortame (1990) 1 SCC 520. State of Punjab and others v. Mohinder Singh Chawla and Ors (1997) 2 SCC 83. Stri Shakti Sangathan vs. Union of India: WP No. 680 of 1996, decided on 24 August 2000. Subhash Kumar vs. State of Bihar AIR 1991 SC 420. Suchita Srivastava & Anr. vs Chandigarh Administration, (2009) 9 SCC 1. Unnikrishnan J.P. & Ors. vs. State of Andhra Pradesh & Ors (1993) 1 SCC 645. Virender Gaur vs. State of Haryana (1995) 2 SCC 577.

List of Abbreviations in Case Citations AIR CrLJ DLT KLT SCC

All India Reporter Criminal Law Journal Delhi Law Times Kerala Law Times Supreme Court Cases

234

Shruti Pandey

Notes 1. The flagship Reproductive and Child Health (RCH) Programme launched in two phases by the Ministry of Health and Family Welfare, Government of India, sets out its main objectives as: [T]o bring about a change in mainly three critical health indicators, i.e., reducing total fertility rate, infant mortality rate and maternal mortality rate with a view to realising the outcomes envisioned in the Millennium Development Goals, the National Population Policy 2000 and the 10th Plan Document, the National Health Policy 2002 and Vision 2020 India. (Available at http://mohfw.nic.in/NRHM/RCH/Index.htm, accessed on 22 July 2013). 2. According to the United Nation’s Millennium Development Goals Report of the UN Secretary General, 2012, India’s MMR has come down to 212 (maternal deaths per one lakh live births) in 2012, significantly reduced from 437 in 1999; but the country’s target is 109 per one lakh live births by 2015. Much to the alarm of policymakers, the Indian TFR (average number of children that would be born to a woman over her lifetime) has remained stagnant at 2.6 since 2009; in the beginning of 2012 the Indian health minister announced that perhaps a fall of 0.1 point has been achieved, while India should have reached ‘replacement-level fertility rate’ of 2.1 by 2010. 3. UN Committee on Economic, Social and Cultural Rights has authoritatively interpreted health in a much larger, non-medicalised, social framework, strongly linking it up with the underlying socio-economic and cultural determinants. The Committee has elaborated upon the ‘right to the highest attainable standard of health’ mandated under Article 12 of International Covenant on Economic, Social and Cultural Rights (ICESCR) to mean: [A]n inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions and access to health-related education and information, including on sexual and reproductive health. (Para 11, General Comment No. 14 [2000]) 4. Union of India is a signatory to various international treaties, agreements and declarations specifically undertaking to provide right to health, the more notable ones being: Universal Declaration of Human Rights (UDHR): Article 25 (1) (‘Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services’); ICESCR: Article 12 (‘Right of everyone to the enjoyment of the highest attainable standard of physical and mental health’); Convention on the Rights of the Child (CRC): Article 24; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Article 12; UN Convention on Rights of Persons with Disabilities (UNCRPD): Article 25.Ratification of International Human Rights Treaties—India lists the various instruments that India has

Women’s Health and Law in India

235

signed and ratified including the International Covenant on Civil and Political Rights (ICCPR) and ICESCR. Available at http://www.umn.edu/humanrts/research/ratificationindia.html, accessed on 22 July 2013. 5. National Rural Health Mission (NRHM) launched by the federal government in 2005 for five years and now extended for the duration of the 12th Five Year Plan of India (2012–2017), with plans for its expansion to cover urban health as well. NRHM is believed to be among the largest government programmes on health in the world. 6. In 2012, India was spending between 1 per cent and 1.4 per cent of its GDP on health care—Organisation for Economic Cooperation and Development says the Indian Government invests only 1 per cent of GDP on health care; the Public Health Foundation of India (PHFI) estimates it as 1.2 per cent of GDP; Indian prime minister has mentioned it to be 1.4 per cent. In any case, it is among the lowest in the world. In comparison, the public health expenditure in European countries is between 5 per cent and 9 per cent. Even in the neighbouring countries, the corresponding percentage is 1.8 (Sri Lanka), 2.3 (China) and 3.3 (Thailand). Available at http://www.benthamscience. com/open/tohspj/articles/V003/111TOHSPJ.pdf or http://www.oecd.org/newsroom/ healthspendingcontinuestooutpaceeconomicgrowthinmostoecdcountries.htm, accessed on 29 July 2013. 7. The UN Committee on Economic, Social and Cultural Rights has stated: The right to health is closely related to and dependent upon the realisation of other human rights, as contained in the International Bill of Rights, including … human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health. (General Comment No. 14 [2000], Para 3) 8. Ibid, paragraph 8: The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. 9. A report submitted by a high-level committee appointed by the Government of India, after seven Indian teenage girls in states of Andhra Pradesh and Gujarat died in 2010, while enrolled in an Human Papilloma Virus (HPV) vaccine trial testing the safety of vaccines manufactured by GlaxoSmithKline, Merck and Dohme, brought out findings of gross violations in the project and suspension of ethical standards. Though proclaimed as a ‘post-licensure observational study of HPV vaccination against cancer of the cervix’, the project, suspended in April 2010, following deaths and protests by women’s health groups, was indeed a phase III clinical trial conducted over 23,000 girls and needed to have followed protocols mandated by the Drugs and Cosmetics Act, 1954, which it did not, a government inquiry concluded.

236

10.

11. 12.

13.

Shruti Pandey In August 2012, the Lok Sabha was informed by the minster for health that 1,317 deaths took place during clinical trials in India in the last three years. Available at http:// www.thehindu.com/news/national/article3817639.ece, accessed on 22 July 2013. In October 2004, a national-level ‘People’s Tribunal on Coercive Population Policies and the Two-child Norm’ was organised by Human Rights Law Network with several non-governmental organizations (NGOs) of the country from 15 states where over 50 testimonies were led that showed how these policies adversely impacted particularly women and other poor and marginalised groups. The testimonies and recommendations of the eminent citizens on the panel can be found in the report ‘Coercion Versus Empowerment’ (New Delhi: Human Rights Law Network, 2006). In the following years since then, the population policies have continued to be coercive in various forms and continue to surface in various states from time to time. The Protection of Human Rights Act, 1993. (2009) 160 DLT 277—this case was brought before the Delhi High Court against the criminalisation of homosexuality through Section 377 of the IPC, an antiquated provision criminalising all forms of “unnatural sex”, which was frequently used to victimise homosexuals. The Delhi High Court, in this judgement, read down Section 377 to exclude all consensual adult sex from its purview. The Supreme Court has now concluded hearing the appeal against this verdict and has reserved its judgement. Article 47 of the Indian Constitution under the chapter on Directive Principles for State Policies states: Duty of the state to raise the level of nutrition and the standard of living and to improve health: The state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the state shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

There are some other directive principles that may be mentioned as relevant here, as they also urge the government to undertake responsibilities towards health, but again in broader terms, for instance, to eliminate inequalities in status, facilities and opportunities (Article 38); to strive to provide to everyone certain vital public health conditions such as health of workers, men, women and children (Article 39); right to work, to education and to public assistance in certain cases (Article 41); just and humane conditions of work and maternity relief (Article 42) and protect and improve environment (Article 48A). 14. The Constitution of India enumerates the separate and shared legislative powers of the Parliament and State legislatures in three lists in its Schedule VII: the Union List, the State List and the Concurrent List: (1) The Parliament and State legislatures share authority over matters on the Concurrent List; the health-related ones on Concurrent List include—health-related economic and social planning; population stabilisation and family planning; mental health; drugs; food safety; labour safety and welfare, including maternity benefits; prevention and control of communicable diseases or vectors affecting humans; registration of births and deaths and other vital statistics for health; social security and social insurance; employment; education; legal and medical professions. (2) Laws passed by the Parliament with respect to matters on the concurrent list supersede laws passed

Women’s Health and Law in India

15.

16. 17. 18. 19.

20. 21.

22. 23. 24. 25. 26.

27.

28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

237

by state legislatures. On the matters under Union List, the Parliament has total and absolute supremacy, on matters such as entering into and implementing international treaties and agreements, apart from some specifically health-related matters such as port quarantine, including hospitals connected therewith; seamen’s and marine hospitals; regulation of labour and safety in mines and oilfields. (3) The Parliament generally has no power to legislate on items from the State List, which include matters such as public health, hospitals and dispensaries, water and sanitation. General Comment 14 of ICESCR, elaborating on Article 12 of the ICESCR, paragraph 12. Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx, accessed on 22 July 2013. Ibid, paragraph 33. B. Ganatra. 2000. Abortion Research in India—What We Know and What We Need to Know. New Delhi and Jaipur: Rawat Publications. Office of Registrar, General of India, 2006. MTP Act, 1971: Section 3(4) (b) read with Form C under the MTP Rules, 2003. Section 3 (4) (a) carves the only two exceptions for minor and mentally ill women, whose consent is stipulated through their guardian. Ibid, Section 7, read with MTP Regulations, 2003. Ibid, Section 4, read with MTP Rules, 2003, especially Rules 4–8, together laying down conditions for certification of approval for the sites for carrying out abortions and specifying the qualifications of the provider. 312–316, IPC, 1860. Ibid, Section 3. Ibid, Section 3(3). Ibid, Section 3(2), Explanation 2. In a later section in this chapter, on socio-legal advocacy, the MTP Act would be discussed again as the access to abortion under this law faces another kind of challenge due to an ostensible competition of rights in the context of adverse sex ratio, which has sometimes been mis-described as a ‘female foetus’s right to be born’. In India, generally, PIL has a narrower and special meaning—it connotes the liberal mechanism by which the Supreme Court of India and the high courts can be approached, through the remedy of writ petitions for violation of a fundamental right (or, in high courts, for a vital legal right also) without the strict compliance of locus standi and many other technical requirements, for the issues related to a class of socially or economically disadvantaged persons. 1980 CriLJ 1075. (1981) 1 SCC 608. (1996) 2 SCC 549. (1989) 4 SCC682 . (1996) 4 SCC 37. AIR 1992 SC 573. AIR 1997 Ori 37. (1995)3 SCC 42. (1996) 2 SCC 682. (1997) 2 SCC 83. (1997) 2 SCC 83. Ongoing Writ Petition No. 196 of 2001 in Supreme Court. AIR 1991 SC 420.

238 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52.

53.

54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

65.

66. 67.

68. 69. 70. 71.

Shruti Pandey (1995) 2 SCC 577. 1990(1) KLT 580. 1980 CriLJ 1075. (1990) 1 SCC 520. (1995) Supp 2 SCC 182. (1996) 2 SCC 549. (1997) 11 SCC 121. (1984) 3 SCC 161. (1992) 3 SCC 666. (1993) 1 SCC 645. AIR 2003 SC 3057. For judgements of Supreme Court and high courts on the issue, see: Compendium of Judgements on Right to Choice in Relationships (AALI—Association for Advocacy and Legal Initiatives), 2012. Suchita Srivastava and Anr V. Chandigarh Administration, judgement and order dated 28 August 2009, by Supreme Court of India (Civil Appeal No. 5845 OF 2009, arising out of S.L.P. (C) No. 17985 of 2009): (2009) 9 SCC 1. In C.W.P. No. 8760 of 2009. Vide order dated 17 July 2009: (2009) 156 PLR 489. Ibid, paragraph 10. Ibid, paragraph 12. Samar Ghosh v. Jaya Ghosh: (2007) 4 SCC 511. Ramakant Rai and Health Watch up and Bihar v. Union of India: WP No. 209 of 2003 (disposed of on 6 December 2007). Stri Shakti Sangathan v. Union of India: WP No. 680 of 1996, decided on 24 August 2000. 172 (2010) DLT 9, per Justice S. Muralidhar, on 4 June 2010. W.P.(C) 8853/2008. W.P.(C) 10700/2009. Janani Suraksha Yojana (JSY) is a safe motherhood intervention scheme under the NRHM implemented with the objective of reducing maternal and neonatal mortality by promoting institutional delivery among the poor pregnant women. Launched on 12 April 2005, it is a 100 per cent centrally sponsored scheme and integrates cash schemes with delivery and post-delivery care. 66 Integrated Child Development Services (ICDS) Scheme is a federal scheme which was launched in 1975 to improve the nutritional and health status of children in the age group 0–6 years. National Maternity Benefit Scheme (NMBS) is a federal scheme that basically stipulates cash assistance of Rs 500 to every pregnant woman. Antyodaya Anna Yojana (AAY) is a scheme which provides for special quantities of rations including grains and nutritional supplements for the poorest of the poor such as the aged, infirm, disabled, destitute men and women, pregnant and lactating women, destitute women and persons of primitive tribes. Laxmi Mandal vs. Deen Dayal Harinagar Hospital & Others and Jaitun vs. Maternity Home MCD, Jangpura & Ors, 172 (2010) DLT 9, paragraph 2. Ibid, paragraph 48. Ibid, paragraph 53. Ibid, paragraph 54.

Women’s Health and Law in India

239

72. While sex ratio at birth (SRB), number of girls born per 1,000 boys born, in a healthy population should be around 950, in India there has been a drastic decline in the child sex ratio (number of girls per 1,000 boys for 0–6 years’ age group) in the last 50 years. This is the result of the logical progression of the sociocultural practice of son preference in India, which was historically manifested in female infanticide and general deprivation and disempowerment of women in Indian societies. Since the early 1980s, this practice began to also manifest in gross misuse of medical diagnostic technologies that made it possible to determine the sex of the foetus (prenatal sex determination) and later on, to even select the sex of the foetus (sex selection). From 976 girls per 1,000 boys in the year 1961, the number fell to 945 in 1991 and further declined to 927 in 2001, as revealed in the 10-yearly Census of India. In 2001, the child sex ratio was 754 in Fatehgarh Sahib (Punjab), 770 in Kurukshetra (Haryana), 798 in Mahesana (Gujarat). In affluent states such as Maharashtra, Gujarat, Punjab, Himachal Pradesh and Haryana, where people have much better access to technologies, there was more than 50 points decline in child sex ratio. 73. Using Songs and Shame to Restore Gender Balance, available at http://gulfnews.com/ news/world/india/using-songs-and-shame-to-restore-gender-balance-1.1054119, accessed on 22 July 2013. 74. Director (Medical Education and Major Hospitals), KEM Hospital, Mumbai. 75. Government of Maharashtra. 2011. ‘Report/Recommendations dated 17 October 2011 (Director/ME&MH/917)’, Oak Committee. Mumbai: Government of Maharashtra. 76. http://www.cehat.org/pubhearthc.htm, accessed on 22 July 2013. 77. http://docs.aidindia.org/Documents/AID-Resources/Ebooks/Peoples_Health_Manifesto_ JSA_2009.pdf, accessed on 22 July 2013. 78. Draft National Health Bill, http://www.prsindia.org/uploads/media///Draft_National_ Bill.pdf, accessed on 22 July 2013. 79. Assam Public Health Act, 2010. 80. Report dated November 2011, submitted by the High Level Expert Group (HLEG) on Universal Health Coverage (UHC) constituted by the Planning Commission of India in October 2010, available at http://uhc-india.org/reports/hleg_report.pdf, accessed on 22 July 2013. 81. The concept of managed care visualises government’s role in delivering primary health care as restricted to mere essentials such as antenatal care, leaving more lucrative medical treatment to a system where private players will compete with cash-strapped government-run hospitals. 82. A Planning Commission’s draft of the 12th Five Year Plan’s health chapter, finalised at the end of July 2012, envisages universal health insurance coverage by allowing a selected “network” of private and other operators to sell their services on competitive basis to the government for which they would be paid on what the health industry calls “capitation” basis or simply on fixed rates for different treatments for every person handled. The Commission’s proposal distorts what its HLEG on health reforms had said as recently as in November 2011 that health delivery services should be run by the government and only where a need arises, the government can hire private hospitals for which they would be paid on fixed basis. The private players would not be competing but filling the gap, which is also the position that the Union Health Ministry has been arguing for. Available at http://articles.timesofindia.indiatimes.com/2012-08-08/ india/33099834_1_high-level-expert-group-public-health-universal-health-insurancecoverage, accessed on 22 July 2013.

9

Prenatal Diagnosis: Where Do We Draw the Line?* Anita Ghai and Rachana Johri

Feminists in India have been concerned about the declining sex ratio in the country. The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 or PNDT Act, which outlaws sex-selective abortions, has been welcomed by feminists, even though they remain concerned with bottlenecks in its implementation. A relatively unnoticed but critical issue, however, is the possibly unwitting legitimisation of the abortion of potentially disabled children. This article endeavours to question the ideology that regards abortion as the only option when prenatal testing reveals a birth abnormality, an option sanctioned by the PNDT Act. We contend that disability is, to a great extent, socially constructed: its conceptualisation reflects societal attitudes that view the lives of disabled people as tragic, worthless and a burden. The article recognises the tension between the feminist and disability activists around the issue of women’s choice. These issues are discussed through the voices of the mothers of both non-disabled and disabled children in Delhi. We contend that: (1) the concept of individual choice, which is reified through the PNDT Act, is socially constructed and contextually located and (2) while a pro-choice perspective is important to feminists, the thoughtless use of prenatal testing could reduce, rather than expand, women’s choices.

