governance, political economy, institutional development and economic regulation

Posts tagged ‘human rights’

#Gender & #sexuality norms #India 2018

LGBT 2

In Britain, “buggery” between consenting adults became legal in 1967. Let me hasten to assure that I use the crude term “buggery” not to mock the LGBT community. This is the physical act, defined by its antiseptic moniker “voluntary carnal intercourse against the order of nature”, which was excised from Section 377 of the Indian Penal Code (IPC), 1860, by a five-member Constitution Bench of the Supreme Court last week (Navtej Singh Johar case). Fali Nariman had argued in the Suresh Kumar Kaushal case. 2009 that the term used in the IPC was so vague that it could be interpreted to include all sexual acts which were for pleasure alone and not aimed at procreation – including fellatio, use of a condom by a hetrosexual couple and use of an artificial device by two women. All of them, per Mr Nariman, could be prosecuted. Luckily now that  transgress into privacy has ended.

The court tagged the right to choose one’s gender and sexual preferences to the expansive fundamental rights vested in our Constitution, which encourage every individual to express themselves, form like-minded communities and live enriched, free lives, albeit with reasonable restrictions.

Incremental inclusion of LGBT over a decade

Events have been moving in this direction for nearly a decade. In 2009, the Election Commission of India, under CEC Navin Chawla, encouraged voters to voluntarily register their gender as “other” rather than male or female, if it described them better. This revolutionary move was balm for the transgender community, traditionally called “hijra”, which were outlawed in the colonial period and exists today as society’s underbelly. It is easy to exclude a community legally but much tougher to excise it from social memory. Rare is the Indian parent who would risk not getting newborn children or newly-married couples blessed by hijras.

Anjali LGBT crusader

On July 2, 2009, the Delhi High Court made history by allowing the petition of Naz Foundation. It held that Section 377 of the IPC was unconstitutional. The 2011 census followed and recorded 0.5 million transgender people on a self-declaration basis.

The next milestone was the April 2013 judgment by a two-judge bench of the Supreme Court (National Legal Services Authority case) which recognised “transgenders” as a minority identity. It was the first step towards fuller state inclusion for benefits and protection. Unfortunately, the bill for enabling such rights has been under consideration since 2014 in Parliament.

Meanwhile, strongly influenced by the international narrative to actively protect individual privacy against the State or private predators, a nine-judge bench of the Supreme Court on August 24, 2017 (Puttaswamy case) ruled that individual privacy was a part of the constitutionally guaranteed fundamental rights. Using privacy as an entry point, the court also ruled that the law must not be normative on what consenting adults could do in private.

Why is the judiciary being implicitly used to make law?

Given this progressive trend, the decriminalization of Section 377 was a logical conclusion. But the lay person could well ask why adopt a tortuous, disjointed judicial process for what have been comprehensively dealt by a proactive legislation recognising first, that gender diversity is a reality and second, sexuality is a mutual choice not limited by laws or morality.

The answer is yes, these issues should be debated comprehensively and legislated on by Parliament. The judiciary has no original legislative power. It makes or unmakes law only as a default option on a petition for judicial review of whether or not a law is aligned with the basic framework of our Constitution (Keshwanand Bharati case 1973).

Electoral compulsions erode a consensus, within Parliament, on social reform with electoral gains are meagre

To be fair to Parliament, it reflects what citizens feel, think and expect. The tyranny of democracy is that it binds us to where we exist today, not where we might want to be a half century hence. History has also not helped. Rule by the Mughals, followed by the British Raj, had stymied organic social development. Alternative sexuality was hardly an issue in Ancient India. As evidence, one needs go no further than Section 282 of the Indian Penal Code, which defines “obscenity” as anything “lascivious”, appealing to “prurient interest” or which may “corrupt” or “deprave” persons and prescribes punishments for such acts or objects.

The exception to this section is revealing. Ancient monuments, their sculptures and art are exempted from prosecution under obscenity laws as are any sculptures or art meant for religious purposes. Our ancient culture and religion predates the puritanical social norms of the eighth century AD in Arabia and eighteenth century AD in Europe, which were internationalised through conquest.

Western civilisation turned the corner on including LGBT a half century ago

Europe

We are stuck in a past which is not our own. A past abandoned, even in Europe, from where we partially assimilated our prudish present. A survey by daliaresearch.com shows that six per cent Europeans identify themselves as being Lesbian-Gay-Bisexual-Transgender (LGBT). Those between 25 to 35 years are four times as likely to claim an alternative gender as compared to those above 60 years. Gender and sexual diversity is the future. But State support is crucial. In the UK, same-sex marriage is legal. But 20 per cent of LGBT have battled hate speech or worse from social conservatives.

