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constitution

Bharat Mata : Not An Idea Supported By The Constitution

by Avani Bansal
written by Avani Bansal

By Avani Bansal

(With RSS pushing the wall, with installment of Bharat Mata statue at RSS office, in Bareilly, UP, as latest as yesterday, it is now anyone’s guess, what a Bharat Mata holding a saffron flag is meant to depict – Hindu Nationalism – an idea that works for the RSS and BJP but an idea that is simply against the idea of the Constitution and the idea of India that emanates from it. So we need to think deeply of what we mean by ‘Bharat Mata’)

The Constitution of India doesn’t provide for a gender for ‘Bharat’. The very first Article of the Indian Constitution states that ‘India, that is Bharat, shall be a Union of States’ (Article 1). So why not let ‘Bharat’, just be ‘Bharat’, one which as per the Preamble – we, the people of India (‘all’ the people of India), have given to ‘ourselves’? Why add the suffix ‘Mata’, and does this add any value to our understanding or how we relate to our Nation?

Now this idea of seeing one’s nation either as a patriarchal or a matriachal figure is not uncommon and varies from country to country and time to time. Why is Germany – a father figure, requiring a male pronoun and why is United Kingdom – a ‘she’, is difficult to answer with some solid logic except by looking into the culture and political/historical milieu of every nation, and ofcourse some history. While gender neutral terms do exist – ‘homeland’ or ‘ancient land’, there are also some countries who don’t use any of these suffixes, oddly referred to as ‘orphans’ (vehemently oppose that term!), here :

https://www.mcislanguages.com/fatherland-vs-motherland-what-is-the-gender-of-your-country/

(Map from here)

How India came to be called ‘Bharat Mata is an interesting story in itself. But before coming to that – why does this question matter?

I will argue that merely using the word ‘Mata’ without thinking of deeper questions, does us a disservice. Here’s how :

First, the logic that ours is a land where women are worshipped as Goddesses has done precious little in actually increasing the collective respect that we accord to women in our society and in our country. As the title of the movie ‘Matrabhoomi – a nation without women’ shows on every possible gender matrix, India’s performance is worth hanging one’s head in shame. With the increasing crime rate against women, scant attention on women’s reproductive health, education of school girls, women’s safety and most importantly women’s represenation in public offices including politics, shows that women are far from being ‘worshipped’ in India. As in ‘Pratima Visarjan’, the famous painting by Gaganendranath Tagore, we think of women, like Goddesses, on specified days and then go on to submerge them in the rivers and in our active memories, making peace with everyday injustice against those most close to us.

https://commons.wikimedia.org/wiki/File:Pratima_Visarjan_by_Gaganendranath_Tagore.png

Secondly, this particular form of love for ‘mother’ has been well adorned and subjected to poetry, literature, essays, books amongst others, not just in India but around the world. In India, a mother’s love has reached the epitome of love’s expression with mothers cooking for their sons, until they can no longer cook and ‘mamma’s boy’ being taken as a badge of honour than showing lack of independence. The close familial ties in India means that the expression ‘mata’ or ‘mother’ can be naturally extended to the nation-state, with seemingly little or no objection from anyone and common rejoice in the emotional warcry of ‘living and dying for mother and motherland’. But here’s the challenge.

While we exalt the love of the mother, why do we have such trouble accepting ‘Bharat’ as just a woman – and by the same analogy, her in different roles – of a lover, a sexual being, a single woman, amongst others? What, for instance, explains the controversy around M.F. Hussain’s famous painting the ‘Bharat Mata’?

https://www.skyshot.in/post/7-greatest-indian-painters-of-all-time

Thirdly, if the idea of India is all inclusive, as per our Constitution, then exalting ‘Bharat’ as a Mother may in some way exclude people belonging to other religions who may not see the concept of nation tied to that of a mother or a father.

But then, if Jews have a fatherland, Russians have a motherland, why can’t we have a motherland? Because, we have never aped anyone. India is an experiment – one to design a unique solutions to all of its unique problems. Differences existed even when our Constitution was being drafted, with members belonging to extreme right and left wing, including moderates, trying to shape the India of their dreams. But it is the idea, as prescribed in the Indian Constitution, that won the day, and for our purposes has to be the milestone, from where Indian history, relevant for our purpose begins. So if our idea of Secularism comes with the Constitution, that of Gender Equality and where necessary of Gender Neutrality or Non-Discrimination, too comes from the Constitution. By linear logic, if we believe in the Indian Constitution as our guiding principle, then we need to rethink the idea of the ‘Bharat Mata’.

Finally, by calling Bharat ‘Bharat Mata’, we somehow think we have done what needs to be done for the women in the country. In other words, the rhetoric around the word ‘Mata’, and the trait of being satisfied with symbolism means that we think precious little about doing something tangible and significant to improve the lot of women. Not just that, the larger communicable disease of paying lip service deadens our collective spirit and the need to do engage in deeper questioning of both – the systemic and individual discrimination that we witness everyday.

Recently, on a field trip on Mendha Lekha village in Mahrashtra, which is a village with largely tribal population, popularly known for their collective form of decision making with the village motto – ‘In Delhi and Mumbai, we have our Government but in our village, we are the Government’, the headman of the village remarked – “For us, those who consider ourselves as guardians of the forests, engaging in any type of agriculture was like using the plough on the stomach of our motherland!”.

(Picture of Mendha Lekha’s slogan : From Author’s Diary)

Ofcourse, this attitude has softened over the years and they do engage in agriculture now, but they still have that awareness around what it could mean to do or not to do to one’s ‘motherland’. This may be an extreme example. But let’s think of more everyday ones – those sprinkled all around us. How are we okay with sexist jokes, wife jokes, sexist words for which there is no male equivalent (‘rakhel’ or ‘keep’ for instance), sexist songs which reduce women to objects – which we defend in the name of entertainment, sexist advertisements which we defend in the name of commercialisation; sexist behaviour such as non transfer of equal property to women inspite of there being a clear law for it – in the name of culture? How are we okay when we don’t see women in public spaces – not in garden, in sports ground, out of homes after evening hours? How are we okay with deafening silence of women in our private spaces, where women hardly have space to express their opinion? How are we okay when someone we knows character assasinates another woman in a powerful position, just because it is easy to drag her down by talking of her character?

And no, it’s not just about men discriminating against women, but women discriminating against their own gender too. And why identify ‘Bharat’ with a gender at all – isn’t there space for those who have fluid gender too? Don’t we also see discrimination against men in our society? Don’t we have societies in India, which are women centric, sometimes leading to reverse discrimination against men?

So it boils down to this. Where does our need for identifying our nation with a gender come from. I will argue, that assuming the best, even if the intent of its origin is well placed, there exists no purpose beyond empty slogans, repeated ad nauseum to keep the collective energy high in all political gatherings, and now increasingly to suit vested political agendas.

Whether it is BJP’s – Bharat Mata Ki Jai or Congress’s Sevadal’s – Bolo Bharat Mata Ki, Jai, Jai, Jai – everytime we sing out this slogan, we need to pause, and ponder – are we doing enough for women, are we doing enough for all humans, for all living beings around it? Any politics which is based on ‘humanism’, cannot stop at the slogan of women, it has to constantly work tirelessly towards emanicipation of women.

While cultural expression of ‘motherland’ definitely got a boost in popular imagination with movies such as ‘Mother-India’, the political expression of it is worthy of taking note.

Interestingly, the image of Bharat Mata that is used by the RSS and BJP to depict a Hindu Goddess, was born out of angst against the Britishers’ Divide & Rule Policy implemented first through the Partition of Bengal – mainly Hindu West from the majority Muslim East.

Abanindranath Tagore, decided to use Art to reclaim Indian heritage, painted – ‘Bharat Mata’, drawing upon the Japanese painter – Okakura Kakuzo.

(Image of Abanindranath Tagore’s first depiction of Bharat Mata)

This painting of Bharat Mata, was not to depict her as some Hindu Goddess, what one may perceive and RSS will have us believe looking at her saffron robe but as a pastoral deity holding ‘the four gifts of the motherland’: a white cloth, a book, a sheaf of paddy, and prayer beads; representing clothing, learning, food, and spiritual salvation. These symbols of Indian motherhood, which held emotive substance for Hindus and Muslims alike, are key to Tagore’s aim of conceptualising a ‘spiritual’ identity for his people, in direct contrast with the perceived ‘materialism’ of Europe.’

https://thecultural.me/abanindranath-tagores-bharat-mata-and-its-role-in-fostering-indian-identity-200413

Then came Bankimchandra Chattopadhyaya’s ‘Anand Math’ which celebrated India as a motherland -as a goddess, thereby taking this idea deeper into the imaginations of the masses. But while both Tagore and Chattopadhyaya’s idea of Bharat Mata came from a nationalistic fervour, it was the RSS which added the ‘Hindu Goddess’ tint to it. With RSS pushing the wall, with installment of Bharat Mata statue at RSS office, in Bareilly, UP, as latest as yesterday, it is now anyone’s guess, what a Bharat Mata holding a saffron flag is meant to depict – Hindu Nationalism – an idea that works for the RSS and BJP but an idea that is simply against the idea of the Constitution and the idea of India that emanates from it.

(RSS’s Picture of Bharat Mata)

Therefore it’s important to remember that those who championed the idea of Bharat Mata earlier, did so, because its origins were in ‘inclusive nationalism’ – that stresses on the emotions of seeing and treating one’s nation as a motherland, according women the highest respect in words and in action, and definitely a mother – who is a mother for all – a mother who doesn’t discriminate between her Hindu daughter and Muslim daugther.