* This essay was originally published in Indian Journal of Gender Studies, May/August 2008, 15(2): 291–316.

Prenatal Diagnosis

241

Introduction When prenatal diagnosis first became a part of the Indian reality, feminists were quick to point out that the techniques aimed to detect foetal abnormalities were also capable of providing information about the sex of the unborn child. It seemed evident to them that given the extremely patriarchal nature of much of Indian society and the marked preference for male children, such techniques were more likely to be used for sex-selective abortions. The history of the debates between the state and activists is well-known (Patel 2007, Rao 2004). Responding to the massive protest generated by the spread of sex-selective abortions, the central government passed the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act or PNDT Act in 1994. Despite the legal regulation, the 2001 Census showed an alarming decline in the juvenile sex ratio in the under-5 category.1 In 2003, a public interest litigation (PIL)2 prompted the central government to place the onus of action against providers of sex-selective abortions on the state governments. In recent years, there has been a noticeable increase in media attention, although criminal action3 against medical practitioners is only now becoming a reality. In this article, however, we are interested in exploring a less visible aspect of the PNDT Act. A careful reading of it shows that while selection on the grounds of sex is unambiguously banned, there is a positive sanctioning of selection on the basis of disability. Consequently, this results in the legitimisation of one kind of selection, that is, on the basis of disability, while prohibiting it on grounds of sex. The debate on whether selection on the grounds of disability should be legal evokes mixed reactions. The existing arguments suggest that antenatal screening is not understood in any uniform way, either within feminism or in the disability movement, particularly in India. While many scholars writing on the interface between feminism and disability activism see the right to abortion as creating a gulf between the two perspectives (Hubbard 1997, Shakespeare 1998, Sharp and Earle 2002), others (Parens and Asch 2000, McLaughlin 2003, Menon 2004) think that there is a possibility of reconciliation between the two apparently divergent perspectives. The former believe that for feminists the critical factor in all abortion debates is women’s uncontested right

242

Anita Ghai and Rachana Johri

to choose. Proponents of this perspective do acknowledge the fact that choice is not always unconditionally autonomous and free. However, many activists in the disability movement object to this unqualified right to abortion, as it has serious implications for the discrimination experienced by disabled persons.4 This anomaly has been noticed by feminists like Sunita Bandewar, who says: A new problem comes up when considering the right to abortions of a foetus with a disability. One might argue that the same reasoning can be applied: since women face the most profound impact of such children upon their birth, they should be the sole decision-makers to either continue or terminate pregnancy. (2005: 20)

This position potentially strengthens the normative conceptualisation of disability, which is value-laden. It sets a precedent for elimination of so-called unfit people. Nivedita Menon echoes both Sharp and Earle (2002) and Bandewar, when she warns that: Once we accept that there can be a hierarchy of human beings based on physical characteristics and that it is legitimate to withhold the right to be born to those at lower levels of this hierarchy, then this reasoning can be extended to other categories, whether female, inferior races or any other. (2004: 96)

One line of reasoning taken by pro-life supporters like Marsha Sexton (1998) and Mary Jane Owen (1992) is that the right to abortion is at the root of all discrimination against disabled persons. However, while we are of the opinion that women must retain an unfettered right to abortion, it is also apparent to us that the construction of abortion as individual choice needs considerable rethinking, since women face familial, social and cultural constraints in the exercise of free choice in their everyday lives. Data from across the world and particularly from India, show that even when the legal system allows abortion, many abortions are illegal, thus increasing the morbidity for women. In a review of several researches, Visaria et al. (2004) found that husbands and mothers-in-law play a predominant role in decision-making around abortion. Two other interesting features emerged from this review. First, women reported that while abortion is an immoral act per se, it could be condoned if it was performed for the sake of family honour. Second, women who opt for abortion after giving birth

Prenatal Diagnosis

243

to several daughters, receive more support than those who do so for other reasons. Many women also reported being forced violently to undergo abortions. Furthermore, in the case of sex determination and subsequent female foeticide, families make the decision after a cost-benefit analysis factoring in the relative long-term gains of saving on dowry. Feminists are, therefore, in the difficult position of supporting abortion, even while they recognise the limited agency that women possess in the exercise of free choice. The underlying logic is that abortion rights are necessary in an imperfect system, even where a woman has limited capacity to control her reproductive life. The question, both practical and ethical, is that if women have the right to choose, how can a distinction between abortion and selection be maintained? We believe that it is the category of the unborn child, the foetus, which is the critical variable in this debate. Before prenatal diagnosis came into routine use, debates around abortion focused almost exclusively on the mother’s ability to bear and rear a child. Such decisions were largely guided by the legitimacy of motherhood for the woman: they did not involve the “qualities” of the foetus. With the advent of prenatal diagnosis in clinical practice, the conception of the foetus has changed from a generic entity to one with specified properties. The first of these properties, namely, the sex of the child, has already shown itself to be problematic. The case of sex selection points to a critical need to differentiate between abortion and selection. The latter needs to be located within discussions of hegemonies of gender, normalcy and normativity, be it male sex or absence of disability. This article seeks to draw upon both the feminist and disability rights discourses to interrogate the unqualified right to abort foetuses with disability, as articulated in the PNDT Act.

Context of Sex Selection The Indian context provides us with a setting to reflect on the ethics of selection. Since sex selection is pervasive in India, feminists have had no choice but to grapple with the dialectic of structure and agency within which the issue is framed. The majority of feminists argue that since women possess limited agency, legal systems have to be strengthened to protect them. At the same time, as highlighted by Menon (2004),

244

Anita Ghai and Rachana Johri

individual women who have “opted” for sex selection should not be punished. Instead, the onus of responsibility lies with the medical practitioner who provides the information about the sex of the unborn child and the socio-cultural context that valorises sons over daughters. The intricacy of the issue is evident in the perspective of feminist Manjula Padmanabhan, who asks whether there can be: anything more grotesque than to be forced to carry an unwanted living presence within the sanctum of one’s own body? ... In a twisted sort of way, women who abort their female foetuses are voting against their own misogynist culture and in that sense, are subverting it.... Given the world we have now, it is far better to enable women to take this life-denying decision of their own accord under medically and legally safe conditions than to saddle them with babies whom they will revile and devalue as they were reviled and devalued. (1993)

It is important to understand the mindset of the woman who aborts her unborn daughter as a partial protest against her own oppression, because women do participate consciously in sex selection. In the absence of an alternative viewpoint, a woman, who is rejected for bringing yet another daughter into the world, is likely to hate her and see in her the reasons for her own oppression. When sex selection has evoked so much debate, the issue of selection on grounds of disability is clearly even more contentious. Again, central to this discussion is the difficulty in conceptualising women’s agency. Both the mother of an unwanted daughter and that of a disabled child face tremendous difficulties. To choose to give birth to a child with disability is to challenge dominant social constructions of both motherhood and childhood. If it is possible to argue that the desire to abort a female foetus arises from the conditions of patriarchy, is a similar logic not applicable to disability selection? We try to delineate this nuanced picture by drawing upon research on gender, motherhood and disability carried out by the two authors in the course of several research projects. We come to this debate from different vantage points: Anita Ghai is a disability researcher and activist and Rachana Johri, a researcher on motherhood. The article draws upon data from three qualitative research studies, primarily involving in-depth interviews with mothers. The first set of voices are from an ongoing study by Rachana Johri (2001) in which

Prenatal Diagnosis

245

mothers of young children are asked about the specific circumstances under which they would opt for abortion. One of the issues discussed in detail is what the informants would do in the face of a potentially disabled foetus. All the participants in this study are college-educated and belong to the urban middle classes. At the time of writing, interviews had been conducted with 20 mothers with one or two children. The selection of the participants was based on the age of their children. Thus, mothers with children below six were chosen as they are at the peak of their reproductive lives. A second data source is ongoing research in which 30 mothers of children with developmental disabilities are being interviewed. Again, the women belong to the middle class and are residents of Delhi. The third study that has been cited is research conducted by Sanjana Singh (2005) as part of her bachelor’s degree under the supervision of Anita Ghai. The participants were 14 visually impaired girls between the ages of 16 and 18 years studying in a residential school for the blind in Delhi. Among other issues on which detailed qualitative interviews were conducted, the students were also asked to respond to a dilemma about prenatal testing for the determination of potential disabilities. We argue that, as in many other issues, there is no homogenous or essential woman’s voice concerning the legitimisation of the abortion of a disabled foetus. Nonetheless, despite an absence of homogeneity, the dominant voice does favour abortion of the disabled foetus. Exploring the underlying reasons for justifying or rejecting such action helps to better comprehend the context in which such choices are made and to arrive at an alternative rendering of the question of abortion of disabled foetuses. In the remaining part of the article, our attempt is precisely to foreground the voices of a sample of women on disability selection and abortion. But before proceeding any further, it will be worthwhile to develop a better understanding of the dynamics of disability construction.

Medicalisation of Disability As Anita Ghai (2003) has argued elsewhere, part of the difficulty in understanding disability lies in that it is unequivocally embedded within the medical model. The location of the problems as residing within the

246

Anita Ghai and Rachana Johri

individual’s body perpetuates the image of the disabled person as sick, flawed, afflicted and suffering. Consequently, the medical model sees the availability of reproductive technologies, such as prenatal diagnosis, as a blessing that may pre-empt and consequently prevent congenital disability. This perspective is well represented in the advice columns of popular magazines like Parenting India. Responding to a query about the safety of ultrasound examination during pregnancy, the gynaecologist in the advice column begins by highlighting the benefits of ultrasound to detect the age of the foetus, its position and other features. Then, she proceeds to emphasise the need for a second ultrasound during the 13th week of pregnancy to: look for certain congenital abnormalities like Down’s syndrome or anencephaly.5 In these cases, timely intervention can prevent a lot of mental trauma to parents as these pregnancies can be easily terminated at that stage. A third ultrasound is done at 22 weeks as most organs have developed at that stage and parents can be given proper counselling. (2007: 97)

The discursive construction of the perfect pregnancy and, hence, the perfect child is apparent in this brief extract. Indeed, most medical professionals would not find this scenario exceptional. It is worth noting that the advice does not contain any information on the nature of disability, its severity and the possibility of raising a disabled child. If professionals, such as obstetricians and counsellors, are ethically committed to assisting prospective parents make informed choices, they should also provide detailed and reliable information about what life is like with a disabling condition, so that their clients can imagine the ways in which such a life can be both rewarding and difficult for themselves and their potentially disabled child. However, not only do medical professionals tend to medicalise non-medical conditions like normal pregnancy and menstruation, they adopt a directive approach when they should be helping clients engage in a process of autonomous decision-making. Thus, procedures like prenatal diagnoses are not only projected as usual, but highly necessary and desirable. Green (1994) studied consultant obstetricians and found that they favour selective abortion when they come across any foetal abnormality. Although Green’s research comes from a different cultural context, the power of medical discourse seems to be quite universal. This is evident in

Prenatal Diagnosis

247

the narratives of young mothers in our research, who were overwhelmingly in favour of aborting a disabled foetus. They were greatly influenced by medical practitioners who strongly urge pregnant women to have tests. The fact that doctors and genetic counsellors speak from the position of experts makes their suggestions all the more critical. As Puneeta, a homemaker with a 10-month-old daughter, puts it: “My doctor told me this when she sent me for the first ultrasound. ‘We want to check if there is any abnormality. After the third month if there is any abnormality, then abort the child.’” Thus, the medical discourse appears to “empower” couples by offering tests for a growing range of conditions. Medical professionals claim to provide non-directive counselling,6 enabling parents to make their own choices. Yet, the ethical issues and the theoretical and practical possibilities of non-directive counselling have remained largely uninterrogated. Recent research voices serious concerns about the extent to which a genetic counsellor simply reproduces the biases of the larger society. As Annette Patterson and Martha Satz point out: Serving both as purveyors of genetic information and as guides in decisionmaking, genetic counsellors often preside over prenatal sessions where parents are considering whether to continue or terminate pregnancy. This process has profound implications for society in shaping attitudes about what constitutes a “life ... worth living” and, potentially, the provisions society will make for those with disabilities. (2002: 119)

Examples abound of mothers who were told at the time of the birth of their disabled children that they would not survive for more than a few years or would show extremely poor intellectual development. Many such children have survived for years and often reached levels of capability exceeding medical expectations. A particularly poignant account is presented in the autobiographical film 39 Pounds of Love. Ami Ankilewitz7 was diagnosed with an extremely rare and often fatal form of spinal muscular atrophy that severely limits his physical growth and movement. He is 34 years old, having outlived the doctor’s prediction of his life expectancy by 28 years. The film follows Ami’s journey in search of the doctor who predicted his early demise. One of the mothers from the study on the choice of abortion being done by Johri, narrated the case of a friend who was advised to undergo

248

Anita Ghai and Rachana Johri

an abortion, but whose baby was ultimately born without any disability. It is clear that although medical knowledge is uncertain and disability is often used as a catch-all phrase for all kinds of avoidable conditions, experts push decisions towards abortion. With the detailed mapping of the human genome under way, medical technology will enable the detection of individual predispositions to a number of diseases, such as diabetes, depression, Alzheimer’s, heart disease, arthritis and breast cancer in the not so distant future. Will the fantasy of a perfectly able-bodied society entail the elimination of all foetuses predisposed to developing a spectrum of possible conditions?

Cost of Disability Yet another reason and possibly a very effective one, reminds parents that the rearing of a disabled child would invariably entail extra time, money and suffering8 for the child as well as the family. Multiple costs are involved in bringing up a child with disability, which may include emotional pain and suffering, loss of a child, loss of opportunities, loss of freedom, isolation, loneliness, fear, guilt, stigmatisation and financial hardship. In fact, people who argue in favour of disability selection often accuse activists of being insensitive to the “costs” to women that such a choice entails. As Rayna Rapp reminds us: Women judge the acceptability of specific foetuses for entry into their communities because there are so few limits on women’s responsibility for the quality of the life that the child would have. In other words, our gendered responsibilities for producing acceptable children as well as our embodied responsibilities for the pregnancies that produce them overdetermine our need to think deeply about the consequences of knowing about and possibility eliminating disability prenatally. (2000: 308)

Since patriarchy determines the social location of care, caretaking usually gets added to the unpaid labour of women in the home. As a result, it is both the disability as well as perpetual motherhood that shape genetic decision-making. The fear of extensive caretaking and responsibility are evident in the voices of the young mothers in our research. Sudha, a homemaker with a 4-year-old son, for example, was sure that she would

Prenatal Diagnosis

249

definitely have an abortion if she discovered that her unborn child might be disabled. She said, “There is no doubt about it. I am very clear about it.” Her clarity stems from the fact that her mother’s friend had a son who was intellectually challenged. She said: I’ve seen the mother suffering and the child suffering. Maybe it is not the case now because people are more open-minded. But even then people don’t look at physically or mentally handicapped children as equal to theirs.

Mothers fear the greater responsibility that comes with a disabled child, a responsibility that they often have to bear the brunt of. As one of the young mothers commented: Have tests to find out if there are any abnormalities? I suppose so. Sounds selfish but probably I think I would abort the child. I guess you feel the amount of responsibility. You’re not strong enough to bring up a special child.

In a similar vein, another mother said, “To bring up that child is the responsibility of a lifetime. No one else will take care [of the disabled child] especially after you die.” In her case the doctors indicated a problem with the heart. She continued: I had to go to Escorts.9 Then, I had thought that if there was a problem, I’d get an abortion done. The thought of the baby being born and getting tubes and all put all over was very uncomfortable. Any deformity would make a difference. If you don’t know, then you cannot help it, but once you find out, then don’t take up the responsibility. If she is born, then you have to take care of it, but otherwise it is better to prevent [it].

From the point of view of mothers the responsibility is particularly frightening, since it is routine to blame them for anything that is considered amiss with the child, be it female sex or disability. Many women who participated in Johri’s doctoral study (1999) described how they were blamed and ostracised by their conjugal families and the larger community for their failure to give birth to a son. Archana, a mother of three daughters, who was the principal of a school, narrated the painful days following the birth of her first daughter. When her mother-in-law finally came to visit her in the hospital, Archana said:

250

Anita Ghai and Rachana Johri

She behaved as if I had committed a crime. On the nurses asking for a gift [inaam] she commented, “You are asking for a gift. We are bereft [Hum to kahin ke na rahe]. She may as well have not survived.”