Generating data on LGBT can improve their access to public services & make their electoral weight visible

If the European share of LGBT to total population is applied to India, we would have 70 million LGBT people. They may very well exist and if united would be a bigger vote bank than all our minorities other than the Muslims. But fear and oppression keep them in the closet. Changing the pattern of acceptable social behaviour is a long, hard struggle. Lofty judicial pronouncements change behaviour only when embedded, by law, into the lives of real people who study, marry, have or adopt children, work productively and raise families securely. This is a long haul given the current parliamentary passivity on this subject.

IIT Delhi geeks are at the frontier of change

It is endearing that 20 geeks from the Indian Institute of Technology, Delhi, an institution of eminence, are at the frontier of change. They challenged the regressive Supreme Court’s two-judge decision of December 11, 2013 (Suresh Kumar Koushal case), which had overturned the Delhi high court decision ruling that Section 377 was unconstitutional on the narrow ground that unproven harm to a small minority was not significant enough to warrant judicial intervention to curtail the legislative privilege of Parliament.

Three emerging institutional trends

The decision in the Navtej Singh Johar case last week illustrates three important trends. First, institutional collapse is not imminent in the higher judiciary. This is good news since they will have to lead social change in the face of parliamentary passivity.

Second, the Court, by coming out strongly against majoritarianism, has stirred up the political pot. This will continue to boil during the upcoming elections.

Third, failure of governance continue. Much can be done by executive action and in judicial review sanctified by the courts. Why cannot the government simply change the provision for survivor pensions for a “spouse” to “partner” as a one-time choice to be made by the pensioner? Similar changes in the definition of “family” for health insurance or social benefits can embed sexual and gender diversity deeply. Aadhaar was driven by executive zeal, and so can social reform.

Adapted from the authors Opinion Piece in The Asian Age, September 10, 2018 http://www.asianage.com/opinion/columnists/100918/377-need-a-real-change-in-state-society-norms.html

Book Review: For Reasons of State

For reasons of state

India is a young nation. Three fourths of us probably have no recollection of the ravages of the Emergency period from January 1975 to March 1977.

This book was first published in 1977, just after the national elections, called by Prime Minister Indira Gandhi – in a bout of self-delusion as a referendum on the Emergency, swept out the Congress – they lost all seven parliamentary seats in Delhi – and brought in the lightly glued together Janata Party.

The authors, both veteran journalists, describe their work as an “investigation into the workings of (the) monstrous administrative machine during the Emergency and the devastation it left behind”.  It is a perfect informational tool – not just a blend of statistics and a chronological listing of events. The authors say they chose “to be accurate rather than sensational”. But the level of granularity they uncover in their investigations and the lively characterisations they add, make people and events come alive, giving the narrative a gut wrenching, virtual face-time feel.

Cashing in on current trends

Why re-publish the book now?  It is the fortieth anniversary of the Emergency. But that seems less than sufficient reason, even though the new version has a foreword by the celebrated “Indian” journalist, Mark Tully. The authors perceive a salience – the potential for constitutional subversion under today’s majority government, just as it happened during the Emergency.

The muscular track record of the Modi government and its commitment to implement deep political change evokes a visceral fear, amongst those, who apprehend that a major constitutional change can negatively impact minorities and the marginalised. The liberal order is being challenged universally, which heightens the fear that India is no exception.

Is India under a virtual emergency today?

Mark Tully points out that drawing a parallel between the Emergency and the situation today is illusionary. This assessment resonates well. Citizens voted overwhelmingly for the BJP in 2014. But the Congress has also been re-elected with a majority in the past. But each time, events conspired to temper authoritarianism. Today the BJP remains in a minority in the Rajya Sabha.  A vociferous, albeit small, opposition is active in Parliament. Democratic safeguards have actually worked. Consider Uttrakhand, where the judiciary quashed an attempt to impose Presidents rule in 2016. In Bihar 2015 and in Karnataka 2018 non-BJP governments were elected, illustrating that electoral rights remain intact.

Tully also opines that unlike the Emergency, today there is an absence of widespread anger. However, fear of a vigilante backlash or the termination of government largesse via advertisements or project funds, has muted criticism of government by non-government organisations and driven some of the mainstream media to self-censorship.

The authors believe that there are strong personal and institutional characteristics shared by the Indira Gandhi and the Narendra Modi governments. A massive mandate to rule is one such. This inevitably emboldens leaders to take strong, decisive action. There is also a desire to move quickly for results. Shackled by lumbering institutions, charismatic leaders seek to short circuit public processes. In doing so, they bring in trusted advisers, not accountable to the public – Sanjay Gandhi in the case of Indira Gandhi and the RSS in the case of the Modi government. Curiously, however, both these widely disparate centres of extra-constitutional power seem to target Muslims and Dalits.

Wannabe Lutyens denizens, charlatans and craven officials abandoned public interest 

The most interesting aspect of the book is that readers are invited to be flies on the wall, whilst dodgy decisions are taken by the high and mighty of the Emergency days. The authors do not shy away from naming specific politicians, officials and wannabes like “Begum” Ruksana Sultana, who were all actively complicit in subverting the rights of citizen in Delhi.