One illustration of this is in Nehru ji’s own words who asked the people he met – “Who is this Bharat Mata, whose victory you wish?”, and then explaining that said “the mountains and rivers, forests and fields are of course dear to everyone” but what counted ultimately “is the people of India…”.

RSS, is now reversing this very idea of India and also that of Bharat Mata. While exalting Bharat Mata and installing her statute in different RSS offices, they are striking at the root of its origins – a Bharat for all, where all are treated with a mother’s love. As a people, we need to see RSS’s way of appropriating symbols and using them to serve their own political agendas, which is in sharp contrast with what that symbol originally represented – with the spirit of the Indian Constitution.

So everytime we use the expression ‘Bharat Mata’ now, we need to rethink and think deeper. We need to install Constitution in the hearts of the people, and make ‘the people’ realise that it us who are ‘Bharat Mata’. Bharat, thy name is enough.

Victory to the People, who have given this Constitution to ourselves. Yes, yes, we are the Bharat! And what we need, for a statute loving country that we are, unwilling to compromise on the politics of symbolism, which may have some purpose is a – Constitution in every square and circle of our country.

Avani Bansal is an Advocate and a Member of the Congress Party (Twitter @bansalavani). 

This article was first published on The Wire

https://m.thewire.in/article/women/bharat-mata-india-women-respect-safety-discrimination/amp

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Stand of The Supreme Court on Rights of Sex Workers: The Story so far.

by Guest Author
written by Guest Author

By Srishti Sarraf

The Indian sex workers case is making the top headline these days. The recent order dated 19-05-2022 given in the case of Budhadev Karmaskar v. State of West Bengal And Ors., popular as the sex workers case the Hon’ble Apex Court has categorically recognized that the basic protection of human decency and dignity under Article 21 of the Constitution of India extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children. Reliance has been placed on the earlier landmark judgments of the Court to emphasize & expound on the scope of the right to life under Article 21. Notably, this is not the first time when the Indian judiciary has held the dignity of the community of sex workers in its ruling. Two years back the Bombay High Court has held that “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.” A few years back the Delhi High Court also ruled that “simply because the victim worked as a sex worker before the incident in question doesn’t confer any right upon anyone to violate her dignity.”In a significant ruling, the Gujarat High Court has also observed that “Section 370 of the Indian Penal Code will have no application in a case wherein sex workers are engaged in prostitution of their own volition and not according to any inducement, force or coercion.” But the factor that is making the recent Budhadev Karmaskar v. State of West Bengal and Ors. Case super buzzing is the fact that this time the Court has issued significant binding guidelines to ensure that the community is being treated with dignity and not being abused. Further, to understand the depth of the case it is important to know about the history of the case along with some categorical development that has taken place in this case which is summarized right beneath.

BACKGROUND

This case was originally filed as an appeal before the Hon’ble Apex Court against the conviction order given by the Calcutta High Court in a case of the brutal murder of a sex worker living in a red light area in Calcutta in 1999. The factual matrix of the case highlights that the accused battered the head of the deceased again and again in a hideous and barbaric manner leading to putting a period on her breath, thus the Court naturally decided against the accused and the accused chose to file the criminal appeal before the Apex Court. Considering the heinous nature of the alleged crime the Hon’ble Apex Court straightforward dismissed the appeal however it later converted the case into a Public Interest Litigation suo motu by its order dated 14th February 2011 to address the problems of sex workers in the country. In its earlier orders the Bench consisting of Hon’ble Mr Markandey Katju, and Hon’ble Ma’am Gyan Sudha Misra, JJ. equivocally stated that their aim was “to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty”. The Bench observed that: “Sex workers are also human beings and no one has a right to assault or murder them. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution.’

REMARK ON PREVIOUS SIGNIFICANT ORDERS

The Apex Court has passed several orders issuing directions to the Central Government and the State Governments in this case. In its very initial order dated February 2014 the Apex Court directed the Central and the State Governments to prepare schemes for rehabilitation all over the country for prostitutes through Social Welfare Boards along with preparing schemes for giving technical/vocational training to them considering their right to live with dignity under Article 21 of the Constitution of India.

Subsequently, by another order, the Court constituted a panel headed by Mr Pradip Ghosh, Senior Advocate as the Chairman to discuss various aspects of the problems relating to sex workers and submit its report. It also directed the States/Union Territories and the Union of India to carry out surveys to ascertain the number of sex workers who want rehabilitation and who would voluntarily continue in the same profession. The Apex Court categorically stated that “it is important to educate the public to present the situation of sex workers in the country in the correct light, as it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.”

Thereafter the constituted panel identified three core areas for consideration including prevention of trafficking, rehabilitation of sex workers who wish to quit sex work and conditions conducive for sex workers to live with dignity under the provisions of Article 21 of the Constitution of India and submitted various reports time to time. The Panel subsequently gave many suggestions. The emphasise was given to the point that sex workers face great difficulty in getting ration cards, voter’s identity cards or opening bank accounts thus the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others. The Court confirmed that the suggestions made by the Panel shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. On 14.09.2016 a final report along with recommendations of the Committee was placed on record. Meanwhile, also by its various orders the Court emphasized the gravity of the matter and urged the Government to place the draft legislation before the Parliament at the earliest. In the wake of the Covid-19 outbreak that has caused severe disruption in normal life, it was realized that the class of sex workers fall under the list of vulnerable classes being adversely hit by the pandemic. Thus, the Court issued a direction for the supply of dry rescue so that the sex workers who are in dire straits can be rescued. Similarly, by order dated 10.01.2022, the Court had directed the State Governments/Union Territories to complete the process of issuance of ration cards/voter cards to all sex workers expeditiously.

PECULIARITY OF THE RECENT ORDER

By its very recent order, the Court has taken note of the periodical adjournments so taken by the Union of India in laying down a dedicated Bill. Thus, to fulfil the existing gap in the legal framework exercising its particular powers conferred under Article 142 of the Constitution of India the Court has passed six binding directions to be in force till the legislation finally comes up. Notably, the directions so issued relate only to the rehabilitation measures in respect of sex workers and other connected issues. These directions can be summed up as follows:

  1. Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance and proper medico-legal care.
  2. The State Governments were directed to survey all ITPA Protective Homes so that cases of adult women, who are detained against their will, can be reviewed and processed for release in a time-bound manner.
  3. The police and other law enforcement agencies were directed to be sensitised towards the rights of sex workers and were directed to treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
  4. The Press Council of India was directed to issue appropriate guidelines to protect the identities of sex workers, during arrest, raid and rescue operations. Besides, the strict enforcement of newly introduced Section 354C, IPC which makes voyeurism a criminal offence, was directed to be extended against electronic media as well.
  5. Measures that sex workers employ for their health and safety such as the use of condoms, should neither be construed as offences nor seen as evidence of the commission of an offence.
  6. The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, are directed to carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. It was also directed that the sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

Notably, it was directed to the State Governments/ UTs to act in strict compliance with the above recommendations made.

HAS THE APEX COURT RECOGNIZED SEX WORK AS A PROFESSION?

The Apex Court in its recent order has categorically held “that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21. The constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act, 1956”. Now, the controversial question here is whether the use of the term “profession” here implies recognition of sex work as a profession. Notably, the term profession has been used time and again in the earlier order of the Apex Court as well. But this cannot be termed as recognition of sex work as a profession. In this regard, the Court has clarified in one of its orders stating that “this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner.” Reportedly, on this issue, Tripti Tandon, advocate for the Durbar Mahila Samanwaya Committee and Usha Cooperative, which are parties fighting for the rights of sex workers, stated that the order “does not recognise or have the effect of recognising sex work as a ‘profession’”. Here, it needs to be clarified that from one perspective recognition of prostitution as legitimate work reinforces women’s position as subordinate or sexual objects for men. Having said this, one also needs to be mindful of the fact that the judiciary of this Country in a plethora of judgements has affirmed the stand that voluntary sex is not illegal. Thus, no reason exists to regard prostitutes as criminals and maltreat them.

THE WAY AHEAD

Notably, the matter is yet pending before the Hon’ble Apex Court and is listed on 27.07.2022. The Court has strictly directed that the Union of India file its response to the recommendations made by the panel within six weeks. Let us hope that the Government come up with some positive response and the class of sex-worker get dedicated legislation for the protection of their life and dignity super soon. May the current discussion of the law eliminate the moral hypocrisy and class discrimination surrounding the class of sex workers.

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अरे अभागे ! प्रेम करके तो देख !

by Guest Author
written by Guest Author

By सरला माहेश्वरी

हिजाब पहना तो मारेंगे
जींस पहना तो मारेंगे
बुर्का पहना तो मारेंगे
टाँगें दिखाई तो मारेंगे
घूँघट हटाया तो मारेंगे
बोली तो मारेंगे !
न बोली तो मारेंगे !

खिलखिलाई तो मारेंगे
मोबाइल रखा तो मारेंगे
प्रेम किया तो मारेंगे
नौकरी की तो मारेंगे
घर पर रही तो मारेंगे !
इस बहाने ! उस बहाने मारेंगे !
धर्म के नाम पर मारेंगे !
अधर्म के नाम पर मारेंगे !

तुम मारोगे जरूर
ढकूं या उघाड़ूँ कुछ भी
मेरे होने के लिए ही मारोगे
जनम के पहले ही मारोगे !