Archana was devastated and said, “I felt very bad. Today if I had a son, everyone would have gathered around me: celebrations would have taken place. And they had not even brought me food.” Archana’s trauma was heightened because her husband did not support her at all in the face of the hostility and ostracism inflicted upon her by his family and community. After the birth of their third daughter, her mother-in-law stopped eating for three days. Such is the lamentation following the birth of daughters that her community conducted a “shok sabha” (mourning meeting) for her, the poor woman who has three daughters, none of whom died. The psychological costs of bearing the less than perfectly desired child are indeed considerable for the mother. Apart from psychological costs experienced directly by the mother, the disabled child is viewed as an economic liability and, therefore, a burden on both family and society. Such a child is perceived to contribute little and require disproportionate investment from society. The parallel with the girl child is evident. In a globalising context where the profit paradigm predominates, the justification for preventing the birth of disabled children is that society has to bear the cost of disability. While the billions spent on wars (that are the major source of disablement) are not lamented, the money spent on disabled people is constructed as high cost. Economic factors are at the root of the persistent devaluation of disabled lives. This rationale is, however, flawed. Prenatal diagnosis creates an illusion that disability will be wiped out if research in genetics is successful. However, under no circumstances is a total erasure of disability possible. We know that barely 2 per cent of all births are affected by disability in the womb.10 Disability may occur at any time during pregnancy, delivery or at any other time during the lifespan. Many impairments have no clear aetiology. And since prenatal testing can carry some risk for the foetus, it is likely that only women with high-risk pregnancies will go through with it. Though many disabilities, such as sickle cell anaemia, Down’s syndrome, adult onset Huntington’s, cystic fibrosis and haemophilia are considered grounds for abortion, in reality many persons with these disabilities do become independent and lead productive lives, if given the opportunities to do so.

Prenatal Diagnosis

251

This is not to say that there would be no disabled persons who will require care, but such an expectation is legitimate within a just society.

Enrichment of Parental Autonomy Another rationale offered in support of prenatal screening is the enrichment of parental autonomy. Peter Singer, a well-known contemporary bioethics scholar, uses this argument to justify genetic/prenatal testing and subsequent termination of a disabled foetus. According to him: There are many things that people who are paralysed below the waist could not do in any society, no matter how constructed. They cannot visit untracked wilderness, go ice skating or play football. And many other things that they can do, they can do only with difficulty and with more time than it would take those who have the use of their legs.... The decision to abort a foetus that has, say, Down’s syndrome, is not a decision that is “anti-children”, still less “anti-life”. It is a decision that says: “Since I will only have two children, I want them to have the best possible prospects for a full and rich life. And if, at the outset, those prospects are seriously clouded, I would rather start again.”11

In this discourse, the choice to determine the nature of the foetus is constructed as a parental right. But a reading of the narratives from our research indicates that parental rights and autonomy are differently constructed, depending upon a mother’s social location and experiences. Although some mothers of non-disabled children did argue in favour of this right, other mothers of disabled children held a different view. These children were, however, born before the technology was routinely available for clinical use. For instance, Shanti, a 60-year-old disability advocate and mother of a 28-year-old disabled son, admits that she would have had the abortion had the choice been made available to her. She said, “I was too [much of a] perfectionist—too intellectual.” However, when asked whether she would give similar advice to young mothers, she responded in the negative. She feels living with a Down’s syndrome child has given her an opportunity for deep learning. She would not like to exchange this experience for anything. Many parents like Shanti will attest to the

252

Anita Ghai and Rachana Johri

potential for self-transformation that comes about as a result of bringing up a child who has Down’s syndrome. Prenatal screening and other future selective technologies make us lose sight of the possibility of transforming the hostility and prejudices that we carry for anyone who is different. The changing understanding of disability within the social model12 challenges us to question the assumption that disability is to be avoided at all costs. As Meeta, mother of two sons, who works in an NGO for disabled children, puts it: There is no problem in accepting the baby. Suppose the disability happened after birth, the baby loses an eye and then you will accept it. You won’t throw it away. There is a girl here at our NGO, she is handicapped but she has gone to England. Since I work here, I have seen how a mentally retarded child can take out a comb from the drawer. I have told my husband that in case I cannot have another child, I would like to adopt a disabled girl. That feeling of pity [bechaari] has gone. A 6-year-old has gone abroad, can we think of doing it?

Parental choice can only be meaningful within a society that provides knowledge about disabled lives. There is considerable difference between living with the disabled and their stereotypical portrayal in the popular imagination. The gap between stereotype and lived reality is evident in the narratives of visually impaired girls in the research study by Singh and Ghai referred to earlier. While visual disabilities are often not genetic, the issue concerns the difference between the construction of disability and the experience of living it. Therefore, we thought that it would be insightful to look at the views of those who are stigmatised to ascertain how they view the issue of disability and parental autonomy. Radhika is a 17-year-old visually impaired girl, originally from a remote village in Uttar Pradesh and now studying in a residential school for the blind in Delhi. Responding to a hypothetical query regarding what she would say to a mother who might give birth to a disabled child, she said: “There are good and bad traits in everyone. I would tell her not to abort the child, but help the child to develop an identity, to teach him/her how to live in this world.” Similarly Puja, her schoolmate, added: “I’ll also tell her that you should be teaching your child to live, to face this world.... And we should be doing something throughout our life, so that they [society] can remember us.”

Prenatal Diagnosis

253

In focus group discussions the right of the disabled to life was affirmed by visually challenged adolescent girls. Like non-disabled girls growing up in a patriarchal society, some disabled children may internalise the dominant voice of the culture and argue for the abortion of disabled foetuses. Many others, as the narratives show, disagree. From another perspective, it is in the context of potential motherhood that the issue of disability takes on added meaning in the lives of disabled women. This issue is poignantly addressed by Deborah Kent when she writes about the gulf between herself and her beloved husband, between herself and her parents, regarding her blindness, a gap she was herself unconscious of until she and her husband decided to have children. She writes: “What I understood was that Dick, like my parents, was the product of a society that views blindness and all disability, as fundamentally undesirable” (Kent 2000: 58). Thus, Kent does not look at life with disability as one of unmitigated suffering. If, nevertheless, some mothers of disabled children believe that they would advise a prospective mother to abort the foetus, what might be the underlying process? Diya, a 72-year-old middle-class woman, is actively involved in advocating the rights of intellectually challenged adults. She herself has a 24-year-old son with Down’s syndrome. Though committed to caring for her son, she points to the discrepancy between her own feelings and the dominant construction of disability. This is reminiscent of the arguments put forward by mothers who have daughters. Diya is of the view that if a young mother discovers any genetic defect, such as intellectual impairment, she should abort the child. She feels that although there is greater awareness about disability over the past two decades, the negative mindset of people has not really changed. She recalls with horror the agony and turmoil that she experienced while getting her daughter married because the whole family was stigmatised. She was equally perturbed by the frustration of her son, who was not allowed to be present at many social events. Her relatives would often explicitly tell her to leave her son at home. Similarly, another mother who has a 37-year-old son with Down’s syndrome, was distressed when her son expressed a desire for marriage: she has no solutions to offer him. Then, Kamal, mother of a grown-up son with developmental disability, said that although she herself did not

254

Anita Ghai and Rachana Johri

do so, she would advise a mother expecting a potentially disabled child to get the foetus aborted. She feels that even though society might have changed, disability is still perceived negatively. All the interviews indicate that disabled children are perceived as socially unwanted. Although the narratives included here refer to mothers with intellectually challenged children, we feel that the findings apply in the case of other disabilities as well. While it is possible to deconstruct the voices of mothers with or without disabled children, the contrasting narratives of visually impaired girls bring out the real paradox in the notion of choice and disability selection. Indeed, the disabled often do not experience their life as one of unmitigated suffering. Many feminists have repeatedly cautioned against the notion of universal womanhood. We are of the view that the specificity of their locations will generate a difference in the voices of mothers and daughters on disability. Nonetheless, what is not disputed is that women have an inalienable right to free choice in the area of reproduction. Health professionals and the wider society do not sanction the birth of a disabled child. Therefore, if women make choices that go against the societal norm, they are likely to be blamed. Even in the case of polio, it is often presumed that the mother must have been at fault by not having had the child immunised. Instead of getting support, counselling, understanding and information, people are pressurised into conforming to societal norms and expectations. It is important to note that a focus on individual reproductive choice overlooks the underlying assumption of prenatal diagnosis, namely, that only certain kinds of people should be born in this world. The very existence of prenatal tests assumes that parents will want to select against atypical results. Consequently, is there really a notion of free choice in the true sense of the word in decisions related to elimination of disabled foetuses? As a parent, Michael Bérubé, the father of a boy with Down’s syndrome, feels: I obviously can’t and don’t advocate abortion of foetuses with Down syndrome; indeed, the only argument I have is that such decisions should not be automatic. A foetal diagnosis of Down syndrome should not be understood, either by medical personnel or by parents, as a finding to which abortion is the most logical response.... Nonetheless, although this is my belief, it is only my belief. I would not want to see it become something more than belief—something more like a coercive social expectation. (1996: 79)

Prenatal Diagnosis

255

Individual Choice: Myth or Reality? It is evident that an emphasis on individual rights does injustice to the complexity of the woman’s as well as disabled person’s experiences. Let us consider the scenario that disabled people confront in a society where being normal is the ruling ideology. Considering that disability is defined in medical terms and normality is defined by powerful social normative standards, choice can be anything but free. Furthermore, there are people with a range of different disabilities, different life experiences, different material needs and different ideological perspectives. Although technological developments enhance the sense of choice, in reality they tend to push decisions in a predictable socially desirable direction. In contemporary India, the technology of prenatal determination of foetal characteristics has disadvantaged both girls and the disabled. With the advent of these technologies more and more pregnant women are encouraged by doctors to go in for prenatal screening. In such a context, the pressure on women to exterminate that which seems to depart from the norm is immense. But as Veena Das (1986) has argued, this decision is in itself by no means based on autonomous choice implied in discussions on the morality of abortion. Furthermore, as she points out, it is not inscribed in the nature of things that a physically or mentally retarded individual should have a poor quality of life. It is the great value accorded to autonomy and competition that appear to make this a self-evident fact. Indeed, new technological innovations have already made it possible to select an embryo at the outset rather than to abort an unwanted foetus afterwards. The abortion debate may thus become irrelevant in the not so inconceivable future. The critical question, then, is the issue of choice. As a recent report on assisted reproductive technologies by SAMA Resource Group for Women and Health states: It is difficult to distinguish between latent choice and social choice shaped by family, market and other agents. Unless we draw this line, there is no limit to theoretical choice and everything, including sex selection, can be justified in the language of choice. What society does is to promote one variety of choice while silencing the range of options. The society closes the option that women can be happy without children [or daughters or disabled children]. (2006: 101)

256

Anita Ghai and Rachana Johri

While individual choice must be promoted, what needs to be addressed is that this choice takes place in a particular social space in which disability has a negative connotation. Consequently, it is difficult to say how much real choice is involved. If you choose to bear and rear a disabled child, it appears to be illogical and ridiculous. As Adrienne Asch (cited in Blumberg) has written: Suppose Down syndrome, cystic fibrosis or spina bifida were [sic] depicted not as an incalculable, irreparable tragedy but as a fact of being human? Would we abort because of those conditions or seek to limit their adverse impact on life?13

To communicate that “you must have a test” or “you must have a termination” without analysing the implications needs to be problematised. We need to provide mothers and fathers with multiple accounts of how they might lead a life with a disabled child. As Jason Kingsley, a 17-yearold boy with Down’s syndrome, puts it: I have a disability called Down’s syndrome. My bad obstetrician said that I will never learn and sent me to an institution and never saw me again. No way Jose! Mom and Dad brought me home and taught me things. He never imagined that I could write a book. I will send him a copy of the book so he will know. I will tell him that I play violin, that I make relationships with other people, I make oil paintings, I play the piano. (Kingsley and Levitz 1994: 27–28)

What needs to be clarified is that these choices are made in a context where disability is accepted as an oppositional category to normality. Disabled lives are not considered worthwhile. Whether the argument stresses suffering or economic cost, disability is conceived of only as a medical category. Such a framing misses the socially constructed nature of disability. The fact that some part of the body or mind is limited in functioning is not the problem. But the barriers in society are the real problem: for instance, stairs without lifts or ramps, information not available in Braille or in digital format and, most importantly, people’s negative attitudes. These represent a complex form of institutional discrimination which is as deep-seated in our society as gender bias, caste structures and heterosexism/homophobia. Thus, the “cure” to the problem of disability does not lie in medical technology, but in the restructuring of society.

Prenatal Diagnosis

257

Marsha Sexton eloquently sums up the sense of outrage experienced by disability activists when she says: The message at the heart of the widespread selective abortion on the basis of prenatal diagnosis is the greatest insult: some of us are “too flawed” in our very DNA to exist; we are unworthy of being born.... [F]ighting for this issue, our right and worthiness to be born, is the fundamental challenge to disability oppression; it underpins our most basic claim to justice and equality—we are indeed worthy of being born, worth the help and expense and we know it! (1998: 391)

For a feminist audience it might be worthwhile to understand the role played by capitalist economies in casting disability as a deficit, something extensively discussed in the social model of disability. As Mike Oliver has written: Whatever the fate of disabled people before the advent of capitalist society . . . with its coming they suffered economic and social exclusion. As a consequence of this exclusion, disability was produced in a particular form; as an individual problem requiring medical treatment. Old age (and I would suggest, madness and distress) suffered a similar fate. (1996: 127)

It is not uncommon to find people impaired due to work-related injuries forced to lead a marginal life thereafter because of the disabledunfriendly environment. Thus, disabled people are disempowered because bodies that do not fit in or require additional resources to become a part of the production process are rejected in a system that emphasises profit. Factors such as the reluctance to provide disabled-friendly environment and the non-availability of materials in alternative formats for visually and hearing impaired people, are all geared towards keeping the employment rates for the disabled abysmally low. This image of not being able to contribute to production constructs the disabled as dependent, which is ultimately the root cause of their exclusion. For a mother the realisation that her disabled child may never be able to attain fulfilment of all his/her needs is very painful. As the narratives show, many mothers will choose not to go ahead with a pregnancy in such circumstances. A woman’s choice to abort a disabled foetus is constructed within dominant notions both of motherhood and disability. To feel fulfilled as a mother, it is assumed that she must produce a healthy,

258

Anita Ghai and Rachana Johri

non-disabled baby. Any deviation will not only produce dissatisfaction, but will also increase her burden and result in mother-blaming. Consequently, it is not difficult to empathise with a woman who selectively aborts a disabled foetus. The difficulty, both logical and ethical, arises when a similar argument is used for the abortion of female foetuses. Mothers report that a woman without sons is barren (banjh) and that life without a son is a life spent in darkness. They fear their husbands will leave them and indeed many do (Johri 1999). If mothers’ desires are not sufficient grounds for aborting female foetuses, the same rationale applies to the case of disability. Clearly, the notion of individual choice is problematic. The new reproductive technologies have eugenic potential as they reinforce the notion that there is an ideal of physical and mental perfection that humanity must aspire to. Such a position considers most differences as deficits. It is, however, a slippery slope to other forms of selection and, thus, eventually to a world of a new designer baby eugenics. If new technologies make it possible to fulfil desires and satisfy preferences, is that reason enough to use them? More precisely: if we can, does that mean we should? If one is going to be consistent about choice, then why stop at impairment? But then can women never be conscious agents? To cite Jennings (2000: 130), the notion of free choice only provides an “illusion of freedom”. Then, how are we to make sense of the situation? Equating choices that women are compelled to make, that is, aborting a female or disabled foetus, is not the same as saying that they are participating in discrimination. Instead, it points to the ways in which women are themselves constrained by the burden of knowledge. Our fantasy might be that women should avoid selection. However, it is unjust to expect that they would not abort when the problem is not a matter of autonomous choice, but the context in which such choice is made. What is perhaps required is an analysis of prenatal screening in the light of the social values and structural inequalities that influence the decision to abort. Therefore, if prenatal screening is to be made available, it must be accompanied by efforts to re-educate the public, including prospective parents, about disabled people’s lives. It has to be coupled with efforts to improve financial and other support systems for them and their families. If the danger of increased prejudice is real for sex, then it is even more real for disability. Our contention is that there is a critical need to interrogate

Prenatal Diagnosis

259

the silence around the routinisation and rapid growth of prenatal testing. To our mind, a public debate is extremely important to understand whether elimination of disability is a legitimate goal. Marcy Darnovsky (2004) reminds us: This constellation of technological, economic, cultural and ideological developments has revived the issue of sex selection, relatively dormant for more than a decade. The concerns that have always accompanied sex selection debates are being reassessed and updated. These include the prospect that selection could reinforce misogyny, sexism and gender stereotypes; undermine the well-being of children by treating them as commodities and subjecting them to excessive parental expectations or disappointment; skew sex ratios in local populations; further the commercialisation of reproduction and open the door to high-tech consumer eugenics.14

The belief that marginalised communities need to be empowered is equally true for both women and the disabled. As Roger S. Gottlieb, a philosopher with strong Marxist leanings, suggests: Whether or not someone is disabled is partly a function of what resources are available at a given time, what conveniences are “standard” in a society and how we are expected to behave.... The nature of paraplegia will change when wheelchair ramps are as standard as elevators.... Similarly, the question arises: what changes are to be made—the institutional equivalents of wheel chair ramps—in equalising the participation of caretakers of the disabled to make our society more just? (2000: 231–232)

Conclusion This article has argued that in both sex selection and disability selection, discursive constructions of socially acceptable and desirable traits completely eclipse the wide range of subjectivities that are involved in such decisions. What appears to be free choice is largely determined by the dominant social ideologies and institutions. Supporters of the right to determine characteristics of the unborn need to remember that in an era marked by unprecedented technological interventions on the body, the tendency to construct desirable babies is likely to work to reinforce already existing hierarchies. It is opening Pandora’s box as selection of

260

Anita Ghai and Rachana Johri

one trait implies the legitimisation of other traits as well. Therefore, the ethics of what appear as free choices need to be interrogated. The disability community in India is so involved with issues of basic survival that there is as yet no space for discussion of the implications of new reproductive technologies. We need to make efforts to incorporate the perspectives of disabled individuals in genetic counsellors’ education and practice, thereby reforming society’s view of the disabled. This will help in lessening possible negative effects of genetic counselling on the self-image and material conditions of disabled individuals. As part of a campaign aimed at the Human Fertilisation and Embryology Authority, the UK-based bioethics group Human Genetics Alert writes: If we allow sex selection it will be impossible to oppose “choice” of any other characteristics, such as appearance, height, intelligence, etc. The door to “designer babies” will not have been opened a crack—it will have been thrown wide open.15

Do we want that to happen?

Notes 1. See http://www.india-seminar.com/2003/532.htm, accessed 29 August 2007. 2. The PIL was initiated in February 2003 by three petitioners: Dr Sabu George, the Centre for Enquiry into Health and Allied Themes (CEHAT), Mumbai and the Mahila Sarvangeen Utkarsh Mandal (MASUM), Pune, in the Supreme Court. It called for the implementation of existing legislation banning prenatal sex-selection, as well as taking cognisance of newer reproductive technologies for sex determination of the foetus. 3. According to Sandhya Srinivasan (http://www.infochangeindia.org/analysis 121.jsp, accessed 29 August 2007), there are some 350 cases filed under the PNDT Act. Of these, 226 are for running a diagnostic clinic without registration, 26 are for not maintaining accounts. Just 37 are for communicating the sex of the foetus and 27 are for advertising sex selection. The first conviction involving a prison term was ordered on 28 March 2006, when a doctor and his assistant were sentenced to two years in prison and a fine of Rs 5,000 in Palwal, Haryana. More recently, a sex-selective abortion racket was unearthed in Pataudi, a town 40 km from New Delhi. The police say that A.K. Singh, the quack arrested for the murder of several unborn children and for conducting illegal diagnostic tests, has confessed to aborting over 260 female foetuses in the past decade. 4. See New York Times (7 May 2007) for a discussion on prenatal diagnosis. 5. Anencephaly is a fatal birth defect that happens when the neural tube does not fully close at the top. As a result, part of the skull and brain are missing. Babies with anencephaly die before or shortly after birth.

Prenatal Diagnosis

261

6. Psychotherapeutic or counselling technique in which the therapist takes on an unobtrusive role in order to encourage free expression and problem resolution by the client or patient. 7. Ami, who weighs only 39 pounds, works in Israel as a 3-D graphic designer and creates his art despite the fact that his bodily motion is limited to a single finger on his left hand. Through his efforts, he continues to redefine notions of a “normal” life. 8. It is interesting that while suffering associated with disability is assigned a negative value, suffering that is inflicted voluntarily on the self in order to achieve physical perfection is valorised. As Welsch puts it, “The current aestheticisation seems to attain its consummation in individuals. We are experiencing everywhere a styling of body, soul and mind—and whatever these fine people might want to have (or acquire for themselves) in beauty saloons and fitness centres they pursue the aesthetic perfection of their bodies.... Future generations should then have it easier straight away: genetic technology will have come to their aid ahead of them, this new branch of aestheticisation which holds the prospect of a world full of perfectly styled mannequins” (Welsch 1996: 6). 9. The reference is to Escorts Hospital and Research Centre, a private specialty hospital in Delhi. 10. See http://www.ias.ac.in/currsci/nov25/articles9.htm, accessed 20 August 2007. 11. See http://www.apa.udel.edu/apa/publications/newsletters/v99n2/medicine/articlesinger.asp, accessed 22 August 2007. 12. As against the medical model of disability, which conceptualises bodily difference in terms of impairment requiring medical intervention, the social model puts the onus of disability not on the individual, but on the society in which he or she lives. Architectural, educational and employment barriers created by society disable the individual, not his body. 13. See http://www.ragged-edge-mag.com/0798/a798ft1.htm, accessed 24 October 2007. 14. See http://www.gene-watch.org/genewatch/articles/17-/darnovsky.html. Accessed 30 April 2007. 15. “The Case against Sex Selection, Human Genetics Alert Campaign Briefing”, December 2002. Copy of report was obtained from Human Genetics Alert, Unit 112 Aberdeen House, 22–24 Highbury Grove, London N5 2EA.

References Bandewar, S. 2005. “Exploring the Ethics of Induced Abortion”, Indian Journal of Medical Ethics, 13(1): 18–21. Bérubé M. 1996. Life as We Know It: A Father, a Family and an Exceptional Child. New York: Random House. Darnovsky, M. 2004. “Revisiting Sex Selection”, Gene Watch http://www.genewatch.org/ genewatch/articles/17-1darnovsky.html, accessed 30 April 2007. Das, V. 1986. “Deciding on Moral Issues: The Case of Abortion”, in D.L. Eck and D. Jain (eds), Speaking of Faith: Cross-cultural Perspectives on Women, Religion and Social Change, pp. 211–220. New Delhi: Kali for Women.

262

Anita Ghai and Rachana Johri

Ghai, A. 2003. (Dis) Embodied Form: Issues of Disabled Women. New Delhi: Shakti Books, Haranand Publications. Gottlieb, R.S. 2002. “The Tasks of Embodied Love: Moral Problems in Caring for Children with Disabilities”, Hypatia, 17(3): 225–36. Green, J.M. 1994. “Serum Screening for Down’s Syndrome: Experiences of Obstetricians in England and Wales”, British Medical Journal, 309(6957): 769–772. Hubbard, R. 1997. “Abortion and Disability: Who Should and Who Should Not Inhabit the World?”, in L.J. Davis (ed.), The Disability Studies Reader, pp. 187–202. London: Routledge and Kegan Paul. Jennings, B. 2000. “Technology and the Genetic Imaginary”, in E. Parens and A. Asch (eds), Prenatal Testing and Disability Rights, pp. 124–46. Washington, DC: Georgetown University Press. Johri, R. 1999. “Cultural Conceptions of Maternal Attachment: The Case of the Girl Child”, Unpublished Ph.D. dissertation, Department of Psychology, University of Delhi. ———. 2001. “The ‘Freedom’ of Choices: A Discursive Analysis of Mothers’ Narratives” Psychological Studies, 46(3): 192–201. Kent, D. 2000. “Somewhere a Mocking Bird”, in E. Parens and A. Asch (eds), Prenatal Testing and Disability Rights, pp. 57–63. Washington, DC: Georgetown University Press. Kingsley J. and M. Levitz. 1994. Count Us in: Growing up with Down’s Syndrome. New York. Harcourt Brace. McLaughlin, J. 2003. “Screening Networks: Shared Agendas in Feminist and Disability Challenges to Antenatal Screening and Abortion”, Disability and Society, 18(3): 297–310. Menon, N. 2004. Recovering Subversion: Feminist Politics beyond the Law. Delhi: Permanent Black. New York Times. 2007. 7 May. Oliver, M. 1996. Understanding Disability: From Theory to Practice. London: Macmillan. Owen, M.J. 1992. http://www.dcia.us/board/mjbio.htm, accessed 20 August, 2007. Padmanabhan, M. 1993. “Outlawing Sex Determination: No Solution”, The Pioneer, 22 September. Parens, E. and A. Asch. 2000. “The Disability Rights Critique of Prenatal Genetic Testing: Reflections and Recommendations”, in E. Parens and A. Asch (eds), Prenatal Testing and Disability Rights, pp. 3–43. Washington, DC: Georgetown University Press. Parenting India. 2007. “Ask Dr Telang”, March 27. Patel, T. (ed.). 2007. Sex Selective Abortion in India: Gender, Society and New Reproductive Technologies. New Delhi: SAGE Publications. Patterson, A. and M. Satz. 2002. “Genetic Counselling and the Disabled: Feminism Examines the Stance of Those Who Stand at the Gate”, Hypatia, 17(3): 118–142. Rao, M. (ed.). 2004. The Unheard Scream: Reproductive Health and Women’s Lives in India. New Delhi: Zubaan Books. Rapp, R. 2000. Testing Women, Testing the Foetus: The Social Impact of Amniocentesis in America. New York and London: Routledge and Kegan Paul. SAMA-Resource Group for Women and Health. 2006. A Report on ART (Assisted Reproductive Technologies) and Women: Assistance in Reproduction or Subjugation? New Delhi: SAMA. Sexton M. 1998. “Disability Rights and Selective Abortion”, in R. Solinger (ed.), Abortion Wars: A Half Century of Struggle, 1950–2000, pp. 374–393. Berkeley: University of California Press.

Prenatal Diagnosis

263

Shakespeare, T. 1998. “Choices and Rights: Eugenics, Genetics and Disability Equality”, Disability and Society, 13(5): 665–681. Sharp, K. and S. Earle. 2002. “Feminism, Abortion and Disability: Irreconcilable Differences”, Disability and Society, 17(2): 137–145. Singh, S. 2005. “Capturing the Inner Realities of Visually Impaired Girls: An Exploratory Study”. Unpublished thesis submitted as partial requirement of bachelor in psychology degree, Department of Psychology, Jesus and Mary College, University of Delhi. Visaria, L.V. Ramachandran, B. Ganatra and S. Kalyanwala 2004. “Abortion in India: Emerging Issues from Qualitative Studies”, Economic and Political Weekly, 39(46–47): 5044–5052. Welsch, W. 1996. “Aestheticisation Processes: Phenomena, Distinctions and Prospects”, Theory, Culture and Society, 13(1): 1–24.

10

Religion, Feminist Politics and Muslim Women’s Rights in India Zoya Hasan

This chapter seeks to examine the implications of the interface between politics and religion for Muslim women’s rights, as well as for India’s democracy and the Indian model of secularism. It will seek to show how women’s and minority rights are used instrumentally by the politics of religion which has sidelined the women’s rights agenda. A second issue concerns the strategies deployed by minority groups to preserve their distinctive identity in response to threats to it, on the one hand, and how Muslim women-led networks are challenging the authority of the religious elite to represent the “Muslim community” while reframing the category “Muslim women” in order to assert political agency to enhance women’s rights, on the other. The third set of questions relate to women’s groups and how different strands of women’s movements have positioned themselves vis-à-vis other political actors in these contexts in defence of women’s rights? Is there any learning and cross-fertilisation between secular women’s groups and those that identify with particular religious world views? Historically, the women’s movement has focused its attention primarily on the relationship between women and the state, especially with regard to the rights of women in the legal domain and the relationship of women and politics in relation to political representation.1 The most important campaigns of the women’s movements have centred on issues of dowry, rape and personal laws and more recently women’s reservation in legislatures. The last two decades have contributed to the opening up of the

Religion, Feminist Politics and Muslim Women’s Rights in India

265

“woman’s question” in India in ways that have challenged the existing systemic discriminations and deprivations in a way never envisaged by any of the political tendencies or groups that had hitherto espoused the cause of societal change. Over the years the debate on religion in the women’s movement has shifted from a position that virtually ignored religion to an attempt to work for religious reform from within.2 This shift occurred at a time when the communalisation and politicisation of religion was apparent in the series of events, some unintended, others calculated, which helped anti-secular forces to gain a foothold and destabilize the political system. As the issue of minorities catapulted to centre stage Muslim women’s rights became a subject of considerable debate, typically with reference to the status of Muslim personal law and the conflicting claims of personal law, identity and gender. This was most clearly underlined during the Shah Bano controversy resulting in the 1986 Muslim Women’s (Protection of Rights on Divorce) Act (MWA), 1986, which denied divorced Muslim women the same rights to maintenance as other Indian women under the Criminal Procedure Code (CrPC). The Shah Bano case exemplifies the potential conflict between religion, politics and women’s rights. At stake in the Shah Bano case was the right of a divorced Muslim woman to claim maintenance from her former husband under the CrPC. Avoiding the constitutional question of equality, the court dilated at length on the compatibility of the CrPC and the Quran. The judgement sparked off a major political uproar which the Rajiv Gandhi government pacified by means of the MWA, to override the judgement and thus exclude Muslim women from the purview of the CrPC, to which otherwise all citizens have recourse. The law created huge problems not only for sex equality but also for non-discrimination on grounds of religion: Muslim women were the only ones denied this remedy under the criminal code.3 The backlash provoked by the reversal of the Shah Bano verdict led to the intensification of communal politics in the 1990s and this hardened communal boundaries. While it is doubtful how much Muslim support Rajiv Gandhi garnered in terms of votes in the 1989 Parliamentary Election, his move certainly alienated a large section of the Hindu community, especially the media and middle-classes which saw him as “appeasing” Muslims. From a mere two seats in 1984, the Bhartiya Janata Party

266

Zoya Hasan

(BJP) increased its tally to 89 seats in 1989. Following the passage of the MWA, Hindu organisations stepped up their advocacy of uniform laws, primarily as a means of eradicating the “privileges” of minority men. One of the promises made by the BJP when it came to power in 1998 was the promise to institute such a code. This had politicised the issue resulting in backpedalling by liberals who had earlier favoured it as they are wary that the BJP’s real interest is in imposing a Hindu code. The MWA provides that a divorced Muslim woman is entitled to, (1) “a reasonable and fair provision” within the period of iddat (a period roughly three months imposed upon a woman who has been divorced or whose husband has died, after which a new marriage is permissible), (2) two years maintenance for her children, (3) mehr (dower) and all other properties given to her by her relatives, husband and husband’s relatives. In cases where the woman is unable to maintain herself after the iddat period, the magistrate can order those relatives who are entitled to inherit her property, to maintain her in proportion to what they would inherit in accordance with Islamic law. If the woman has no such relatives, the magistrate would ask the State Wakf Board to pay maintenance. Over 20 years later, the overwhelming numbers of cases filed for maintenance are under the existing Section 125 of the CrPC and not the MWA, 1986, obviously contradicting the religious leadership’s claim that Muslim women do not wish to be governed by secular provisions. Several groups challenged the MWA, its violation of several articles on fundamental rights and its discriminatory character vis-à-vis Muslim women. In giving its verdict, the court ruled that a divorced woman is entitled to a reasonable and fair provision of maintenance to be made and paid to her within the iddat period by her husband, but this includes future needs. The word provision indicates provision in advance for meeting future needs and reasonable and fair provision may include provision for her residence, her food, her clothes and other necessities. This verdict was, thus, a step forward on the road to sex equality in as much as it provides a predominantly social, rather than religious grounding for maintenance provisions.4 Notwithstanding this liberal interpretation, the issue of discrimination on the basis of religion has not gone away: it remains significant. Only Muslim women are denied maintenance in the CrPC.