सच यह है कि तुम्हे
हमारा हिजाब भी डराता है ! हमारी जींस भी डराती है !
घूँघट उठाना भी डराता है ! हमारा बुर्का भी डराता है !
हमारा चुप रहना भी डराता है ! बोलना भी डराता है !
हमारा पढ़ना भी डराता है ! ना पढ़ना भी डराता है !
नौकरी करना भी डराता है ! और घर में रहना भी डराता है !
हमारा खिलखिलाना भी डराता है ! चुप रहना भी डराता है !
गोया हम इंसान नहीं मुट्ठी में बंद तुम्हारे डर का दूसरा नाम हैं !

पर वे दिन दूर नहीं जब
मार ! मार ! मार ! होगा पलटवार !
पलटवार !
खार ! खार ! खार ! ये मार ! वो मार !
ये मार ! वो मार !
तब लड़ाई बराबरी की होगी ! तब आएगा लड़ाई का मज़ा !!

अरे कायर पुरुष मत डर ! मत डर !
हम इंसान है ! मुट्ठी खोल हाथ मिला !
साथ चलकर तो देख ! अपने से निकल कर तो देख !
हमारी आँख से भी देख !
ज़िंदगी को फूलों की तरह महकते तो देख !

पागल ! नजरों को दो-चार करके तो देख !
अरे अभागे ! प्रेम करके तो देख !

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Priyanka’s Feminist Wave, UP Elections Now A Litmus Test

by Guest Author
written by Guest Author

By Radhika Barman

Congress party is bringing a big change in the country, starting from Uttar Pradesh, where it has given poll tickets to those who have suffered injustice at the hands of the ruling BJP.

Recently, Priyanka Gandhi came in news for empowering women by making them fight for elections. Asha Singh, whose daughter was raped and whose husband died in judicial custody, is to contest from Unnao on the Congress ticket. 

An ASHA worker who was roughed up by the police, a Congress leader who was jailed during Anti-CAA protests, and now yet activist who was attacked during Panchayat elections are all amonst the first list of Congress candidates in UP.  Priyanka Gandhi does seem to walk the talk in UP. On the other hand, BJP gave a ticket to Kuldeep Sengar’s wife in the panchayat polls only to cancel it later. 

Democracy is a government of the people, for the people and by the people, we were taught. But in reality, the democracy we have grown up with has been governments of, for, and by the politicians. For the first time in my memory, a major national party seems to change that.

Tickets have been granted to the most marginalized people born on the wrong end of the power structure, people who’ve known oppression, and people who have fought against it. They are survivors, not victims. They understand the pain, and will hopefully be empathetic legislators.

Yes, they may lack “experience and intimate know-how of the system”, and we have no idea of their competence since they have never been tested. But unless given the opportunity, how will anyone gain experience? 

Some may dismiss this as “tokenism”. But why would a party that is fighting a “do or die” election risk pandering to tokenism? Congress is talking of empowering the marginalized, and they are walking the talk. I, for one, rejoice. 

Whether the congress wins or loses, for the first time a major party has given tickets to the truly marginalized.

If change has to come, it can only come by empowering marginalized people who have known oppression. Others speak of upliftment, Congress in UP seems to be working towards it. It will be hypocrisy to dismiss it off on the name of tokenism, as it not only dismisses the challenges that will be faced by an abuse survivor to fight a tough political battle but also subscribes to the narrow-minded rape taboo. Instead of sympathizing over the “abuse” prefix let us be empathetic enough to acknowledge the importance of changing power structures, as that is the real fight in Indian democracy, much beyond elections. 

Lasting social change will only come when the most marginalized are empowered to speak for themselves. And that’s what feminism stands for – true equality for everyone and recognising the humanness in everyone. For this, what’s needed is not passive defence of toxic masculinity but affirmative actions of bringing people from all diaspora to have a real chance at contesting and winning elections. 

Thus, in a world of clashing interests – war against peace, nationalism against internationalism, equality against greed, and democracy against elitism, the UP elections are now a litmus test. It is a test of our humane credentials as to whether we subscribe to the idea of hate, violence, misogyny or love, peace, and progress. Whether or not, India will choose love over hate, is a question of time, but all we can hope for now is that the political fabric continues to strengthen itself to be inclusive.

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13th – A Lesson on Race, Injustice and Mass Incarceration

by Guest Author
written by Guest Author

By Arthita Banerjee

In the mid-1960s, Malcolm X once remarked, “If you stick a knife nine inches into my back and pull it out three inches, that is not progress. Even if you pull it all the way out, that is not progress. Progress is healing the wound, and America hasn’t even begun to pull out the knife.” Unfortunately, to this day his words are just as salient and prophetic as they were during the Civil Rights Era. Race, discrimination, and power are the holy trinity that have shaped the American Criminal Justice System. The 13thamendment to the United States Constitution passed in the year 1865 forever abolished slavery as an institution making it clear that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”. The declaration had a highly exploitable loophole one which whoever came to power, irrelevant of political leanings, always capitalized on.

A cinematic tour de force.

Ava DuVerney, the trail-blazing African-American director made the film 13th, named after the amendment making a very strong case for mass incarceration being an extension of slavery. The 2016 film which opened at the New York Film Festival earned a Best Documentary Feature nomination, making DuVernay the first African-American female director in history to score an Oscar nod in a feature category. The brilliance of DuVernay’s film is how well it maps out the myriad ways in which that very loophole has been exploited throughout time. The process not only destroyed untold lives but effectively transferred the guilt for slavery from the people who perpetuated it to the very people who suffered through it.

With an all-encompassing ethos, logos and pathos technique the film uses hard logic for rational inquiry, narrative and visual poetics to elicit emotional responses, and ample amount of rhetoric to build consensus on debated issues. 13th covers a lot of ground, all in a relatively chronological manner. The film begins by investigating how the abolition of slavery devastated the southern economy, the lynchings in the deep south, the Jim Crow laws, Nixon’s presidential campaign, Reagan’s War on Drugs, Bill Clinton’s Three Strikes and mandatory sentencing laws and the current cash-for-prisoners model that generates millions for private bail and incarceration firms.

We learn that although the U.S. is home to only 5% of the world’s population, it houses an astounding 25% of its prisoners and with black men making up barely 6.5% of the US population, they made up to 40.2% of the U.S. prison population. The graphic tally of the number of prisoners in the system is relatively stable through the 1940s but records a meteoric rise during the Civil Rights movement and the exponential growth continues into the current day. The quantitative data and the statistics used in the film reinforce the hypothesis of the prison-industrial complex being a cesspool for vested corporate interests using the system as a front to carry out modern day slavery.

Reality denied comes back to haunt.

D.W. Griffith’s landmark film, The Birth of a Nation, originally called the Clansman was a work of pro-confederacy, repugnant propaganda but unquestionably a very original work of art. At the time, most viewers knew little about slavery, reconstruction, Jim Crow and almost nothing about the Klan, and were all too ready to swallow the very worst of the movie without question. Birth of a Nation depicted lynchings in a positive light. No wonder the then sitting President, Woodrow Wilson, after watching the film, remarked that it had ‘History written with lightning’. DuVernay relies on plenty of clips from Griffith’s film along with photos and videos from the Jim Crow years as a reference point to show beyond doubt how African Americans have continually been portrayed as criminals in many forms of American media. Dr. King’s voice in the background of the montage of the clips, is especially haunting, as he says, “For years now, I have heard the word ‘wait.’ It rings in the ear of every Negro with piercing familiarity. This wait has almost always meant never…justice too long delayed is justice denied.”

What’s happened to the American dream? It came true. You’re lookin’ at it.

The film also investigates the vested interest of countless corporations who have prisoners work for them without pay as part of their sentencing. The arrangement has been facilitated by politicians who have implemented policies that feed off of the same media-generated terror of black criminals. The American Legislative Exchange Council, better known as ALEC, a coalition of corporate interests like Walmart and Verizon, introduces federal policies which arguably result in putting immigrants along with African Americans behind bars. The alliance then profits from the success of private prisons, surveillance, and prison labor. The film informs us how one in every four US legislators have ties to ALEC and DuVernay shows us NEWS clips where legislators have introduced bills and policies without even bothering to remove ALEC’s branding from them. The racial underpinnings of legislative policy and the active role of the state in criminalising and undermining the people of colour is more evident than it ever was.

DuVernay not only interviews liberal scholars and activists for the cause like Angela Davis, Van Jones and Henry Louis Gates, she also devotes screen time to conservatives and dissenting points of views such as Newt Gingrich, Grover Norquist and Michael Hough, a Republican politician and member of ALEC. To the credit of the filmmaker, neither Norquist nor Gingrich come across as if they were brought in simply to show evidence of inclusion and a way of giving some semblance of an argument from the other side of the aisle.

Having this diverse range of voices, makes the film more engaging and adds a level of complexity and a layer of credibility to the narrative. Each interviewee is shot in a location with low lighting that evokes an industrial setting and a low constant note plays in the backdrop that creates an ominous feeling. The aesthetics visually support the theme of prison as a factory, churning out free labor, that the 13th Amendment supposedly dismantled when it abolished slavery.

A good song reminds us what we’re fighting for.

The uniquely compelling use of powerful songs in the film by black artists appear as arresting animations that highlight politically-charged lyrics, like Public Enemy’s “Don’t Believe the Hype” and Nina Simone’s version of “Work Song”. The method is used primarily to transition between segments in the film and also reiterates its main theme. The song “Reagan” by Killer Mike is used to transition between Richard Nixon’s “tough on crime” and “law and order” period to Ronald Reagan’s “war on drugs”. The creative integration of rap and hip-hop songs in the film is significant to its theme because rap music has been historically used to portray the struggles of the African American people’s plight in America.

You can’t hold a man down without staying down with him.

We learn that the Nixon administration had two enemies, the blacks and the anti-war hippies of the left. The 1968 campaign ‘tough on crime’ was aimed at criminalizing both the groups with ‘specific drugs’ that are associated with them. DuVernay plays an astonishing recorded testimony from John Ehrlichman, the Assistant to the President for Domestic Affairs, in which he admits that the government created a crackdown that targeted left-wing dissidents…and black people. But always with the excuse of fighting the drug scourge. “Did we know we were lying about the drugs?” asks Ehrlichman. “Of course we did.” He goes on to say ‘You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

The film briefly touches on Ronald Raegan‘s Southern Strategy and Bill Cinton’s policies on how he incentivized states to adopt truth-in-sentencing laws, which required prisoners to serve at least 85 percent of their sentence. Clinton was also responsible for the Federal Three-Strikes Law that doled out life sentences to repeat offenders. On top of the Reagan-era mandatory minimum sentencing for drug crimes, these added up to more people, disproportionately people of color, in prison for longer periods of time. Democrat Bill Clinton arguably did the most damage in giving birth to the current prison industrial complex.

We also learn how awarding higher sentences are the norm for crack vs. cocaine possession and how plea bargains are accepted by innocent people too terrified to go to trial. A troubling percentage of people remain in jail because they’re too poor to post their own bail.

A spark that started a prairie fire.

The film’s most important voice belongs to Kalief Browder, a Black Bronx teen who spent three horrific years in jail, despite not being convicted of a crime. He had been arrested in the spring of 2010, aged 16 and was subsequently detained on Rikers Island without any conviction for more than 1,000 days. After being released, he committed suicide two years later as a result of the mental, sexual and physical abuse he endured in prison.

The film works its way to the current days of Black Lives Matter. DuVernay uses images from the past and juxtaposes them against contemporary rhetoric. We see clips of Hillary Clinton talking about “super-predators” and the voice of Donald Trump, romantically talking about ‘the good old days’ playing over footage of the KKK burning crosses, an image that was itself inspired by Griffith’s immensely racist film. It also touches upon Trump’s full-page ad advocating the death penalty for the Central Park Five, who, as a reminder, were all innocent. There is a montage sequence depicting the deaths of Philando Castile, Tamir Rice, Eric Garner and others. One clip that particularly stands out is the video of Philando Castile in his car after he has been shot by a police officer. Bloodied and in pain, he breathes quietly as his girlfriend records the situation, explains that they were pulled over for a simple broken tail light, and says to Philando, “Stay with me.” This section ends with a list of countless more black individuals who have unjustly died at the hands of police officers. 13th successfully argues that such events have not only become rampant, but can also seem sadly like ‘business as usual’.

Living is easy with eyes closed.

One of the major themes presented throughout the film is how unaware most Americans are of the larger racialized dynamics that were used to negatively impact vulnerable black communities — whether it was the re-enslaving of black people throughout the reconstruction period, using the war on drugs to specifically target black folks, or now using the American Legislative Exchange Council to fund private prisons dependent on black bodies for income. DuVernay was quoted as saying, ‘We’re giving you 150 years of oppression in 100 minutes. The film was 150 years in the making’. It indeed, very eloquently exemplifies how documentaries can be influential for enacting social change and it is through open dialogue and awareness that a demand for justice and reform can occur.

While the themes which the film addresses have long been relevant, they may have a particular relevance today, with the current conversation surrounding issues of police brutality and modern-day racism. The November 20th verdict of Kyle Rittenhouse who was found not guilty in the Kenosha Shootingsand completely acquitted of all charges including intentional homicide and 4 other counts, by an almost completely white jury, “sends the unacceptable message that armed civilians can show up in any town, incite violence, and then use the danger they have created to justify shooting people in the street” DuVerney tweeted.

A lot of Indians also voiced their support for the global Black Lives Matter Movement but putting things into perspective, Racism and colourism are very much a part of everyday discourse in an average Indian household. The discrimination based on skin color is partly a colonial hang-up and the idea that fair skin is superior has been thoroughly internalized by society. With no moral obligations, the idea of fair skin being equal to beauty is promoted among young men and women and as of 2019, the Indian fairness cream industry was worth $450 million.

Notably, these prejudices are not only limited to the colour of your skin but extend to the faith you practice and even the Caste you belong to. The fault lines between the majoritarian Hindus and the Muslim minority have become much worse with a Hindu nationalist government at the helm. No such activist film will ever see the light of the day in the Indian subcontinent with an ever repressive film censorship regime.

Won’t you celebrate with me?

13th is inspiring as it is wrenching to watch. With the use of didacticism in storytelling, the narrative presented in the story seeks to re-educate and eradicate the collective amnesia of American society. The film ends with images of “black joy,” as DuVernay put it — “photographs of black people and families celebrating and living their lives”. It’s a purposeful choice, and a humanizing one. “Black trauma is not our life,” DuVernay explained. “We are survivors.” Perhaps the most sobering quote of the entire film is delivered at the end by lawyer and activist Bryan Stevenson. “People say all the time, ‘well, I don’t understand how people could have tolerated slavery?’ ‘How could they have made peace with that?’ ‘How could people have gone to a lynching and participated in that?’ ‘That’s so crazy, if I was living at that time I would never have tolerated anything like that.’ And the truth is we are living in this time, and we are tolerating it.”

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Women Rights To Contraception In India And Preventing Unwanted Pregnancy In India

by Guest Author
written by Guest Author

By Advocate Meenu Padha and Varushi Yadav 

Introduction

It would not be wrong to argue that in India, the concept of human rights was first introduced and systematically institutionalised in 1950 when our country’s Constitution came into force. Many governmental programmes and methods have been created to supplement the rising acknowledgement of an individual’s rights, and the human rights movement has witnessed significant progress and success.

In India, the issue of reproductive rights remains uncertain. While the importance of both men and women’s rights to choose and control their own reproductive functions has grown in prominence, the concept’s introduction in India is particularly difficult due to the country’s complex social structures, where procreation is frequently seen as a social expectation and individual rights are often overlooked. Reproductive rights, in a broader sense, have received greater attention in recent years. This is due, in part, to the unwavering efforts of civil society organisations, who have emphasised the importance of international treaties in the Indian context.

Experts have pointed out that reproductive rights are an intrinsic aspect of human rights in general, as well as our Constitution on a national level, and that India owes them to all its women and those who identify as such. Reproductive rights and a larger human rights framework are mutually interdependent. Reproductive rights receive their meaning and force from long-recognized human rights, just as human rights cannot be realised without championing women’s reproductive rights. However, how the two are combined in practice is unclear. Indeed, explaining to an Indian audience that reproductive rights pertain to everyone, regardless of age or marital status, is a tough notion to grasp. It’s no surprise, then, that reproductive rights have yet to be fully established, despite the fact that they are an inalienable component of every human being.

Miserable Condition That We Need To Be Aware Of

In India, one woman dies every 15 minutes during pregnancy and childbirth due to lack of healthcare. Despite the fact that India legalised abortion over five decades ago, access is highly limited, and one woman in India is believed to die every three hours as a result of unsafe abortion. Despite national legislation prohibiting the marriage of girls under the age of 18, India continues to have the highest number of child weddings; and despite regulations and initiatives ensuring women’s maternal healthcare, India is responsible for 20% of all maternal deaths worldwide. Several states have established coercive population policies that bar families with more than two children from assistance programmes, government jobs, political engagement, and access to education and health care – all without ensuring that couples have access to a full range of contraceptive treatments.

Furthermore, Indian women face one of the world’s highest rates of HIV/AIDS infection and discrimination if infected, as well as forced abortions of female foetuses, trafficking for forced prostitution, custodial rape in government institutions, workplace sexual harassment, and harmful cultural practices that seriously undermine reproductive health. As numerous national and international stakeholders battle to give meaning to essential ideas such as women empowerment, rights, and choice, the right to reproductive health, including abortion, takes on special significance in the Indian context. A woman, for example, should have the freedom to choose whether or not she wants to marry, who she wants to marry, whether or not she wants to have children, how many children she wants to have, and the spacing between them. This is significant because, while both the male and female contribute to procreation, it is the female who is biologically responsible for ensuring the baby’ complete growth.

In the past, India’s reproductive health legislation and policies have failed to embrace a rights-based approach. Simply put, based on the various definitions of reproductive rights, they can be said to include some or all of the following rights: the right to safe and legal abortion; the right to control one’s reproductive functions; the right to access in order to make reproductive choices free of coercion, discrimination, and violence; and the right to access education about contraception and sexually transmitted diseases. The need for us to recognise and address these as rights has become even more apparent in the midst of the pandemic when women have been left to suffer as a result of massive changes in family and social dynamics, disruption in peer support, and a lack of health facilities – because they have not been informed and empowered to demand what is due to them.

According to a new survey issued, over 139 million women and girls in India currently use contemporary contraception techniques. The progress made in family planning over the last eight years is detailed in a study issued by FP2020, a global collaboration that supports the reproductive rights of women and girls.