Religion, Feminist Politics and Muslim Women’s Rights in India

267

Uniform Civil Code and Women’s Groups The BJP is the strongest advocate of a uniform civil code while Muslim conservatives are among its strongest opponents. The Muslim leadership fears that such laws would inevitably lead to uniform cultural practices and alien customs being foisted upon them. In between are many who believe uniform laws are desirable, but that as a country we are not quite ready for it and, therefore, it is best not to raise the issue at this juncture. The overlaps and convergences between the conservative Hindu and Muslim positions are striking, though, both are overtly communitarian and covertly patriarchal impelled by the need to preserve gender hierarchies as well as retain their own religious authority and autonomy.5 In 1998, the BJP had promised to institute a uniform civil code if it came to power. Until then, the party had raised the issue of a uniform civil code principally to embarrass the Congress party which was reluctant to change the status quo in the face of Muslim opposition to it. The BJP was keen to draw a parallel between the Congress party’s capitulation to Muslim conservatives in the 1950s and again in the 1980s in the Shah Bano case to underscore this tendency. Its campaign sought to highlight Muslim appeasement to critique secularism as pseudo-secularism. By proclaiming its own commitment to “secular” principles, the BJP tried to seize the high moral ground to castigate the Congress government for its appeasement of minorities. According to BJP’s way of thinking, leaving Muslim law untouched implies unequal and asymmetrical treatment. This asymmetry has formed the basis for the charge that secularism, especially secular practice, implies pandering to Muslims for electoral gains. Hence, the party criticised the unequal exercise of the power of the state which intervened to reform the Hindu personal laws whereas the same was not done in relation to Muslim personal law. The criticism notwithstanding it also gives the dominant Hindu community a sense of “liberal superiority” over other “unreformed” communities, in particular Muslims.6 From the outset, the problem with the uniform civil code debate was its gratuitous emphasis on uniformity which found its reflection in terming it a uniform civil code. Both in judicial pronouncements and public debate, the need for a uniform civil code was justified as essential for national integrity and plural systems of law undermine it. For a long time

268

Zoya Hasan

it was rarely articulated in the public consciousness as a feminist issue.7 It became a debate about uniformity versus minority rights, secularism versus religious laws and modernisation versus tradition, in the context of the new nation-state (Rajan 2003). As Tahir Mahmood, an expert in personal laws, points out that the ultimate object of Article 44 (which enjoins the state to move forward towards uniform civil code) is secularity in family law: ‘the call for uniformity is merely the means’.8 In recent years, the issue has become considerably more complicated with the changing positions of women’s groups and sharp divisions on a range of issues relating to it. The decisive shift occurred in the wake of the Ayodhya conflict and the dramatic growth of the BJP and with it Muslim fears of the imposition of a “Hindu” code.9 There is agreement that all religious personal laws are discriminatory and must, therefore, change. There are, however, disagreements over the means to achieve this objective, whether through a state-sponsored civil code or internal reform. The uniform civil code has been discredited because the BJP was using it as a rhetorical device to attack minorities. Aware that legal change cannot be isolated from wider political conflicts and majoritarian politics, women’s groups made an attempt to distance feminist positions from the Hindu right’s demand for a uniform civil code.10 The women’s movement has since moved away from an either or position on the uniform civil code to a more nuanced position which combines the options of reform from within personal laws, with the formulation of gender-just laws deriving from the concept of a common civil code.11 The change is most explicit in case of the All India Democratic Women’s Association (AIDWA), which not very long ago promoted a uniform civil code, but now favours a gradual change in personal laws in recognition of the difficulty of pushing change through state initiative. It supports a two-pronged strategy to achieve reconciliation between gender-just laws as well as reforms from within. It has actively engaged in mobilising Muslim women and encouraged community initiatives for legal reform, codification of personal laws and at the same time demanding legislation with regard to matrimonial property and the custody of children, etc. A number of proposals have been mooted by women’s groups to enlarge the scope of gender justice. One is to devise secular laws and

Religion, Feminist Politics and Muslim Women’s Rights in India

269

encourage people to opt for them. Such an idea was advanced as early as 1945, when it was suggested that the uniform civil code be made optional. After Independence, the Special Marriages Act or the Indian Succession Act offered a number of options. However, the government failed to create the machinery for implementing an optional code. Had it done so, it may well have expanded the ground of secular laws, besides building up pressure for reform of community laws. More recently, as already mentioned, efforts have been made to move the debate from the comparative rights of communities and the nation to the rights of women as citizens. Women’s organisations have argued in favour of a comprehensive package of legislation providing equal rights for women in terms of access to property, guardianship, right to matrimonial home, equal rights in the workplace and anti-discriminatory provisions in recruitment and promotions. All Indian citizens should fall under the purview of common laws but enjoy the right to choose at any point to be governed by personal laws if they so desired. Such options would then result in the regime of personal laws becoming voluntary.

Muslim Women’s Activism and Reform from within In the context of the controversies surrounding legal reform, an important development over the past few years has been the emergence of Muslim women’s activism seeking to promote women’s rights rather than focusing all energies on changing personal laws to enhance rights. Muslim women in India face considerable challenges as citizens and as members of the largest minority. Their poor socio-economic status reflects a lack of social opportunity which, though not a feature exclusive to Muslim women, is exacerbated by their marginal status within an overall context of social disadvantage for most Indian women. Muslim women suffer from many disadvantages in areas such as education, employment and access to welfare programmes. The status of Muslim women broadly indicates the shortage of three essentials: knowledge (measured by literacy and average years of schooling), economic power (work and income) and autonomy (measured by decision-making and physical mobility) as the defining feature of women’s low status.12

270

Zoya Hasan

It isn’t religion or religiously-ordained customs and laws that affect the status of Muslim women. However, when it comes to Muslim women’s rights there is an inordinate emphasis on personal laws as though they were entirely responsible for all their problems. Scholars, policymakers and the women’s movement tend to focus on legal status almost to the exclusion of everything else and this has reinforced the centrality of personal laws as a determinant of status. Both Muslims and Muslim women continue to be defined by birth-bound identities and consequently the notion that Muslim women’s status is attributable to certain intrinsic, immutable, “Islamic” features is widely prevalent. All the debates tend to revolve around either the desirability of reform within, i.e., within the community and with religious sanction in order to preserve a Muslim identity or on the need to transcend community and end the gender discrimination inherent in personal laws by working towards a uniform civil code that will govern all citizens. This preoccupation has meant glossing over the economic, political and social problems that define the everyday experiences of Muslim women. On the other hand, the appropriation of Muslim women’s issues by a vocal and politically influential and conservative male Muslim leadership poses a challenge to Muslim women’s empowerment.13 The emergence in recent years of forums and associations of Muslim women is an important step in facilitating a public debate on women’s rights. The alliance of Muslim women’s groups with the women’s movement, together with movements for secularism, democracy and human rights, has also been crucial in broad-basing the struggle for women’s rights. Two networks— the Muslim Women’s Rights Network (MWRN) the Bharatiya Muslim Mahila Andolan (BMMA) question the authority of the All India Muslim Personal Law Board (AIMPLB) to speak for the Muslim community and women in particular. Both networks in different ways do this by placing the exclusion of Muslim women in the wider context of the exclusion faced by Muslims in India in general. This does not mean that the issue of personal laws is forgotten, but rather, that both networks are attempting to contextualise the multiple disadvantages and insecurities faced by Muslim women in a broader pattern of economic, social political exclusion.14 Likewise, Mumbai-based Women’s Research and Action Group (WRAG) and Aawaz-e-Niswan have gone beyond personal laws to promote gender equality.15 They aim to provide aid and support to

Religion, Feminist Politics and Muslim Women’s Rights in India

271

poor, illiterate and marginalised women, while at the same time raising their consciousness about the gender inequities that exist in our society and the need to strive to overcome them. Their engagement with legal reform is an outgrowth of these broad-based activities. Much like other women’s groups, Muslim women’s groups engage with a range of issues that include education, employment and domestic violence.16 Although these efforts have not to date inspired the development of a major reform movement among Muslims, they represent vital steps in seeking to build a rights-based movement. There is, for the first time, the beginning of serious debate on social reform. The project of legal reform is greatly complicated by the problems confronting the Muslim minority which is a vulnerable minority in India. A recent high-level committee on the status of the Muslim community, known as the Sachar Committee, has shown that they are impoverished, marginalised and under-represented in public institutions. They do, however, have the right to have their own personal laws and to continue to practice these under state protection. From the point of view of Muslim women it has meant that the articulation of gender interests has been tightly controlled and articulated within the terms of an identity discourse. Political negotiations over personal laws have invariably favoured conservative voices among Muslims to the detriment of women’s voices and women’s rights. However, those who argue for reform within Muslim personal laws as the best strategy for enhancing the scope of Muslim women’s rights ignore the fact that such an approach tends to freeze identities within religious boundaries. Very little attention has been given to the multiple cross-cutting identities of Muslim women based on class, language and region among others. Implicit in this approach is the assumption of a homogenous Muslim identity, which fails to hear the different voices within the community. Legal reform becomes tricky because the moral and legal framework on which it is based is supposed to be immutable. It is besides projected as an important issue for all Muslims because it defines their identity. Clearly, the system of personal laws has created a legal and social quagmire. It raises the question whether personal laws should have been allowed to continue in the first place. To have replaced the system of personal laws with a uniform civil code would have resolved and prevented

272

Zoya Hasan

many problems that haunt us. The problem, however, was that in the immediate aftermath of Partition it would have given a signal of inferior status to the Muslim community, which was already reeling under a sense of insecurity, no matter how neutral and how carefully framed such a code might have been. Internal reform of personal laws to bring them in within the ambit of equal protection and other fundamental rights has proven to be just as complicated. It will be difficult to accomplish this goal even with the best intentions and will and even with the considerable involvement of Muslim women.17 The resistance of minority communities to legal reform in the name of preserving their religious identities undoubtedly poses a problem. In this regard, the major issue is the eagerness of the state to put up with an enlargement in the influence of conservative leadership which has resulted in propping up of identity politics and strengthening the hands of forces that oppose women’s rights. Even though women’s groups have strongly opposed religious politics and religious patriarchies in all communities nevertheless they have had to contend with minority vulnerability which has often pushed women’s rights aside. This was the most critical predicament that the women’s groups have had to deal with taking into consideration the intensification of communal politics in the past two decades. Muslim women frequently pushed into the conservative fold of the community have paid the price of such compromise. The irony of Indian secularism is that the protection of diversity and minority rights has resulted in a sheltered retreat into conservatism. Although no major legal reforms have taken place with regard to Muslim women’s rights, the presence of Muslim women-led networks marks a significant shift in the Indian social landscape. It demonstrates the diversification of the women’s movement as women from Muslim communities find ways to engage with and challenge structures of power and authority within the community and the state at multiple levels. Their efforts can create a space for Muslim women to redefine their identities and reformulate relations of power within an increasingly constrained and polarised political context, one in which feminists have little room to manoeuvre outside of the confines of religious boundaries.

Religion, Feminist Politics and Muslim Women’s Rights in India

273

Notes 1. Radha Kumar. 1993. The History of Doing: An Illustrated Account of Movements for Women’s Rights and Feminism in India 1800–1990. New Delhi: Kali for Women. 2. Nivedita Menon. 2001. ‘Introduction’, in N. Menon (ed.), Gender and Politics in India, p. 11. New Delhi: Oxford University Press. 3. Zoya Hasan. 1994. ‘Minority Identity, State Policy and the Political Process’, in Zoya Hasan (ed.), Forging Identities: Gender, Communities and the State in India. New Deli: Kali for Women. 4. Martha Nussbaum. 2001. ‘India: Implementing Sex Equality through Law’, Chicago Journal of International Law, April. 5. Rajeshwari Sunder Rajan. 2003. The Scandal of the State: Women, Law and Citizenship in Postcolonial India. New Delhi: Permanent Black. 6. Radhika Desai. 1998. ‘Gender Faultlines of Legal Liberalism and the Advance of the Contemporary Right: The Case of India’, Review Essay, Osgoode Law Journal, 36(1): 189–201. 7. Nivedita Menon. 2001. ‘Introduction’. 8. Robert Baird. 2005. ‘Religion and Law in India: Adjusting to the Sacred as Secular’, in Robert Baird (ed.), Religion and Law in Independent India, p. 152. New Delhi: Manohar Publishers. 9. Zoya Hasan. 2000. ‘Uniform Civil Code and Gender Justice in India’ in Peter Ronald deSouza (ed.) Contemporary India: Transitions, pp. 282–330. New Delhi: SAGE Publications. 10. Flavia Agnes. 1995. ‘Hindu Men, Monogamy and Uniform Civil Code’, Economic and Political Weekly, 30(50): 16–23. 11. Seema Kazi. 1999. ‘Muslim Women in India’, A Report sponsored by the Minority Rights Group, London, p. 21. 12. Zoya Hasan and Ritu Menon. 2004. Unequal Citizens: Socio-economic Status of Muslim Women in India. New Delhi: Oxford University Press. 13. Anupama Katakam. 2004. ‘The Divorce Debate’, Frontline, 21(18): 28, 10 September; A. Katakam. 2005. ‘Reluctant Reform’, Frontline, 22(11) (21 May–3 June) http://frontlineonnet.com/fl2211/stories/20050603003303600.htm, accessed on 10 March 2009. 14. Nida Kirmani. 2011. ‘Mobilising for Muslim Women’s Rights in India, open Democracy, 14 January. 15. Yoginder Sikand. 2005. ‘The Muslim Personal Law Debate: Need to Listen to Alternative Voices’, available at http://www.islaminterfaith.org, accessed on 10 March 2009. 16. Sylvia Vatuk. 2008. ‘Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law’, Modern Asian Studies 42(2/3). Cambridge: Cambridge University Press, October. 17. Nussbaum. 2001.

11

Women and State Violence: Where Is Justice? Anita Tiphagne

In India, abuse of power by state machinery is becoming more and more common and disregard for the rights and dignity of human beings is the order of the day. The state has shown time and again another face—the face of a perpetrator of heinous crimes against women—crimes in the name of protecting and upholding justice. The United Nations definition of the term “violence against women” has been interpreted by Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that this could be perpetrated by assailants of any gender, family members and even the “state” itself. Government agencies responsible for law and order generally enjoy privileges and powers that make them “immune” to legal sanctions and many excesses, therefore, go hidden and justified. This chapter relates to a specific instance to prove in point the Indian state’s impotency to deal with its own machinery for gross human rights violations. This effort uses as its base the specific cases of police abuse of women in the name of combing operations in the search for Veerappan, the sandalwood smuggler, who was notoriously famous in Tamil Nadu, India. The first part of the chapter brings out the chain of events related to this issue. The second part details the case instances of women victims. The chapter then highlights the ad hoc rehabilitation efforts that have finally been taken ending with the role of the state in these issues.