Reproductive Laws And Rights One Should Be Aware Of

In 2021, the Medical Termination of Pregnancy Amendment Act 2021 was passed with certain amendments in the MTP Act including all women being allowed to seek safe abortion services on grounds of contraceptive failure, increase in gestation limit to 24 weeks for special categories of women, and opinion of one provider required up to 20 weeks of gestation. Abortion can be performed until 24 weeks of pregnancy after the MTP Amendment Act 2021 has come in force by notification in Gazette from 24th September 2021. The government’s public national health insurance funds, Ayushman Bharat and Employees’ State Insurance cover abortion completely, with the package rate for surgical abortion set at Rs 15,500 which includes consultation, therapy, hospital stays, medication, Ultrasonography, and any follow-up treatments. The package rate for medical abortion is Rs1,500 which includes consultation and Ultrasonography. 

Despite the fact that safe abortions are a state-mandated service, only around a quarter of abortions are performed at public health institutions. The majority of public health services in rural areas do not provide safe abortion services due to a lack of resources and equipment. Despite the fact that this law allows women to get safe abortions under specific circumstances, there are still a number of obstacles to overcome.

Covid 19 Impacts On Contraception And Safe Abortion Services

During COVID-19, the Ministry of Health and Family Welfare (MoHFW) deemed contraception and safe abortion services to be essential health care. COVID-19, on the other hand, has increased the existing difficulties in obtaining these services. Abortion is a health care service that saves lives and protects the health and well-being of women and girls. Understanding how organizations have adapted their safe abortion care programmes to maintain service delivery while seeking to protect their clients, staff and communities from contracting COVID-19, is vital, Covid-19 has wreaked havoc on many aspects of our lives across the globe, reproductive health and family planning are no exception. Over the last 18 months, access to women’s health care services, including contraception, family planning and abortion, has been severely disrupted. As a result, an estimated two million women have experienced unwanted pregnancies. Furthermore, a survey conducted by the World Health Organization suggested a 68% disruption to family planning and contraceptive services across 105 countries.

Although still reeling from the effects of the sudden pandemic onset, the health system over the last year attempted to adapt to meet the growing need for effective women’s care and foster preparedness. One shining example of this was the sudden rise in the provision and adoption of online teleconsultations and digital resources. Availability and accessibility posed two critical components that needed strengthening in care delivery. With the advent of digitalization in the country, spearheaded by the government’s flagship Digital India initiative, we have advanced every day, reaching women from more remote and far-flung corners of rural India with digital platforms. Due to a decline in in-clinic consults, travel restrictions, and overburdened infrastructure and practitioners, Covid provided a significant obstacle to getting such treatment, adding to existing limits in women’s health — social stigma, misinformation, lack of understanding, and family pressures. The health system was forced to prioritize temporary contraceptives like condoms and the oral contraceptive pill above longer-term choices like intra-uterine contraceptive devices (IUCDs) and sterilization, especially during the first lockdown, which limited the basket of treatment options for women.

Conclusion

The social backdrop in India substantially influences women’s reproductive behaviour, defining the pressures, limits, and options available to them. Gender-biased norms and practices that regulate family matters severely limit women’s ability to exercise their reproductive rights. At a higher level, there are various apparent inconsistencies in how policies are made, services are offered, and how demographic trends and aspirations concerning family size and composition impact contraception and abortion demand. Despite the fact that India was one of the first countries in the world to adopt legal and regulatory frameworks ensuring access to abortion and contraception, women and girls still face major obstacles to fully exercising their reproductive rights – it is time to change that. Let us vow to support and steer reproductive rights on this Human Rights Day, not only because we want healthier women, but also because we want empowered women and girls.

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Right to Information – An Overview

by Guest Author
written by Guest Author

By Mehreen Mander

Right to Information is perhaps one of the most effective tools to deepen democracy and actively seek accountability by enabling transparency. It gives the citizen the right to seek information held by public authorities which may be of public interest. This information can, among other things, be used as a basis for public interest litigation, and general means for justice. 

For instance, in 2018, the Ministry of Women and Child Development released a report called ‘Women in Prison’ which studied the condition of women in prison and informed action for the improvement of the same. It found out that there was a severe lack of female staff, basic sanitation and hygiene facilities which meant that physical, sexual, reproductive and mental health needs of female prisoners was being severely compromised. Most of the prisons are overcrowded. There are barely any provisions for education or vocational training apart from those for basic literacy. It also found that physical and sexual violence at the hand of authorities and other prisoners was commonplace, and complaints were not taken seriously. 

This report also gave suggestions taking into view National Model Prison Manual, recommendations of the Mulla Committee among others to improve the condition of such prisons and make arrangements for those women who live with their children. However, three years on, there has not been much reporting about the steps taken to implement these suggestions. A concerned citizen seeking to obtain information about the implementation of these suggestions in general, or the condition of a prison in particular, may do so by exercising their right to information. 

This article discusses the procedure to obtain information under Right to Information Act, 2005. It also discusses some important judicial precedents related to the exercise of RTI. 

How to exercise the right to information?

What Is RTI?

RTI means Right to Information. It was held to be a part of the fundamental right to freedom of speech and expression in the 1973 decision of Bennett Coleman and Co. v Union of India. The process and machinery to exercise this right is under the RTI Act, 2005. Citizens have the right to, among other things:

  1. to ask any question to the government to seek any information
  2. to take copies of any government documents
  3. inspect any government documents
  4. inspect any government works
  5. take sample of material of any government work

Who can ask for the information under RTI?

  • Any citizen of India can ask for information under the RTI Act. 
  • Overseas Citizen of India and Persons of Indian origin card-holders
  • Any functionary in their personal capacity
  • Any person representing a group of individuals like an association, HUF,

If you are out of India, then the RTI Application can be made with the Public Information Officer of the local Indian Embassy/Consulate/High Commission who will give you information regarding the amount of application fee and modes of payment.

Who Is Covered Under The RTI?

All bodies constituted under the Constitution or any other law or government notification and all public bodies. The president, the legislature, the judiciary, all related ministries, departments, agencies, any other body which is owned, controlled or substantially funded by the government.

However, security and intelligence organizations such as RAW, Intelligence Bureau, BSF, ARF, NCB etc. will not be covered under RTI. However, CBI and Directorate General of Central Excise Intelligence are not included in this exception.

Private bodies which are owned, controlled and substantially funded by the government are covered directly. Other private bodies are covered indirectly – that means if the government department is empowered to access the information from any private body, then the same can be accessed by citizens under RTI act, through that government department.

What Is the Fee?

There is an initial application fee. This varies from state to state. It is around Rs. 10/- as per Central RTI Rules. BPL citizens don’t need to pay this.

After that, there might be document charges which depend on the information you seek to obtain. As per Central RTI Rules, it is Rs.2 per A4 size page, Rs 50/- per CD and the actual cost in respect of printed publications, or Rs 2/- per page of A4 size extract copy. There is also a fee for inspection of documents. The first hour is free, however there is a fee of Rs. 5/- for every subsequent hour.

Normally, a Public Information Officer (PIO) is supposed to supply information within 30 days of receiving an RTI request. If the information is not supplied within 30 days, then the applicant is entitled to receive the information free of cost. However, if there are document charges, and the PIO has informed of such charges, then the days between intimation of charges and actual remittance of the document charges will not be calculated.

The fee can be deposited in cash, through demand draft or banker’s cheque or postal order, or even through stamps in some states.

Who do I approach to get the information?

You have to approach the concerned PIO in the department who holds the information that you seek.

A Public Information Officer is an officer designated by the public authority in every office whose job it is to provide information to citizens requesting for information under the Act.

Once you have identified which department, and or office holds the information you seek, then you have to identify who the concerned PIO in that office is. The list of PIO is available on the website of the public authority, or available physically on their premises. You can contact them or visit them to find out the list of PIOs. 

There might also be multiple PIOs in one public authority who deal with different subject matter. You can find out which PIO is the one concerned with your subject matter from the list, or by contacting the office. The contact details of such a PIO can be obtained from the public authority.

How Do I Make The Application?

You can make the application online or offline.

Offline procedure:

  1. Identify the RTI subject of the information you seek to obtain. Give it a clear and articulate “Topic Title.” This topic title is used for reference purposes, and to give the officer concerned a good idea.
  2. Identify the department or public authority concerned with the subject matter of your information. Then, identify the particular office or unit which holds that particular document that you seek to obtain. Whether the department or office holds the information might be available on website under the RTI Caption, or can be sought directly by contacting or visiting the office.
  3. Identify the concerned PIO who deals with the subject matter you are interested in. List of PIOs is available on the website or in office premises. The concerned PIO is the one who has direct access to the information held by or under the control of the public authority. Choosing the right PIO helps to expedite the process. If you want information held by Collector Office, then must not approach the Minister’s office.
  4. Search for RTI procedure applicable to the public authority because it varies. There are different RTI Rules for Lok Sabha, Rajya Sabha, Supreme Court, High Courts and Legislative Assemblies.

The following things must be adhered to

  1. Word Limit and Formats
  2. Application Fee
  3. Document Charges
  4. Inspection charges
  5. Mode of payment of fee
  6. Identify the precise document that contains the decision-making process, or which conveys the decision or implements the decision of the authority. Mention that you need that particular document. 

E.g., If you want to know why Mr. X was transferred from place A to place B, you have to find out on your own that that the reasons for the transfer are recorded on a document called Note Sheet. So, you request for “certified copy of note sheet containing notings of various officials and approval of competent authority for the transfer of Mr. X from place A to place B in the month of May, 2020”

  1. Draft an RTI. An RTI can be drafted in English, Hindi, or official language of the state, if contacting State PIOs. The PIO is required to assist a disabled or illiterate applicant, and even an applicant facing trouble in reducing his query to writing.

The following things need to be mentioned: –

  1. Address of the PIO
  2. Name and Address of the applicant
  3. Contact number of the PIO
  4. Subject matter of the information
  5. Information sought – the exact document, no need to mention reason for seeking it though. Don’t ask queries
  6. Submit the RTI
    1. Through speed post
    2. Registered post
    3. Hand delivery if the office is nearby 
    4. Through CAPIOs and Designated Post offices

Always get proof of submission of application for future use. Don’t use courier service or ordinary/book post for this use.

Online procedure:

If you are seeking information from authorities under Central Government, you can also make an RTI application online through rtionline.gov.in. You can do so by filling the form on the website. The word limit for this is 3000 characters (not words). If the text exceeds 3000 characters, then you can upload the application as a PDF as well. 

You are then required to make the payment through online modes: (i) internet banking through SBI and its associated banks (ii) using atm cum debit card of SBI (iii)credit/debit card of Master/Visa. You get a unique registration number which you can use for future reference.

Can A PIO Refuse Information to An Applicant?

Yes, there are certain subjects listed in Section 8 in the RTI Act on which the PIO can refuse information. These subjects include: – confidential information received from foreign governments, information prejudicial to security, strategic, economic or scientific interest of the country, information which breaches the privilege of legislatures, or information related to any third party.

Further, when the information sought relates to a third party, the Central or State PIO is obliged under Section 11 to give such third-party notice that disclosure of such information is sought to be made. The third party can make representation as to why the information must not be disclosed. The discretion about whether or not to disclose the information rests with the PIO concerned.

What do I do if I don’t get a response from the PIO?

The applicant who has filed the RTI Application, or a third party whom the information sought relates to, or has been supplied and is treated as confidential, is entitled to a first appeal if 

  1. there is no response within the stipulated time i.e., 30 days, or 
  2. the decision of the PIO is found be not satisfactory, or 
  3. if the information provided is incorrect/misleading, or 
  4. if the fees demanded is exorbitant
  5. or any other reason.

Then you can approach the First Appellate Authority (FAA) who is the officer higher in rank than PIO. Details about the FAA is available on the website or the office of the same public authority.

If you are not satisfied with the decision of the FAA, you can go file for a second appeal with the Information Commission at the Centre or respective states. The grounds on which this appeal can be made are provided under section 19 of the RTI Act.

Impact of 2019 Amendment Bill

The Right to Information (Amendment) Bill, 2019 was passed by the Parliament in July 2019. It proposes amendments to the term and salary of the Information Commissioners appointed under the Act.

Under the 2005 Act, the Chief Information Commissioners (CIC) and Information Commissioners (IC) were appointed by the State and Central level, for a term of five years. The Amendment Bill removes this provision giving power to the central government to notify the term of the office for both CICs and ICs. The Bill also brings the question of determination of salary, allowances, and other terms and condition of service for both state and central CICs and ICs under the authority of the central government. Further, the bill removes a provision of the 2005 Act which reduced the salary of a CIC or IC to the extent of pension or any other retirement benefit received by the virtue of having served in any government service.

These amendments are feared to compromise the autonomy and independence of information commissioners. They threaten the principle of federalism by vesting control exclusively in the hands of the Centre. It goes against the Supreme Court judgment in Anjali Bharadwaj v. Union of India wherein the court had stated that CICs and ICs shall be appointed on the same terms and conditions applicable to Chief Election Commissioner/Election Commissioner.

Important Judgments

One of the most contentious issue with respect to RTI Act has been the scope of definition of “public authorities.” Some judgments are examined hereunder.

Section 2(h) of the RTI Act states 

““public authority” means any authority or body or institution of self- government established or constituted— 

  1. by or under the Constitution; 
  2. by any other law made by Parliament; 
  3. by any other law made by state legislature; 
  4. by notification issued or order made by the appropriate Government, and includes any—
    1. body owned, controlled or substantially financed; 
    2. non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government”

Delhi High Court in National Stock Exchange of India Limited v. Central Information Commission stated that the mere establishment of a body under a statute does not by itself render it a public authority for the purposes of RTI Act. In Kribhco v. Ramesh Chandra Bawa, the Court stated the entity’s activities are also important in determining its status as a public authority.

In reference to the second part of the definition, it was held in Indian Olympic Association v. Veeresh Malik it was held that the aim is to bring bodies that may not have been established by or under a notification, but are still substantially financed owned or controlled by the government. In previous judgments such as Professional Assistant for Development Action v. The Jharkhand State Information Commission, it has been held that whether an authority is “substantial funded” must not necessarily be based on a determination of quantum of such funding, though it has been used as a basis in some decisions such as Indian Olympic Association. Benefits received by institutions, such as share capital contribution, subsidies, land allotment etc. were considered substantial funding in Hindu Urban Cooperative Bank Ltd. v State Information Commission. Registered societies, cooperatives, autonomous institutions like sports associations, schools and educational trusts have all been brought under the scope of “public authority” by various High Court decisions on the basis of substantial funding.

Similarly, in the interpretation of Section 8 of the RTI Act, which lists the information exempting from the application of Right to Information, there have been some landmark decisions.

In the case of CBSE v. Aditya Bandopadhyay, Supreme Court held that RTI Act will prevail over the bye-laws of examining bodies in context of all exams. A student had made request for inspection and reevaluation of answer books, which CBSE has rejected on the grounds that this information is exempted under Section 8(1)(e). The Supreme Court held that the examining body is bound to provide access to an examinee unless it is able to prove that it is exempt under the provision.

In the CPIO, Supreme Court of India v. Subhash Chandra Agrawal, the Supreme Court held that it is in public interest that the office of Chief Justice of India comes under “public authority” for the purpose of RTI Act. However, the details such as appointment letter, salary details, gifts, IT returns of an officer working at the Regional Provident Fund office were held to be personal information under Section 8(1)(j) in Girish Ramchandra Deshpande v. Central Information Commission. Similarly, in RK Jain v. Union of India the information related to charges, penalties and sanctions imposed on an employee were considered to be matter which did not have any public interest, so such disseminating such information would be an unwarranted invasion of privacy. 

In Canara Bank v. CS Shyam, Supreme Court held that Section 11 which deals with information relating to third parties is not an exemption but a procedural provision. It provides notice to the third party about disclosure of any information relating to them, and even if such a third-party objects, the information can be released in larger public interest.

The process for filing an RTI application has been criticized for being a tad cumbersome, and critics believe that it can be simplified. There also seems to be a situation where a lot of citizens are not aware about this right and the manner to exercise it. Nevertheless, it remains that right to information is a powerful tool available to the common citizen to seek information from public authorities. As seen above, the courts have taken a rather expansive view of what falls under the ambit of public authorities and what is the information that is available under the Act. Effective exercise of the right will bring about more transparency in government functioning and deepen democracy in governance. 

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An Oriental and Gender Perspective on Realisation and Creation of Property

by Guest Author
written by Guest Author

AUTHOR: Sayan Dasgupta

Any theoretical formulation or analysis of property must at the outset be noted as to what can be a theory of property, and what it entails to advance a philosophical discussion in the domain. Theories of property suffers from what is generally known as observer’s effect prevalent in the social sciences and general usage, which entails that the phenomenon, in this case a theory being studied is affected by the act of observing itself. In the lexicon of property, to answer the question of what property is, a series of “why” questions are of paramount. The question of “what is property” is intricately linked with answers of “why is property a meaningful institution” and “why do we have property”. 

The legal theories of property as a meaningful institution to sustain or which has sustained lies in distinction between explanatory and justificatory accounts. The explanatory account in all proportions tends to deepen ones understanding about the institution; a justificatory account provides a defend or legitimising directive. Both of the accounts can provide a normative understanding taking norms into consideration such as empirical and statistical accuracy, historical context, presuppositions and axiomatics. However, most of the theories of property are mere explanations for the institution of property and fails to provide a defence and legitimise it. Ergo, an addition of justification to the allocation of the material resources and assets provides more nuance and stability to a theory to stand on its own legs because of the fact that property is a normative institution.

Theories of Property 

A foray into precepts of the theories is pertinent to make a determination of the relevant theory and developing on it. The six mostly eminently deliberated theory are:

  1. The Natural Law Theory
  2.  The Labour Theory
  3. Metaphysical Theory 
  4. Historical Theory
  5. Psychological Theory
  6. Sociological Theory

The Natural law Theory lays down the principle that anyone who possesses the object is thereby the owner of the property viz. an ownerless thing attains the status just by being possessed by someone. 

The Labour Theory also known as the Positive Theory provides that any person who has put in effort, skills and labour to produce an object become the owner of that particular object by virtue of the labour.

Metaphysical Theory propounded by Kant justified property observing that a person is rightfully the owner of the object when he is emotionally connected to the object to the extent that it would cause his distress and adversely affect him if someone uses the object without his consent.

The Historical Theory produces a caricature of growth and development of property in stages. Firstly, every human being has a natural tendency to take things into possession and it is exercised independent of the law of the state. Second stage provides juristic possession viz. possession in law and in fact. Thirdly, ownership would then be recognized by law providing owner of the property with exclusive right and control. 

Psychological Theory deliberates that human has a pre-existing tendency to acquire, own and control things. Bentham supported that property is a conception of mind which lights an expectation to own and control things and use them to the fullest advantage. 