Women and State Violence

275

Chronology of the Issue Veerappan, a sandalwood smuggler, who traversed the hill terrain on the borders of Tamil Nadu and Karnataka was a wanted criminal in several criminal cases in both states but was also a Robin Hood figure for the local people. The forest areas on the borders comprising Salem, Erode and Dharmapuri Districts in Tamil Nadu and Chamrajnagar District in Karnataka were his domain. Mostly inhabited by tribals and landless labourers, the people in the area are mostly poor and belong to the tribal and backward castes. Comprising Lingayats, Lambadis, tribals and Other Backward Classes (OBCs), these people live simple lives and are dependent on nature and their hard labour for livelihood. Veerappan and his exploits, on the one hand and the Special Task Force (STF) and their “famous” search operations, on the other, have only made development come to a standstill all these past two decades.1 The STFs of Karnataka and Tamil Nadu were separately constituted in April 1990 and August 1992 by administrative orders issued by the respective state governments, with the general mandate of capturing the forest brigand Veerappan. Later on, the forces were put under a joint command to form the Joint Special Task Force (JSTF) on 11 April 1993. The two STFs started with the then available personnel and equipment for their fieldwork and subsequently drew additional personnel from other police units as and when necessary. Depositions in the Sadasiva panel brought out that the operations practically functioned like armed police battalions only. Armed police battalions in the states do not exercise any police power by themselves but are only sent to assist the local officers in times of trouble and it is the local police officers who exercise their powers under the Criminal Procedure Code (CrPC) and take assistance of the armed police battalions in that work.2 In this case, the STF personnel had gone about a large area making enquiries with people, keeping some of them in custody for prolonged interrogations, making searches and, in some cases, seizing weapons also. The two STFs in this case had merely functioned as armed forces and did not have formally notified jurisdiction for exercise of the normal police powers of arrest, search, etc. Both the state governments have erred in

276

Anita Tiphagne

this aspect when the STFs were constituted. As mentioned under Section 2(s) of the CrPC, the head quarters of each STF team should have been formally notified as a police station with specific mention of its area. If the personnel of the STF of one state felt the immediate need to operate in the adjoining area of the other state, they could have always acted under the provisions of Section 48 of the CrPC.3 After the constitution of JSTF, instances of atrocities and human rights abuses began almost immediately. The JSTF strategy was clearly intended to terrorise and intimidate the villagers living on the periphery of the reserve forest along the border of the two states. The JSTF took recourse to various forms of torture on the people to extract information about Veerappan. The STF went village to village questioning people about their connections with Veerappan. On the pretext of finding the sandalwood smuggler and his gang, the police entered homes, pulled out people, took them to makeshift torture chambers that they called “workshop” and subjected them to untold miseries. There are hundreds of families in the forest regions on the borders of Tamil Nadu and Karnataka, mostly tribals, who stand out today with scars and wounds and with the fact that they can no longer carry on with their normal lives as a result of the torture from STF atrocities. The period between 1993 and 1996 witnessed brazen acts of violations by the JSTF personnel across villages in the region. Such acts included fake encounters, disappearances, custodial rapes and deaths, torture by electric shocks, unlawful imprisonment and willful deprivation of food and water—leaving many of them in a highly traumatised situation, with a very large number having turned mentally ill. Hundreds were taken in for interrogation and kept in makeshift camps set-up for the purpose. This camp at MM Hills was referred to as the “workshop”—which was considered to be their main torture chamber. According to the accounts of the victims, everyone who entered—man, woman or child—was stripped naked and they remained naked for the entire period of detention. This detention would range from days to many months. Denied of proper food and water, the victims were subjected to extreme harassment and torture. More than being interrogated, they were accused and charged of being Veerappan’s aides or supporters.4

Women and State Violence

277

The charges were common: if you owned a vegetable shop, you were charged of supplying the brigand with vegetables; if you were a blacksmith, the charge was that you had helped him with his weapons; if you were a tailor you were to have supplied him and his men uniforms. Women were accused of much more—illicit relations with Veerappan and his team to be “investigated” by rape and aggravated forms of sexual torture. Stripped naked, electrocuted at sensitive parts including their private parts, beaten, kicked, stamped upon, raped—there are more than 32 documented torture methods that are part of the depositions of these victims. The police spared none. Both men and women, young and old. Almost all the detentions were illegal. There were many others who were arrested and detained under Terrorist and Disruptive Activities (Prevention) Act—TADA—and left to languish in jails for many years without any charges. These gruesome acts were not brought to light until 1997 when rights-based organisations from Karnataka and Tamil Nadu, which included South Indian Cell for Human Rights Education and Monitoring (SICHREM, Bangalore), Tamil Nadu Tribal Welfare Association (Bhavani, Erode), Society for Community Organisation (SOCO) Trust (Madurai), People’s Watch (Madurai) and the People’s Union for Civil Liberties (PUCL, Tamil Nadu and Karnataka), received information and then undertook a detailed process of fact finding and documentation of the stories of these victims. The people were so shattered that they even ran away initially from these activists. Shocked at what they heard, these organisations took up the issue to the National Human Rights Commission (NHRC) in 1997. Taking cognisance of these reports and also of the prison visit of its Special Rapporteur in 1999, the NHRC ordered setting-up of a committee of enquiry and appointed Justice A. Sadasiva (as the chairman) and C.V. Narasimhan, IPS (Retd) to enquire into the alleged human rights violations. This panel commenced its proceedings only in January 2000 after six months of stupor. In all, the panel recorded the depositions of 192 victims and by 28 JSTF officers over a period of four years. Apart from these, depositions of the people of several rights organisations, doctors and jail authorities were also recorded. On 2 December 2003, the panel submitted its report to the NHRC. On 15 January 2007,

278

Anita Tiphagne

the NHRC in an interim order ordered the disbursement of Rs 2 crores 80 lakhs to 89 victims as recommended by Justice Sadasiva Committee. After all this, the NHRC has still not proceeded any further in this issue with even the recommendation for one single prosecution. Meanwhile, the search and combing operations of the JSTF which began in the year 1993 went on till finally, in the year 2004, Veerappan was killed in an alleged “encounter”.5 The officials of the JSTF were awarded promotions, double promotions and medals and were rewarded with land, cash awards and the like. All this appreciation while the very same police had been charged with gruesome violations. In doing so, the state governments decided to overlook the charges of flagrant human rights violation. And this was done on 30 October 2004 contrary to the NHRC’s own guidelines on such encounter killings. The NHRC remained unresponsive to subsequent pleas of human rights defenders to intervene urgently in this issue. This silence negated the voices of the victims, who suffered infringement of their rights and physical and mental injuries at the hands of the JSTF personnel for over a decade and who were and are still waiting for justice. Even the doubts regarding the alleged final encounter remain under veil except that this encounter resulted in many of the policemen and officers involved directly and indirectly in the encounter killings being double and triple promoted. The stories of these victims are horrifying tales of torture and inhuman treatment. Citing the victim stories gathered from the reports of the Sadasiva Committee of enquiry and also from personal narratives and case studies gathered from field visits in the area, this account brings to the fore the gruesome violations perpetrated by officers clad in uniform who still go scot-free. In spite of it being almost 20 years since these incidents took place, the torture remains as clear as day in the memory of the victims. The beating has made physical movement difficult and physical labour out of the question. The electric shock treatments have pulled out all muscle power and left their limbs lifeless and placid. The sexual abuse faced by the women has rendered life miserable with them facing untold physical and psychological pain. Families have been shattered, people remaining only as mute witnesses to the aftermath of this senseless brutality. What the women have gone through during and also after the incident has been much more than men. The men have been able to look forward

Women and State Violence

279

to life but the women have been branded and blamed for the loss of their dignity. Society has pointed its finger right at them, thereby, making it much more difficult for recovery and rehabilitation. What makes it much more gruelling for the victims is to see the perpetrators rewarded and promoted with political and legal impunity and the legal system putting them through the shackles of evidence and time frame and red tapism. Of over a thousand victims, more than 40 per cent are women. Any aspect of state violence has a defined gender component—women become easy targets for police and law enforcement officials. The women as usual, the worst affected, carry in their hearts the memories of not only the torture and sexual violence inflicted upon them, but the continuing social ostracisation that they have had to face in this society where they are blamed for the loss of their dignity. More than 400 women experienced the “workshop” mania, over 70 languished in jails for more than seven years and there are still a few who continue to remain in hiding or are on the move because of the still prevailing court-issued warrants in their names. The following are some of the accounts of women who have had to continue life alone, some who have battled the prejudices and stigma only to be further battered—these representing the many more that stand testimony to a massacre of dignity that has fallen on deaf ears.

Voice of Victims Thangammal has the most poignant story to share. She was taken in for interrogation on the pretext that she had the same name as the wife of Veerappan’s brother Arjunan. She was not taken to the torture chamber but to the STF police camp near Mettur. Stripped naked she was kept in a room upstairs where she was “interrogated” by a high-ranking police official of the Tamil Nadu STF who even led the JSTF. Beaten and slapped, she was pushed into a corner only to be raped again and again by the said “officer”. She was subjected to horrendous torture. Repeatedly raped, she remained in that illegal custody for over a week, given only one meal a day and was taken in chains to nearby water source

280

Anita Tiphagne

once a day to have a bath in the presence of policemen who watched over her. After remaining silent for several years, she took up the courage and broke the silence by speaking of the torture she underwent but her road to justice had more pitfalls to come. It was only her breaking the silence that led to many processes that followed. But she is yet to benefit in any manner whatsoever from this silence that she broke. She bore witness to her statement in the Sadasiva Committee of Enquiry but was not found in the list for compensation. Her family deserted her and her only son forsook her because of her testimony. As a single woman, she was subjected to immense police harassment and threats to withdraw her statement that continued even after 2004. Her physical scars have become health conditions she has to live with. What is more difficult is the psychological trauma she still undergoes. She has been helped by a local human rights organisation to set up a small eatery which she manages all on her own, catering to the local community. She now has some meagre bank savings and a steady monthly income. She still struggles to battle her memories and the trauma that torments her. But this livelihood option did not come easily. She had to undergo the struggle of facing the trauma and encountering society’s stigma of being a “used” woman. She experiences a whole range of physical ailments, much of it psychosomatic, frequent mood swings and depression and has developed complete distrust for the society but is slowly pushing herself to face life.6 While Thangammal stands alone in society, we see many other women victims who have remained or have been “allowed” to remain within the family system and have had other hurdles to cross. Ammasi, an old lady of over 70 years, has had too many burdens to carry. She lost four male members, her husband and sons apart from being illegally detained in the workshop herself. Her husband and sons were shot in an alleged exchange of firing with the bandit. Losing them and taking up the responsibility of the family at an age of over 60, life has been too cruel to this lady. She has battled poverty, stigma and the state at the same time. Still trying to make both ends meet, she requires constant medical and psychological attention.7 Lakshmi, her daughter-in-law, was illegally detained for several months and subject to physical and sexual torture by the STF. She lost her husband who died as a result of the torture he faced. As a young widow and a tortured victim, sensing society’s stigma, she decided to remarry a

Women and State Violence

281

person with visual and hearing impairments who she believed will not question her past. More trouble awaited her. Her second husband was deeply suspicious of her. He recently passed away and again she is left alone with her two children to face society as a “tarnished” woman. This has only intensified her trauma.8 Disappearances and extra judicial killings have also had their impact on the women. Victims recount that whenever the STF brought a tailor to the “workshop” and a particular person had their size measurements taken, this rang the death knell. The papers the next day will carry headlines of “Veerappan’s aides” being shot in an exchange of fire with the STF. But this would actually mean the loss of the person who was measured for the stitching of a garment resembling the gangster’s uniform. But for the family, news of this death will reach only months later. The trauma of not knowing has rendered many wives and mothers helpless. According to one victim, when the police was not satisfied with her answers, they blindfolded her and chained her hands and legs. They assaulted her with a baton. She was also assaulted close to the eyes on account of which she lost her vision of the right eye. The JSTF personnel applied clips to her ears, passing electricity through them and similar treatment was meted out on the back of her neck, breasts and private parts. At the same time, she was stripped naked and raped. Since she was blindfolded, it was not possible for her to know who were responsible for all this. Apart from the torture, these women have also had to come back to their families with battered bodies and reputations. They have faced closed doors, silent stares and a veiled stigma from their own communities. One woman states she was repeatedly raped even though she was six months pregnant at that point of time and it resulted in an abortion. Many victims stated that they were indiscriminately beaten by the police with batons on their vital organs; mostly, below their waist and, sometimes, on their jaws and neck. They further stated that on account of the indiscriminate hitting, their bones have become weak and it has become impossible for them to work in the fields and walk long distances. All the victims speak about the constant beating, the electric shock treatment to their nipples, ear lobes and private parts with passive expressions on their faces. They have seen too much; nothing shocks

282

Anita Tiphagne

them anymore. They have witnessed the worst and have seen no one standing up for them and justice is nowhere on the horizon. According to another victim, her whole family was brutally tortured, including her 12-year-old sister who was raped and her grandfather who was given “current treatment”. A victim recounts that she was indiscriminately beaten and a roller was put on her thighs which was moved by two policemen using all the force and she was hanged to the roof by tying her limbs behind her back and they kept her suspended for hours together; on account of which, her limbs became weak and her body could not take the strain of her own weight. In each of these cases, the “hidden” victims or the women of the family have suffered more. Waiting for days, months and in many cases, even years for their family to return—fathers, brothers, husbands taken by the STF in the name of questioning—these women have run from pillar to post begging for the whereabouts of the men. Searching, waiting and not knowing the details of the victims is more cruel and torturous. Women—wives and daughters—have had to face the additional responsibility of managing families for months in the absence of men—either arrested, in jail or disappeared. In the past 17 years since 1996, when these issues first came to light to the outside world, over hundred people have been acquitted of all charges and released and the torture has ceased but the scars remain—more so for the women victims. Rehabilitation efforts have been very difficult and also limited. With the government doing absolutely nothing for these victims apart from the monetary compensation which came only for a limited few, the victims have had to face life, handle the trauma, go through the legal hassles, live in fear of the STF and now in complete despair. The weekly mobile medical camps organised by People’s Watch serves over 100 patients on each visit, most of them are victims who require medical attention for chronic somatic pain, ulcers, paralysis and so on. These victims also require constant physiotherapy. But the medical help has only done little. It is also pertinent to note that that state has so far not taken any effort at providing rehabilitation assistance or medical help to these victims. An initiative by a Canadian therapist Leslie Chesick on mindfulnessbased trauma therapy showed a lot of positive change among a group

Women and State Violence

283

of victims who felt strengthened psychologically. This programme was conceived keeping in mind that providing psychological relief to so many over such a large geographical area would be complex.9 Added to that, the stigma that these survivors feel already would be heightened if they were asked to participate in psychological counselling. With that in mind, a culturally appropriate programme that combines mindfulness-based meditation, yoga, safety and containment skills, psycho-education on trauma and its effects, as well as supportive discussion was designed and sampled on a group of victims. A major hurdle to rehabilitation has been the aging of the victims. It took over six years for the issue to come to light, another four years for the Sadasiva Enquiry and yet another seven years for the compensation and still no justice. Victims have had to battle memories now for over 17 years and have also grown old.10 Their families look at them as remnants of a “holocaust” that they want to forget. The present youth of the community were infants or toddlers when it all happened. Raghu, now 21 years old and a graduate in Economics (with educational support by People’s Watch) only knows that this father died when he was a few months old.11 The next generation has life ahead of them, they want to move on and not hold on to a past which is too traumatic. But moving on is not so easy. There’s almost nothing that these families possess; no land, no assets, no livelihood. Thirteen years of torture has had its toll.

Legalities in the Issue An analysis of the legal repercussions of this case, the implications on the social fabric of the community and also the psychological trauma and its lasting effects brings us to a very pertinent question. Who will bell the cat? There are several legal aspects that come to the fore when examining this instance in particular. Efforts can be made to align this issue with the United Nations Security Council resolution 1325, adopted in 2000. The resolution recognised the need to adopt a gender perspective in peacekeeping operations and the training of personnel on women’s rights. It is pertinent to note that the very same gender perspective should be given to all law enforcement officials to be adopted during any law-keeping

284

Anita Tiphagne

operation. The disastrous effects that the combing operations of the STF have had on women only show that the brutality and sexist approach of the police only tear the fabric of society into further tatters. The aspects of torture to be considered as a violation of the inherent rights to live and with personal freedom and dignity have been reiterated by several international standards ranging from the Universal Declaration of Human Rights, the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms. In all these conventions, the writing is clear: torture is unacceptable especially if perpetrated by the state itself. This instance brings to the fore pertinent issues to be considered in the anti-torture debate. We see the importance of witness and victim protection in cases against state-sponsored violence. Handling trauma with adequate psychological support is imperative for the effective rehabilitation of victims. Dealing with their physiological and psychological scars should stand foremost in any rehabilitation effort. Just ignoring the cries of these victims and hiding behind banal legalities is the common stand of any state and this is what is denounced in the United Nations Convention against Torture (UNCAT) and its Optional Protocol which clearly recognises that the primary responsibility for the protection of people deprived of their liberty and the full respect for their human rights is the state’s. The Optional Protocol further highlights that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires education and a combination of various legislative, administrative, judicial and other measures. But India is still conveniently a non-signatory of the UNCAT. The Optional Protocol further states that in the aftermath of armed conflict, women are continually targeted, exploited and abused—from life in refugee camps, the post-war collapse of justice systems or the absence of health care facilitates to adequately treat the survivors of sexual violence. Similar instances of violence against women perpetrated by state agencies have been brought to light in various parts of the country—Gujarat and the North East in particular. In each of these instances, state impunity and lack of accountability come to the fore.

Women and State Violence

285

All these correspond to the plight of the women in the STF-exploited areas also. We see numerous linkages in the way the women have been treated and the way they have been ignored in the entire rehabilitation process. In this instance, the government has not moved in any direction either for the legal proceedings or for the rehabilitation of these victims in spite of acknowledging what has been happening by paying the initial compensation amounts recommended by the Sadasiva Commission. This apathy has disheartened many. When will justice be done? When will we see the perpetrators brought to shame? The struggle continues. We still have hope—hope stemming from these very same women who have confronted and survived violence and torture and have had the courage to speak out and reclaim their lives.

Notes 1. People’s Watch Documentation Centre. 2003. ‘File Record—Human Rights Violations by STF in Tamil Nadu Karnataka Border Areas’, People’s Watch Archives. Madurai: People’s Watch Documentation Centre. 2. Report of inquiry into allegations of rape, torture and other excesses by the JSTFs of Karnataka and Tamil Nadu, against tribals and others, in the course of anti-Veerappan operations, by Hon’ble Justice A.J. Sadashiva, former judge, High Court of Karnataka, Bangalore and Chairman Hon’ble C.V. Narasimhan, IPS (Retd), former director, Central Bureau of Investigation Member, 2 December 2003. 3. Report of inquiry into allegations of rape, torture and other excesses by the JSTFs of Karnataka and Tamil Nadu, against tribals and others, in the course of anti-Veerappan operations, by Hon’ble Justice A.J. Sadashiva, former judge, High Court of Karnataka, Bangalore and Chairman Hon’ble C.V. Narasimhan, IPS (Retd), former director, Central Bureau of Investigation Member, 2 December 2003. 4. People’s Watch Documentation Centre. 2003. ‘File Record—Statement of Victims of STF Violence, Tamil Nadu and Karnataka’, People’s Watch Archives. Madurai: People’s Watch Documentation Centre. 5. Archives of Frontline, 21(23), 6–19 November 2004. 6. Excerpts from case study interviews done by the author with the women victims at Saveriyar Palayam, Tamil Nadu (December 2010). 7. Excerpts from case study interviews done by the author with the women victims at Saveriyar Palayam, Tamil Nadu (December 2010). 8. Excerpts from case study interviews done by the author with the women victims at Saveriyar Palayam, Tamil Nadu (December 2010).

286

Anita Tiphagne

9. File Record—Mindfulness-based Trauma Therapy by Leslie Chesick maintained by the Rehabilitation Centre for Torture Victims, People’s Watch (June 2009). 10. Excerpts from interviews by the author with survivors who sought medical assistance by People’s Watch, Mettur, Tamil Nadu (April 2012). 11. Interview by the author with Raghu at Madurai, Tamil Nadu (April 2012).

About the Editor and Contributors Editor Kalpana Kannabiran is the recipient of the inaugural Amartya Sen Award for Social Scientists, 2012, for her work in Law. She is a sociologist and legal researcher and is currently Director, Council for Social Development, Hyderabad, an autonomous research institute supported by the Indian Council for Social Science Research. She was awarded the VKRV Rao Prize for Social Science Research in the field of Social Aspects of Law by the Indian Council of Social Science Research (ICSSR) in 2003. She was part of the founding faculty of National Academy of Legal Studies and Research (NALSAR) University of Law where she taught sociology and law for a decade (1999–2009) and is a founder member of Asmita Resource Centre for Women where she has coordinated research and legal outreach for women. Kannabiran has been the general secretary of the Indian Association for Women’s Studies (1998–2000) and is active in the International Sociological Association. She was a member of the Expert Group on the Equal Opportunity Commission, Government of India (2007–2008) and member of the Expert Group on Legal Education Reform in Kerala, Government of Kerala. She has been an activist in the women’s movement since the late 1970s.

Contributors Flavia Agnes is a women’s rights advocate and a legal scholar. A pioneer of the women’s movement, she has worked consistently on issues of gender and law reforms. Her widely published writings have provided a vital context for feminist jurisprudence, human rights law and gender studies in India. Significant among her many publications are Family Law—A

288

Women and Law

Textbook on Personal Laws, Constitution and Matrimonial Litigation, Volume 1 (2011) and Law and Gender Inequality: The Politics of Personal Laws in India, Volume 2 (1997). Her autobiographical essay on domestic violence ‘My Story Our Story ... of Rebuilding Broken Lives’ is an important marker of the Indian women’s movement and has been translated into several languages. She is the co-founder of MAJLIS, an NGO based in Mumbai and director of its legal centre. The all women team of lawyers of the legal centre provide legal advocacy and litigation support to women victims of domestic violence in and around Mumbai. Anita Ghai, a PhD, is an Associate Professor, Department of Psychology, Jesus and Mary College, University of Delhi, New Delhi, and a disability activist in the areas of education, health, sexuality and gender. She has been Teen Murti Fellow at Nehru Memorial Museum Library (NMML), University Grants Commission (UGC) fellow and president of the Indian Association for Women’s Studies. She is on the editorial board of Disability and Society, Disability Studies Quarterly and Scandinavian Journal of Disability Research and has written extensively around issues of disability and gender. At NMML, Teen Murti, Ghai was selected as a fellow to work in the area of ‘Women and Disability: Conceptualising a Policy of Care’. Her book (Dis)embodied Form: Issues of Disabled Women has been very popular and the second edition was reprinted in 2006. She is the co-author of The Mentally Handicapped: Prediction of Work Performance. Her recent publications include: ‘Mothering from the Margins’ in Phyllis Erdman and Kok-Mun Ng (eds), Attachment: Expanding the Cultural Connections and ‘From Parayi to Apni: Mothers Love as Resistance’ in Jasjit Sangha and Tahira Gonsalves (eds), South Asian Mothering. Zoya Hasan is a Professor at Jawaharlal Nehru University, New Delhi, and former dean of the School of Social Sciences. She has published widely in the area of politics in India and in fields of state, democracy and development, state politics and on issues of equity, social justice and minorities. Her recent books include Congress after Indira: Policy, Power, Political Change (1984–2009), Politics of Inclusion: Caste, Minority and Affirmative Action, Unequal Citizens: A Study of Muslim Women in India (co-authored) and Equalising Access: Affirmative Action in Higher Education in India, United States and South Africa (co-edited).

About the Editor and Contributors

289

Indira Jaising is currently the Additional Solicitor General of India and was the first woman to be appointed to that position. She has served as an expert member of Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) from 2009 to 2012, representing India. She was the first person to be designated as senior advocate by the High Court of Bombay. She is the founder secretary of the Lawyers Collective, an organisation providing the unmet legal needs of the community. She has argued several cases related to discrimination against women. She was instrumental in drafting and lobbying for the enactment of the Protection of Women from Domestic Violence Act, 2005. Jaising was awarded the Padma Shri in 2005. She is on the Advisory Council of the World Bank on Gender and Development. She is currently based in New Delhi and represents the Government of India at the Supreme Court. Rachana Johri is an Associate Professor of Psychology at Ambedkar University, Delhi. Her special interest in the intersection of gender and cultural issues is reflected in her doctoral work on the cultural conceptualisation of maternal attachment for daughters in the context of the prevailing culture of son preference in India. Within the domain of gender, she is particularly drawn to the problematic constructions of motherhood in psychology and psychoanalysis, violence against women, women and mental health, and gender and disability. Her other areas of interest include the use of qualitative research in psychology, history and theory of psychology and childhood development. D. Nagasaila is an Advocate practising in the Madras High Court for the last 24 years. She specialises in labour, service and environmental law. As a labour law practitioner she has represented both the organised labour unions and unorganised labour, including casual and contract labour as well as individual workers. She has appeared for several women employees in sexual harassment cases and has recently represented the cause of women workers in the textile industry in Tamil Nadu and successfully opposed the ‘Sumangali Scheme’ and advocated the implementation of the minimum wages notification for them. She has co-authored a fortnightly column called ‘Legal File’ in the Hindu, a leading national newspaper. She has also revised along with V. Suresh a textbook on criminal law

290

Women and Law

and co-authored the volumes on the Indian Penal Code for Halsbury’s Laws of India. Shruti Pandey litigated on human rights for many years in the Supreme Court and Delhi High Court. She has been associated with several legislative processes, including steering the formulation of Government of India’s National Health Bill, as senior consultant on legal framework for health at National Health Systems Resource Centre (NHSRC) set up by the Ministry of Health and Family Welfare. Her publications include the books Disability and the Law and Coercion versus Empowerment. She is currently the human rights programme officer with Ford Foundation at its India office, having worked earlier with Lawyers Collective, Human Rights Law Network, INTERIGHTS and NHSRC. Sagari R. Ramdas is Director of Anthra, a resource group in India, founded by women, which works with peasant, pastoralist and indigenous peoples, particularly women from these communities, on environment and social justice concerns in the larger context of food sovereignty. She is currently engaged in action research with various people’s alliances, looking at ways in which seemingly unrelated policies and programmes that span multiple sectors (resource governance, microcredit, climate change, genetically modified [GM] crops, biofuels, contract farming, intellectual property rights [IPR] regimes, trade agreements) are undermining people’s sovereignty and autonomy over sustainable farming and dispossessing communities from their land, livelihoods and ecosystems. A veterinary scientist by profession, she has been working in this field since the past two decades. Padmini Swaminathan is Professor and Chair, Centre for Livelihoods, Tata Institute of Social Sciences, Hyderabad. She was former director and Reserve Bank of India chair at the Madras Institute of Development Studies, Chennai. Her research interests and publications cover themes related to industrial organisation, labour and employment, education and skill development and occupational health—all from a gender perspective. Anita Tiphagne is Assistant Professor of Social Work at the Department of Social Sciences, Lady Doak College, Madurai. She was also a Visiting

About the Editor and Contributors

291

Shansi Scholar at Oberlin College, Ohio, for the Fall Semester 2012 during September–December 2012 and is pursuing her doctoral degree on the position of women in a denotified criminal tribe called Kal Oddars in Tamil Nadu. Meera Velayudhan is a PhD in History and has been involved in gender studies and advocacy since 1980s. Currently, a Senior Policy Analyst at Centre for Environment and Social Concerns (CESC), Ahmedabad, Gujarat, Velayudhan has been active in the state-level working group on women and land ownership cultural history of labour and strategies of organisation of women in varied contexts have been the focus of her research. She is also engaged in a study supported by ICSSR on ‘Craft Communities, Local Natural Resources and Challenges of Market in Kachchh, Gujarat’. Velayudhan is an Executive Committee member of Indian Association for Women’s Studies.

Index

Aawaz-e-Niswan, 270 Adivasi women, 81n13 active role in movements, 59–60 attacks on, 62, 80n11 claims under FRA, 63–67 emerging challenges for, 78–79 forest management, opportunities for, 74–78 FRA and, 60–63 impact of development programmes on, 73 marginalised, 63–67 rights to livelihood strategies, 60–61 role in producing food, 71 view of lands, 68 aggrieved person, 12 agricultural land ownership by women, 103–108 in AP, 107 in Gujarat, 105 in Himachal Pradesh, 104 marital status, link between, 106 in Rajasthan, 104 in UP, 103–104 Ahmed, Moudud, 94 Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors, 217 Ahmed v. Aysha, 49

Air India Cabin Crew Association v. Yeshaswinee Merchant, 166, 187, 193 Ajay Kant and Others vs Alka Sharma, 20 Ali v. Sufaira, 49 Aliyar v. Pathu, 49 All India Democratic Women’s Association (AIDWA), 268 All India Muslim Personal Law Board (AIMPLB), 270 Amit Khanna v. Priyanka Khanna and Ors, 24 A.N. Rajamma vs State of Kerala and Others, 204n83 ancestral plural relationship, 59 Andhra Pradesh forestry programmes, 72, 76–77, 81n15 FRA Claims, 63–64 implementation of PWDVA, 19, 23 implementation of the FRA, 62 NREGA allocations to afforestation programmes, 69, 82n25 women’s land ownership, struggles for, 107–108 Andhra Pradesh District Poverty Initiatives Programme (APDPIP), 81n13

Index 293

Andhra Pradesh Rural Poverty Reduction Programme (APDPRP), 81n13 Andhra Pradesh Tribal Development Project (APTDP), 72, 82n30 Andhra Pradesh Vyvasaya Vrithodaala Union, 107 Ankilewitz, Ami, 247 Antyodaya Anna Yojana (AAY), 222 Anuj Garg v. Hotel Association of India, 151 applicant, definition of, 12, 17 Articles of Constitution, 149–150, 162, 173, 176, 185, 209–210, 236n13, 268 Attakoya Thangal v. Union of India, 217 B. Shah v. Presiding Officer, Labour Court, 162 Bandewar, Sunita, 242 Bandhua Mukti Morcha v. Union of India, 217 Bangladesh, patterns of landownership, 94–98 Association for Land Reform and Development (ALRD), 97–98 Bengali settlers, 97 in Chittagong Hill Tracts (CHT), 97 distribution of khas lands including, 95–96 equal inheritance rights to women, 94 Land Reform Ordinance and regulations, 94

National Policy For Advancement of Women (NAPW), 94 rights of women to fish ponds, 96–97 Vested (Enemy) Property Act, 97 Women Action Committee (WAC), role of, 95–96 Banoo Jal Daruwalla v. Jal C. Daruwalla, 51 Batra vs. Batra, 26 Batra vs Batra, 21 Bendall v. Mc Whirter (as cited in Banoo Daruwalla), 51 Bharatiya Muslim Mahila Andolan (BMMA), 270 Bharatiya Sanskriti, 17 Bhil, Chaggibai, 104 bill on domestic violence. See also Protection of Women from Domestic Violence Act (PWDVA), 2005 consultations and meetings with different women’s organisations, 11–13 domestic violence, definition of, 8 GOI Bill, 13–15 Parliamentary Standing Committee, 15–16 protection officers, 10 reliefs under, 10–11 right to residence, 9–10 shared household, 9–10 UPA coalition government and, 16–17 Bimla Rani case, 192 BioCarbon Fund, 75

294

Women and Law

Bombay Prevention of Hindu Bigamous Marriages Act, 1946, 177 B.P. Achala Anand v. S. Appi Reddy, 35 B.R. Acharya and Another vs State of Gujarat and Another, 203n72 capitalist societies, 3 Captain Ramesh Chandra Kaushal v. Veena Kaushal, 39 Central Civil Services (Leave) Rules, 184 CERC v. Union of India, 216 CESC Ltd v. Subhash Chandra Bose, 216 Chameli Singh v. State of UP, 215, 217 Chanmuniya v. Virendra Kumar Singh Kushwaha, 53 Charan Singh and Ors vs Union of India and Ors, 203n71 Chesick, Leslie, 282 civil law for domestic violence, 6 Civil Procedure Code (CPC), 173, 175–176 Code of Civil Procedure, 14 Code of Criminal Procedure (CRPC) s. 125, 19 collective bargaining, 145, 150, 155–159 in textile industry in Tamil Nadu, 157–158 collective/community rights to the forests, 61, 63, 65, 67 displacement of Adivasi families, issue of, 71–74 forest appropriation, 74–78

monoculture plantations and afforestation, issue of, 68–71, 75 patriarchal ideology and political character, 67–68 planting pongamia trees, process of, 77 community of property, 36 Compensatory Afforestation Management and Planning Authority (CAMPA), 69, 82n36 conjugality in a bigamous marriage, 41–43 legal ploy to term a woman as “concubine” or “mistress”, 44–46 matrimonial property and, 33–38 constructions of legal principles, debates around, 51–54 constructive trust, 35 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 151, 184, 274 coparcenary, 3 counselling, 15, 17 Court of Wards Act, 174 Criminal Law of Section 498A IPC, 6 Criminal Procedure Code (Cr.PC) s.125, 38–39, 41–43, 48, 50 cruelty, 8 Curt Muller vs The State of Oregon, 194 customary divorce (chor chittee), 42

Index 295

D. Velusamy v. Patchaiammal, 53 Daniel Latifi v. Union of India, 49 Darnovsky, Marcy, 259 Deccan Development Society (DDS), 107 Denning, Lord, 35, 51 Dennison Paulraj and Ors v. Union of India, 22 Dennison Paulraj and Others vs Mrs Mayawinola, 20 deserted wife’s equity, 35–36 differed community of property, 36 Directive Principles of State Policy, 48 discrimination in conjugal relationships, 179–180 distinction between classification/differentiation and, 174–177 equal treatment and, 187–189 gender division of labour, 191–194 line between differentiation, classification and, 173–177 with reference to Hindu women, 180 relationship rules, 183–187 special provisions, 189–191 against women at workplace, 181–189 Discrimination (Employment and Occupation) Convention, 1958, 151 DISHA, 103 Dissolution of Muslim Marriages Act of 1939, 46

Divorce and Matrimonial Cases (DMC), 40 divorced Muslim women, protection of, 46–51 domestic relationship, 2, 8–9 domestic violence, 1 definition of, 8 experiences of using Section 498A in cases of, 8 LC bill on domestic violence, 7–11 need for law, 1, 6 Down’s syndrome, 246, 250–254, 256 dowry harassment/dowry death, 7 due process of law, 22 Eastern Ghats, 72, 82n29 economic partnership, 34 economic rights of women Christian and Parsi women, 51 jurisprudential questions and tools of interpretation, 51–54 married women, 32 of Muslim women at divorce, 46–51 Ekal Nari Shakti Manch (ENSM), 104 Ekal Nari Shakti Sangathan (ENSS), 104 Employees’ State Insurance Act (ESI Act), 1948, 160 employment status, 121–122 “Empowerment through Law”, 7 English legal system, 36–37 equality constitutional guarantee of, 24