Failure of Theories of Property

The theories of property propounded in the Western philosophical society can be divided into two categories. Firstly, the notion that property is pre-social i.e., a natural right which is preceding to state and law which is propounded by Grotius, Pufendorf, Locke, Immanuel Kant, and Hegel; secondly, the notion on the contrary is property as social, a positive right which is existing by virtue of the state or law or community to secure other goals which has emanated from thoughts of Hobbes, Hume, Adam Smith, Bentham, Durkheim and Marx. These collectively form the set of Instrumental and Expressive set of theories of property. However almost every theory houses the Aristotelian concepts conceptualizing human flourishing and principles of free will; both of which are flawed in several ways. The theories lack a deontological approach and centre around human desires and needs. 

The precepts of libertarian free will at the outset must be delineated. The libertarian free will asserts that “human consciousness is not predetermined and that we are in complete control of our actions” and in a given situation, one could have done otherwise. The concepts of free will are an illusion notwithstanding the feelings or emotions. This is to illustrate that external factor that we are mostly unaware of, and over which we have no conscious control at least in part, determine our consciousness which in turn determines our decisions. 

In 1999, the celebrated master of lateral thinking, Edward De Bono, was asked by the British Foreign Office to come up with a solution to Arab-Israel conflict in Middle East. His reply to this was to send them jars of marmite. In short, he reasoned that since the average person living in the affected geographic region has a zinc deficiency, and the lack thereof causes people to become irritable and belligerent, endless supply of zinc-rich marmite would tone down the situation. This logic is sound and scientifically backed. This indicates that part of our consciousness is predetermined; not the whole. This illustration has compelled several thinkers to hypothesize that our consciousness might be entirely determined by external factors and that despite the fact that human mind is conscious, it is “no more free than the wind”.

Therefore, this in part destabilizes the Natural Law Theory, the Labour Theory, the Historical Theory and the Psychological Theory. Mirabeau has observed that theories cannot be only in realm of philosophical deductions, but needs to be relevant in the day-to-day experience and life style. Drawing inspiration from the theories formerly discussed, I would propose a theory separate from the stated theories with an undertone of Hindu scriptures related to gender and society. 

Oriental and Gender Proposition 

Hindu mythology is probably the only ‘theological’ ideology which focuses on and tries to reveal that gender and patriarchy is a social construct and has been invented. Mahabharat draws attention to a time when there was no concept of marriage and men and women were free to mate with anyone of choosing until it became relevant to establish fatherhood which by its virtue became linked to fidelity of women. Determination of fatherhood became important since property became important and for the purposes of inheritance. Hinduism provides a detailed illustration as to how humans craved immorality and this delusion supported the idea of property and inheritance of the name and wealth which would provide a virtual image of survival of the clan/family. These traces and paints a vivid structure of how patriarchy was invented in the society. 

Property was not pre-social. Humans had been nomadic for several years before settling down. Property came into existence when people wanted to come together to form a society and wanted a life of stability. This required adaptation of several modes of survival including means of sustenance. Man started using the resources around him to form a certain produce. Eventually, the resource consumption grew and accumulated which led to rise of duties and obligations for the one producing and everyone else. The one producing incurs a duty that he would not use that property to harm anyone else and would use it to his satisfaction. On the other hand, it became the duty of everyone else to not interfere in his enjoyment of the produce. This further enhance the concept of “mine and thine” and marked a territory. This subsequently enhanced when interdependency between people increased on different objects of sustenance ergo giving rise to concepts of possession and ownership of things. 

Hence, private property is a construction as a result of survival and product of experiment rather than conscious effort or pre-existing tendencies. An object comes into existence when there is a requirement of that certain object. 

Sir Henry Maine also provided for a similar authority observing “property once belonged, not to individuals nor even to isolated families, but to larger societies, composed on the patriarchal model”. This provides an insight that the resources had been collectively owned at one point of time from which there was a deviation as a response to external stimuli. For instance, patent application generally includes documents like description of invention, inter alia drawings or other illustrative material providing reference of invention or patent claim which materialises the conception of how the object is going to be used and accounts for the history of production of ‘object’ (giving importance to labour, skills and originality). Thus, providing importance to external stimuli, the proposed theory finds context in modern society and property.

The notion of property has trickled down to identification of permanence, gender and unity of the family/clan. And it exists now for the exchange of goods, contractual considerations and self-satisfaction. Hierarchy of society plays an important part in driving a person to acquire more property and becomes a never-ending loop of consumption.

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

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Tribulation Of Innocent Hands

by Guest Author
written by Guest Author

By Advocate Meenu Padha; Co- Authors – Tavleen Kaur & Vinayak Sonkar

India needs an instant nationwide awareness and campaigns against the child labour to protect and safeguard children from the economic and social consequences which has been faced due to Covid-19 crisis and lockdowns. Although some of us are practicing social distancing and actively working from home in the hope of a much better tomorrow, there are still a large number of children who may be victims of seemingly positive measures. One effect is the increase in the number of child labour. For many children, the Covid-19 crisis means little or no education due to poverty or less means of technology which will ultimately lead them to lag behind their peers. This will prompt a large number of children to stop learning even after we return to “normalcy” post COVID. Many children who are not in school will embroil themselves in child labour. In the two waves of Covid-19 in India, lakhs of men and women, many of whom did not have stable jobs and depended on daily wages, became unemployed or faced low income which had a spiralling effect on their children. Due to lockdown, the schools are unable to run physically and only a few people can access or receive online education. In the first wave of Covid19 in 2020, more than three-fourth of children  did not have access to online learning facility and more than half of the children did not have access to any learning materials. The increasing anxiety of parents, shortage of learning material, low income and non-access to online education, all together has led to an increase in child labour. 

The epidemic is clearly appearing to be a child rights crisis, which is increasing the risk of child labour, because more families are falling into extreme poverty. As stated by the United Nations Organisation, 160 million of child labour cases have increased to 8.4 million over the  consecutive four years and Covid-19 has been a major contributor to this. Children from poor and disadvantaged families in India are now at a greater risk such as dropping out of school and being forced to work. Lakhs of families in emerging and developing countries are employed as daily workers in the informal sector (rickshaw drivers, construction workers, street vendors, workers in small factories, etc.). In particular, they have lost revenue due to the overwhelming effects of the global lockdown and the pandemic. The sharp decline in income means that families cannot afford basic necessities or money for children’s health care or education. In the formal sector as well, factory closures in countless countries have led to massive layoffs and loss of income, with major consequences being faced by lakhs of workers and their families. As adults are at a higher risk of contracting the coronavirus than children, the ultimate pressure is increasing upon children specially in poor families, to take the whole responsibility of family and bridge the gap of basic necessity. Since the production base is still looking for the cheapest labour, children are considered to be a very cheap option for such labours and work to meet their demands. Even before the epidemic, the figures for child labour in India were dismal. According to the Census 2011 statistics, the overall number of child labourers in India between the ages of 5 and 14 is 4.35 million (major workers) and 5.76 million (marginal workers), for a total of 10.11 million. Furthermore, there are 22.87 million teenage labourers in India, bringing the total (in the age bracket of 5-18 years) to about 33 million.

In addition to child labour, there are myriad facets of this problem which both result from child labour and also contribute to it. As per the National Crime Records Bureau, in India, one child disappears every eight minutes. India also has the highest child trafficking cases. Children are sometimes removed from their homes to be purchased and sold in the market. In other situations, youngsters are duped into falling into the hands of traffickers by being offered a job, only to be enslaved upon arrival. There are many children trafficked for a variety of causes, including work, begging, and sexual exploitation. Because of the nature of this crime, it is both difficult to trace these children and also prevent their exploitation effectively due to weak law enforcement. While we have an estimate of the issue, understanding its exact scope, and getting ascertainable numbers is very hard. Though the majority of child trafficking happens within the nation, a considerable number of children are trafficked from Nepal and Bangladesh. 

Child trafficking is caused by a variety of factors, the most common of which are poverty, ineffective law enforcement, and a lack of high-quality public education. The traffickers that take advantage of children can be from another area in India, or could even know the child personally. Children who return home after being trafficked are typically shunned by their communities rather than welcomed. Poverty, a lack of education, and the need to financially support their family are some of the core causes of child trafficking in India. India’s unemployment rate is quite high, with the United Nations Development Programme estimating it to be 3.5 percent. Furthermore, there aren’t a lot of income opportunities. When youngsters are given the opportunity to labour, they are more likely to be exploited. Children in poverty are frequently compelled to trade sex in exchange for a place to live or food to eat. Some parents have even been compelled to sell their children to traffickers in order to get out of poverty or pay off debts. Gangs frequently traffic children and compel them to beg on the streets. Contemporary cases of begging can be seen in most of the metropolises. Not only are these children being forced to beg for money, but a significant number of those on the streets have had gang leaders forcefully remove their limbs or even pour acid into their eyes to blind them. Those children who are injured tend to make more money by invoking the empathy of the people, which is why they are often abused in this way. Organ trafficking is also widespread, with traffickers tricking or forcing minors to give up their organs.

As per UNICEF, over 300,000 children under the age of 18 are presently being exploited in more than 30 violent situations throughout the world. While the bulk of child soldiers are aged 15 to 18, some are as young as 7 or 8 years old. A huge number of youngsters are kidnapped and forced to serve as soldiers. Others work as porters, chefs, guards, servants, messengers, and spies. Many of these young soldiers have been sexually assaulted, which frequently results in unplanned pregnancies and sexually transmitted illnesses. Some youngsters have been coerced into carrying out crimes against their families and communities. A lot of children are also made to steal, snatch, kill with a mindset that it is an essential for their living . 

Currently, 152 million youngsters, 64 million girls and 88 million boys, labour across the world. This represents nearly one-tenth of all children worldwide. There are about 10 million youngsters in India who are actively engaged in or pursuing employment. Despite considerable attempts done in recent years by the UN, ILO, and individual nations like India, this remains the case. Failure to minimize the number of minors exploited in job circumstances is due to the socio-cultural fabric that allows it to happen and condones the offence, as well as the enormous demand for inexpensive child labour in agricultural, mining, carpet-weaving, garment, brick kiln, and other sectors, as well as the pervasive poverty that continues to be both a cause and a function of child labour.

Selling of minor girls for prostitution is a big subject of concern. These minor girls are syndicated to enormous abuses one cannot even imagine. They are molested, harassed, raped, exploited, stalked, beaten and many more injuries are caused to those small teeny bodies which are sabotaged with cigars, burns, wounds and blood through their legs. While they feel the pain in the earlier years, in later years, girls come to accept it as their fate.  

They perceive it as a way of living and consider sexual abuse as a necessary exchange for drugs, food, shelter, protection and other basics of life. Children who are exploited for commercial sex are subjected to child pornography and child prostitution transactions. Commercial sexual exploitation (CSE) of women and children earns around $400 million USD each year in Mumbai alone. According to the Ministry of Women and Child Development (MWCD), there are around three million prostitutes in the nation, with an estimated 40% of them being youngsters, since there is an increasing desire for extremely young girls to be initiated into prostitution according to customer preferences. Sexual exploitation has many serious implications for these youngsters. 

Now the main question which comes up every now and then is  – Will the government and general public take strong steps to prevent the abuse of the children and stop child labour and child trafficking? 

On a national level, human trafficking is expressly prohibited in Article 23 of the Indian Constitution. To combat the issue of child trafficking, the Indian government has also passed further legislation and modified the Indian Penal Code (IPC). The Immoral Traffic (Prevention) Act of 1986 (ITPA) amends the Suppression of Immoral Traffic in Women and Girls Act of 1956. (SITA). Human trafficking for prostitution was deemed illegal by SITA, and legal action was detailed for anybody participating in human trafficking in any capacity.  ITPA made laws friendlier towards the victim. ITPA also created a system to rehabilitate victims of trafficking and prevent them from bring trafficked again. In 2013, IPC was amended to create new provisions to address Trafficking in India that is more in accordance with the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Particularly Women and Children. State governments have also been observed taking steps to combat child trafficking by attempting to create systems and regulations at the state level. Non-governmental organisations that strive to solve various parts of this issue fill up any gaps in the execution of plans and regulations.

Although India is regarded as a centre for human trafficking, the Indian government places little emphasis on the issue. Hence the way in which the current legal system operates to address child labour in India can be considered as coming into direct conflict with the trend of independent child migration that is seen across the country. Therefore, legal measures are not enough. Every person needs to understand the gravity of this issue, make themselves aware, and keep their eyes and minds open, to help the government where ever possible in tracking the cases of child labour and preventing it. 

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Gender Implications of Pre-Nuptial Agreements

by Guest Author
written by Guest Author

Author: Sayan Dasgupta

The sporadic distribution of persons, identity, culture, language has always been a part of the Indic civilization. This heterogeneity implied a myriad of personal laws; both codified and uncodified. Where such diversity is engrained in the social fabric of India, such diversity could also mean plurality of gendered injustices. Delhi High Court on this note grappled and encouraged the Centre to act on the idea of Uniform Civil Code such that it doesn’t “remain a mere hope”. However, the Courts’ activism is not recent. Kerala HC in Agnes Alias Kunjumol v. Regeena Thomas also highlighted the need for such a legislation for subsistence of marital institution.    

The tapestry of Bharat and its consonance with debate of UCC is a stuck gramophone. Where one camp argues for uniformity and homogeneity of personal laws, another camp argues that it would bludgeon religious freedom. However, a fruitful discourse is impossible without a substance of the legislation or a bill to test the veracity of either of those camps. Notwithstanding that, what can be subjected to a litmus test is the Goan Uniform Civil Code which has been lauded by the former Chief Justice of India. The Portuguese Civil Code, 1867 has several peculiarities, gross gendered inequalities, and notions of cis-gendered male heteronormative superiority. To no extent can it be called uniform or civil. Nonetheless, a particular peculiarity that catches attention which is invisible in the Indian jurisprudence of personal laws finds home in the Goan UCC- pre-nuptial agreements. 

Pre-nuptial agreements or “Ante-nuptial Conventions” as provided in Section V of the Code are agreements entered into by spouses to stipulate their assets for the purposes of protecting their wealth from the ‘economically inferior’ spouse. The general matrimonial sphere of India finds such agreements as void but may lend an evidentiary status. The Goan UCC contrarily finds such agreements valid as long as they are not in contravention with the Code and are recorded by way of a public deed (Article 1097 of the Code). The ensemble attempts to displace the state law with the contractual terms agreed upon in the event of divorce or dissolution by the death of a spouse. This practice is commonplace in the western legal system. In lieu of such an agreement, there is an obvious waiver of protections ordained by the state laws or customary practices. 

The concept of pre-nuptial agreements is not alien to India. One of the first cases recording such a reality was the case of Hamidunnessa Biwi v. Zohiruddin Sheikh, (1890) and Tekait Mon Mohini Jemadai v. Basant Kumar Singh, (1901) where the Courts held agreements were invalid on grounds of public policy. However, there is a contrarian position held in cases like Nawab Khwaja Md. Khan v. Nawab Husaini Begam, (1910) where the Court found such agreements as valid and good in law. Section 40 of the Divorce Act, 1869 which governs the dissolution of Christian marriages requires the Court to look into the existence of any such pre-nuptial agreements. In any case, such validity of the agreement was not accorded to Hindu marriages where marriage isn’t viewed as a contractual relationship, but rather a sacrament. Supreme Court on several occasions has observed that “public policy” does not have an ascertainable form but rather, changes with the change in time. At this juncture, it becomes pertinent if the lens of public policy should change concerning pre-nuptial or post-nuptial agreements. 

In the Indian matrimonial context, apart from the predilections of religion, customs, kinship, dowry, and class, the wealth distribution or the wealth gap always favours the man in the relationship putting the female counterpart in the ‘economically inferior’ and precarious position. More often than not, such economic vulnerability of the female counterpart is due to the lack of autonomy in matrimonial relations tinted with patriarchal notions of ‘bread-winners’ and ‘homemakers’ apart from the obvious lack of choices in making life decisions before or after marriage. Institutions of religion or customs do not seem to offer much reprieve either. Kerala HC set such a precedent in Ranjith P.C. v. Asha Nair where it was set that it is reasonable to expect household work and chores from a daughter-in-law. 

Given this context parallel to societal import for the importance of marriage, women would always be, evidently, at a more vulnerable position. Since most pre-nuptial agreements are for wealth and asset protection in event of dissolution, they would always be in favour of the ‘economically superior’ spouse. Conventionally, that would be at the expense of the woman. It would always be the husband at a dominant position, given the interpretation to the husband’s position in the family unit; regardless of the financial situation to set the terms of the agreement and forgo the protection of laws and customs set in place. This adversely impacts the social and economic well-being of the woman in the relationship and contributes to financial vulnerability. Furthermore, it would also amplify the magnitude of the unequal distribution on the vectors of gender.  

This sense of entitlement can be harkened back to the labour theory of value of Karl Marx. The doctrine simplistically argues that what is created by the labour of the person is to be owned by them due to the input of labour power. This was Marx’s blue-collar notion of work which now cannot be considered sound. What is pertinent herein is the feminist and the moral critique of the proposition which questions the narrow view of what is considered labour, power, and productivity. To analyse this, a divorce case of 1986 in New York can be taken into consideration. A man, who was pursuing his medical studies gets married to a woman in an arranged setting. As a commonly expected practice, the wife was expected to stay at home and take care of the household. While the wife carried out such duties, the husband was able to finish his education and build a successful practice of 14 years. Events occurred which resulted in a divorce. The husband argued that he does not owe anything to his wife considering his practice was built on independent labour power and participation in the market. The Court disagreeing held that the wife contributed value to his practice and thus, had ownership interests in his practice given her participation. The wife’s work was embedded in the successful medical practice. Thusly, she was awarded 40% interest in the medical practice as a divorce settlement. 

Devaluation of a woman’s work in the household and entitlement of a man in the family over assets is the oldest, most sexist story of humankind. It is a story sewn so deep into the Indian social fabric that it seems and appears normal. It is the living embodiment of compelled subservience. In a marriage, especially in an Indian context, women are the minority in wealth holding, raising the balance of convenience in favour of men to negotiate and disenfranchise their spouses. Where superficially, it may seem like a move of empowerment, the ground reality screams a different story of exploitation. Sabina Martins, a women’s rights activist observed that “…women across religions being thrown out of their marital homes within months of marriage”. Adjunctively, the waiver of an equitable division of property, or “communion of assets” i.e., equal distribution of property leaves the woman at the mercy of her husband. The Government was recently considering the incorporation of such pre-nuptial agreements into personal laws for women empowerment. Whether such prerogative is right has been answered by the arguments abovementioned. The Courts, as the sole arbiter of truth, with the knowledge of historical injustices and jurisprudence must always consider gender as a variable, especially in the domain of marriage. A supposed reflection that such agreements could offer an ounce of equality is not sufficient cause for reconsideration of “public policy”. The terms of any premarital agreement will always echo the superior bargaining power and resources of the prospective husband. 

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

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