296

Women and Law

gender, at workplace. See gender equality at workplace equality into home, 2 Equal Remuneration Act, 1976, 144–145, 164–168 Equal Remuneration Convention, 1951, 151 European Convention for the Protection of Human Rights and Fundamental Freedoms, 284 Eveneet Singh vs. Prashant Choudhury, 26 ex parte decree of divorce, 44 Factories Act, 138, 141n2, 144 “fair and reasonable” settlement, 50–51 fault, concept of, 32 feminist campaigns, 3–5 filing community rights, 67–68 Fineman, Martha, 54 Forest (Conservation) Act, 1980, 69 forest management, 74–78 Forest Rights Committees (FRCs), 62 Francis Coralie v. Union Territory of Delhi, 215 Freedom of Association and Protection of the Right to Organise Convention, 1948, 150–151 Gandhi, Rajiv, 265 gender equality at workplace collective bargaining processes and, 145, 155–159 female membership in trade unions, 152

legislations, 144 role of trade unions in promoting, 151–154 sexual harassment, 144 within union structures, 152–154 gender inequities in South Asia, 86 women’s land ownership, 86–87 Ghai, Anita, 244–245 GOI Bill, 13–15 counselling, 15 Parliamentary Standing Committee and, 15 plea of self-defence, 14 right to reside, 14 scope of, 13 shortcomings of, 14 women in relationships other than marriage, scope for, 14 Gottlieb, Roger S., 259 Government of AP vs P B Vijaykumar and Another, 203n70 “government programme” of land distribution, 63–67 grain bank system, 108 Green, J.M., 246 Gujarat riots, 52 Harvinder Kaur vs Harmander Singh, 1 health and law adverse sex ratio and right to abortion, 225–231 under Articles of Constitution, 209–210 Fatema and Alisha’s case, 221–225 health determinants, 216–217

Index 297

health rights activism, 210 health rights issues, 217–220 Indian legislative framework, 211–214 international treaties, agreements and declarations, 234n4 judicial pronouncements, 214–220 Medical Termination of Pregnancies (MTP) Act, 1971, 210, 212–214 National Rural Health Mission (NRHM), 235n5 physician-centered regulation approach to abortion, 213 PIL jurisprudence, 214–215 reproductive choices and freedom, 209 right to access and choice, 213 right to health, 208 right to life under Article 21 of Constitution, 216–217 sex-selective abortions, 227–228 sexuality, issue of, 206 Shanti Devi’s case, 220–221, 224 in social dimensions, 207–208 socio-legal advocacies on, 225–231 Hindu Adoption and Maintenance Act, 1956 (HAMA), 44–45 Hindu law, 3 Hindu Marriage Act, 33 monogamy, mandate of, 44–45 scope of Section 27, 34–36 Hindu Personal Law, 53 Hindu Succession Act of 1956, 87, 103 Hine v. Hine, 35

Hirway hypothesises, 130 Human Papilloma Virus (HPV) vaccine trial, 235n9 humiliating experiences, 43 ILO Declaration on Fundamental Principles and Rights at Work, 150 immorality, 43 Indian Divorce Act, 1869, 180 Indian Penal Code (IPC), 178 abortion and, 213 Section 498A, 40 Indian Succession Act, 269 Indira Kranthi Pathakam Poverty Alleviation Programme, 62, 81n13 industrial disputes, 146 adjudication in industrial courts, 146 conciliation proceedings for, 146 industry-wise awards of TN textile industry, 148 issues of wage revision in the banking sector, 148 positive aspect of addressing issues of gender equality, 147 terms of contract, 147 Industrial Disputes Act, 1947, 145–149 Industrial Employment (Standing Orders) Act, 1946, 144 Integrated Child Development Scheme (ICDS), 222 Integrated Tribal Development Agency (ITDA), 69

298

Women and Law

International Covenant on Civil and Political Rights (ICCPR), 284 International Fund for Agriculture Development (IFAD), 72 Islamic jurisprudence, 48 Janani Suraksha Yojana (JSY), 222 Javed v. State of Haryana and Ors, 217 Johri, Rachana, 244, 247, 249 joint forest management committees, 63 Joint Forest Management Programmes, 66 judicial meanderings on sex discrimination context of spousal or filial relationship, 177–180 discrimination against women at workplace, 181–189 discrimination in conjugal relationships, 179–180 distinction between classification/differentiation and discrimination, 174–177 gender division of labour, 191–194 legal reasoning on non-discrimination, 173 line between differentiation, classification and discrimination, 173–177 with reference to Hindu women, 180 right of representation to women, 175

scope and purpose of Article 15 (3), 173 situation of women in co-educational institutions, 174–175 special provisions, 189–191 spousal relationship in discussion on bigamy, 177–178 Kamalakar Ganesh Sambhus v. Master Tejas Kamalakar Sambhus, 35 Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh, 50 Kavita Choudhury vs. Eveneet Singh, 26 Kent, Deborah, 253 Kirloskar Brothers Ltd v. Employees’ State Insurance Corporation, 216 land, as centre of social conflicts, 87–88 land ownership by women, 86–87 agricultural land ownership, 103–108 in Bangladesh, patterns of, 94–98 in a changing political context, 98–100 entitlements to land, 87 ethnic conflict in Sri Lanka and, 100–102 liberalisation, impact of, 88–89 “livelihood” approaches to legal rights, 88–89 in Nepal, 98–100 in Pakistan, patterns of, 90–94 in sociopolitical context, 90–98

Index 299

Law Commission Report No. 217, 37 Lawyers Collective (LC), 4 bill on domestic violence, 7–11 Lawyers Collective Women’s Rights Initiative (LCWRI), 25 lifelong dependency, 46 lived or has lived, legal meaning, 2–3 live-in relationships, 26 living in a house as a cohabitee or as a visitor/ guest, 2–3 Madhu Kishwar v. State of Bihar, 150–151 Mahadeb Jiew case, 174 Mahendra Pratap Singh v. Orissa State, 216 Mahila Kisan Hit Adhikar Yatra, 103 Mahila Mazdoor Evam Laghu Kisan Morcha, 103 Mahmood, Tahir, 268 maintenance, right of, 33, 38 under Article 15(3) and Article 14, 39 constitutional claims and, 38–39 determination of fair and reasonable provision, 49 of divorced Muslim women, 49 “fair and reasonable” settlement, 50–51 matrimonial misconduct or “guilt,” invoking of, 41–43 morality and, 39–41

plea of bigamous marriage and, 39–43 under PWDVA, 2005, 24 remarriage of a divorced woman, 50 scope of Section 125, 38–39 under Section 18 HAMA, 45 under Section 18 of HAMA, 45 mataaoon bil ma’aroofe (fair and reasonable provision), 50 Maternity Benefit Act, 1961, 144– 145, 159–164, 184 Maternity Protection Convention, 2000, 151, 159 matrimonial property community of property, 36 conjugality and, 33–38 division at time of divorce, 32 division of property in different countries, 36–37 “no fault” divorce clause, 36–37 separation of property, 36 matrimonial relationship, 9 mehr stipulation, 46 Menakuru Renuka and Ors v. Menakuru Mona Reddy and Ors, 22 Menon, Nivedita, 242–243 Messrs Mackinnon Mackenzie and Company Limited vs Audrey D’Costa and Another, 191 Millennium Development Goals (MDG), 207, 234 Minimum Wages Act, 158 Mohini Jain v. State of Karnataka, 217 monogamous marriage, 33

300

Women and Law

Mrs R.S. Singh case, 182 Municipal Corporation of Delhi v. Female Workers (Muster Roll), 161 Municipal Council, Ratlam v. Vardhichand and Ors, 215, 217 Muslim women, rights of, 264–272 activism and reform from within, 269–272 of divorced, 266 economic, 46–51 MWA and, 265–266 uniform civil code and, 267–269 Muslim Women’s (Protection of Rights on Divorce) Act (MWA), 1986, 48, 265 Muslim Women’s Rights Network (MWRN), 270 Nand Kishor v. Kavita and Anr, 22 Narinder Pal Kaur Chawla v. Manjeet Singh Chawla, 45 National Commission for Women (NCW), 7 National Maternity Benefit Scheme (NMBS), 222 National Mission for Green India, 76 National Provincial Bank Ltd. v. Ainsworth, 35 National Rural Employment Guarantee Scheme (NREGS), 61, 69, 74 National Rural Health Mission (NRHM), 235n5 need, concept of, 32 Neetu Mittal v. Kanta Mittal and Ors, 22

Nepal, women’s land ownership in, 98–100 advocacy by women’s groups and networks, 98–99 Gender Equality Act (2006) on property rights, 99 implementation of ‘Joint Land Ownership Certificate’, 99 inheritance right to divorced women, 99 National Land Rights Concern Group (NLRF) and, 98 Nepal Women’s Commission, role of, 98 right of upbringing of the daughter, 99 right of widow in inheritance, 99 right of wife in husband’s property, 99 Nergesh Meerza v. Air India, 165, 184 Nizar v. Hyrunneessa, 50 “no fault” divorce, 36–37 Oak, Dr Sanjay, 230 Objects and Reasons of the Act, 159 Oliver, Mike, 257 Om Narayan Agarwal vs Nagar Pallika, 203n73 Optional Protocol, 284 Owen, Mary Jane, 242 ownership of property, concept of, 2 Padmanabhan, Manjula, 244 Pakistan, struggles for land in in Balochistan, 92

Index 301

inheritance rights and land rights, 91–92 Musharaf’s military rule, 90–91 Okara struggle, 90–91 in Punjab and Sind province, 92–93 Zia military regime, 90 Panchayat (extension to scheduled areas) (PESA) Act, 1996, 69 Paramanand Katara v. Union of India, 215 Parsi Marriage and Divorce Act, 1936, 51 Paschim Banga Khet Mazdoor Samity and others v. State of West Bengal and another, 216 Patterson, Annette, 247 P Babu Venkatesh and Ors vs Rani, 21 People’s Health Movement (Jan Swasthya Abhiyan [JSA]), 210 People’s Union for Civil Liberties v. Union of India and Ors, 216 P.G. Gupta v. State of Gujarat, 217 police abuse of women, 274–283 committed by Joint Special Task Force (JSTF), 275–279 disappearances and extra judicial killings, 281 legal repercussions, 283–285 narratives of victims, 279–283 39 Pounds of Love, 347 Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act), 1994, 226–231 prenatal diagnosis, debates disability grounds for abortion, 250

feminism vs disability activism, 241–243 Indian context of sex selection, 243–245 myths related with, 250 selection on the basis of disability, 241, 245–254 between the state and activists, 241 in terms of individual rights, 255–259 in terms of parental rights and autonomy, 251–254 Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, 240 cases filed under, 260n3 Priyanka Khanna v. State, 24 property, division of, 36–37 equal distribution of property in the US, 54–55 quality standards in, 55 property rights, 2–3 Protection from Domestic Violence Bill, 2001, 13–15 protection officers, 10, 18–19 Protection of Women from Domestic Violence Act (PWDVA), 2005, 1, 17, 45 definition of “shared household” in, 3 Fifth Monitoring and Evaluation (M&E) Report, 25–28 First Monitoring and Evaluation (M&E) Report, 18–19 Fourth Monitoring and Evaluation (M&E) Report, 23–25

302

Women and Law

interpretation to expression “wife”, 26 maintenance amount, 24 number of judgments passed under, 22–23 post enactment developments, 18–28 primary evidence, collection of, 26 respondent, definition of, 24, 26 right of residence, 23 rights of women in “domestic relations”, 26 scope of “shared household” under, 23 Second Monitoring and Evaluation (M&E) Report, 19–22 Third Monitoring and Evaluation (M&E) Report, 22–23 total budget for enforcement, 27–28 protective labour laws and unpaid work/unorganised economy, 131–139 conditions of workers, 133–134 denying presence of women workers and/or devaluing their work, 136–137 discrimination in wage-structure and wage payment, 137 health and safety aspects of work, 134–135 mode of recruitment of workers, 132–133 non-standard conditions of work, 138

poor labour administrative machinery, 138–139 TN Committee Report, 1998, 132–135 Punjab National Bank v. Astamija Dash, 160–161 R. Ramu v. Smt. Leelavathi, 24 Rajlingu v. Sayamabai, 41 Ramesh, Jairam, 75 Rameshchandra Daga v. Rameshwari Daga, 42, 44 Rapp, Rayna, 248 Reduced Emissions from Deforestation and Degradation (REDD), 76 relative, defined, 15, 20 reliefs under domestic violence bill, 10–11 Reproductive and Child Health (RCH) Programme, 234n1 respondent, definition of, 12, 24, 26 rights of forest-dependent communities, 63. See also Adivasi women patriarchal ideology and political character, 67–68 rights to live, 284 rights to residence. See also matrimonial property of deserted wives, 35 right to abortion, 242 Right to Organise and Collective Bargaining Convention, 1949, 150–151

Index 303

right to residence, 9–10, 21, 36 divorced woman, case of, 36 Rubi, Sultana Akter, 94 S. R. Batra and another vs Taruna Batra, 2 Sachar Committee, 271 Sanjay Bhardwaj and Ors v. The State and Anr, 23 Sardar, Fathima, 49 Sareetha case, 178–179 Satz, Martha, 247 Savitaben Somabhai Bhatiya v. State of Gujarat, 43–44 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, 60–63 rule number 3 (1), 62–63 rules (3–8), process of claims verification, 81n14 self-employed category, 122–123 self-help groups (SHGs), 63 separate property, 32 sex ratio at birth (SRB), 225–230, 239n72 Sexton, Marsha, 242, 256 sexual harassment, 144 sexuality, 32 sexual morality claims, 39–41 sexual purity, 32 Shahbano judgement, 47, 51–52, 265, 267 Shantistar Builders v. Narayan Khimalal Tortame, 217 shared household, 2–3, 9–10, 21, 26

Shariat Bill, 90 Shramshakti Report, 1988, 125–128 Singer, Peter, 251 Smt Suraj Kumari and Ors vs State of UP and Ors, 204n88 Sou. Ratnabai Jaising Patil v. the State of Maharashtra, 23 Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Ors, 26 Special Marriages Act, 269 Sri Lanka, ethnic conflict and land ownership, 100–102 “adequate housing” and “adequate standard of living”, 100 advocacy by women’s groups and networks, 102 basis of distribution of state lands, 100–101 Centre For Women’s Research Sri Lanka (CENWOR), 100 concept of male as head of household, 101–102 effect of tsunami, 100 inheritance rights, 100 joint or co-ownership, 102 Kandyan law, 100 Muslim law, 100 Thesawalamai (Tamilcustomary law), 100 Women’s Housing Rights Programme, 100 Srivastava, Ginny, 104 State of Punjab and others v. Mohinder Singh Chawla and Ors, 216

304

Women and Law

State of Punjab v. Mohinder Singh Chawla, 216 Subhash Kumar v. State of Bihar, 216 Suresh Khullar v. Vijay Kumar Khullar, 44 title, concept of, 32 Trade Union Act, 1926, 145, 149–151 UN Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, 284 uniform civil code, 267–269 United Nations Convention against Torture (UNCAT), 284 United Nations Framework Convention on Climate Change (UNFCC) negotiations, 76 United Nations Security Council resolution 1325, 283 United Progressive Alliance (UPA), 16 Universal Declaration of Human Rights, 284 Unnikrishnan J.P. and Ors v. State of Andhra Pradesh and Ors, 217 unpaid work/unorganised economy, 115 aspects of ineffectiveness of protective labour laws, 131–139 average weekly time spent, 119–120 categories of, 118 1974 Committee report, 123–124

denial of “worker” status, 117 feminist perspective, 120 Government of India’s Report (2000), 130–131 issues of non-collection/nonavailability of data relating to, 121 NCEUS Report, 121–122, 128, 131, 140 overlap of paid vs, 119 overview, 118–131 self-employed category, 122–123 Shramshakti Report, 1988, 125–128 SNA/non-SNA work, 119 subsistence work, 118 Time Use Surveys, 128–131 unpaid family workers, 118 unpaid household work, 118 work participation rates (WPRs), 129–130 Vandana vs Mrs Krishnamachari, 21 van samraksha samitis (VSS), 63 Varsha Kapoor v. Union of India and Ors, 24 V.D. Bhanot vs. Savita Bhanot, 28 Vimala v. Veeraswamy, 41–42 violence economic, 5 impact of violent conduct on woman, 5 police abuse of women, 274–283 sexual, 5 threats of, 5 Virender Gaur v. State of Haryana, 217

Index 305

Visaria, L.V., 242 Vishaka v. State of Rajasthan, 144, 193–194 woman, roles of a, 34–35 women judges in the Supreme Court, 204n92

Women’s Research and Action Group (WRAG), 270 Workers with Family Responsibilities Convention, 1981, 151 Working Group on Women and Land Ownership (WGWLO), 105