Ruksana Sultana

Nasbandi (forced sterilisation) and resettlement of slums were the key disrupters of social contracts and civic responsibilities during the Emergency. Slums were levelled overnight. 7 lakh hapless residents were transported to 27 resettlement colonies on the outskirts of Delhi with little more than 25 square yard demarcated plots and patchy one room houses. But under-provisioned sanitation facilities and drinking water, no markets, no access to health care or schools made these peri-urban deserts, seem designed to make the poor disappear and leave Delhi looking green and beautiful. They bred disease, death, and anger. In the 1984 organised hate crimes against Sikhs, it is these resettlement colonies like Trilokpuri and Mangolpuri, where the worst atrocities were committed.

Two perceptive chapters dwell on the travails of the Delhi police and the reasons behind its ready capitulation to manipulation by politicians during the Emergency. Imaginary threats were materialised and minor criminals magnified into severe security threats. Tragically there have been too many “Dacoit” Sunders (a Delhi badmaash who was built up into gun toting dangerous gangster, later captured by the police) who, like “Sant” Bhindranwale, in Punjab, were manipulated into larger than life figures only to meet their untimely end in a burst of righteous police action.

If a grim account of abandoned constitutional responsibilities, grossly violated official procedures and craven official machinations for personal glory can serve to entertain – this is it. Whether it puts readers off voting for the BJP or impels them to do exactly that, remains to be seen.

Adapted from the authors book review in Business Standard, July 31, 2018 https://www.business-standard.com/article/beyond-business/intimations-from-the-emergency-118073100018_1.html

When I’m 64

Paul Mccartney

(photo credit: wikipedia)

Paul McCartney -he of the long, brown hair who hung out in the company of the Beatles in the 1960s-wrote this song when he was just 16. Clearly he was not an economist and didn’t need to be hesitant about asking his “love” to project forward by 48 years, her likely feelings for him at the ripe, old age of 64. We don’t know what she told him then, but today it is unlikely to be the right thing to do.

First, not many lose their hair by 64 and the ones that do, get them back with renewed vigour, courtesy a visit to Dubai for a hair boost. Second, it is unwise to ask the modern spouse if she would lock the door if you remain out till 3 AM. The likelihood is that you would be opening the door for her when she comes in at 6! Third, the role distribution between men and women is no longer about the former mending a fuse and the latter knitting a sweater. Nor do women typically look forward to have three grandchildren dangling at their knees. But Mccartney got one thing right when he plaintively asked “will you still feed me when I am 64”.

The way to a man’s heart remains via his stomach and it is not just food that we refer to. In rural areas women have traditionally done most of the drudge of farming, animal husbandry and cottage industry along with fetching firewood, water and often carrying the weekly supplies home from the village market.  But now, even in urban areas, supporting the family by earning an additional income has become a critical role for women. In fact several studies of recent migrants to urban areas find that women adjust far better to the demand for skills in cities than men. The bulk of the labour demand in the urban informal sector is for housework and hospitality related jobs. Nannies in Gurgaon earn Rs. 40,000 a month, the same as recently graduated engineers. Women are better equipped to meet this demand than men, who tend to slide down the labour profile, from being proud farmers to become daily wagers in manual unskilled muscle-power related work or fall into petty crime. A woman with a steady income is consequently not to be sniffed at.

Even amongst the rich, women today play an important role in salving the stomach. Take for example the case of club memberships in the megacities. With a limited number of “legacy” clubs- leftovers from the colonial past- and growing demand, membership of a decent club has become a problem, even if you don’t have Groucho Marx’s hang up of not wanting to be a member of a club which would accept him. Most clubs however do have fast track arrangements for women memberships. A spouse, with a membership in these “legacy” clubs, is consequently a fairly efficient way of ensuring perpetual access to decent food and booze at ridiculously low prices, relative to the extravagantly generous environs.

Our PM Modi is already 64 and so must sympathise with the problems of his age cohorts. We know that this makes little electoral sense for him. After all, less than 5% of our population is above 64. Far better to cater to the 80% who are below 44. But here four things the PM should think about.

First, caring for the elderly is no longer a family effort. Nuclear families and migration make that impossible. Catering to the health needs of the old is a completely different specialization than looking after working adults. India is hopelessly deficient in this skill and public health institutions do not even waste their time on this “marginal” activity. The one thing the PM should remember is that social norms are built around how the elderly are treated. Even elephants will remain with a sick and elderly herd member, providing comfort and company. Should India not have a similar publicly funded HealthLine for the elderly?

Second, better nutrition, awareness and altered social expectations have enhanced longevity. The fond, greying, father marrying off his daughters and setting off for pilgrimage; his worldly duties done, is a Bollywood caricature, observed more in the breach, than in real life. India does not use its elderly purposefully. We tend to look at the “jobs and employment” pie as fixed. An elderly person occupying a job is seen as one job less for the young. This age based discrimination violates the fundamental principle of human rights and the economic principle of merit-based employment. Callow youth can be a disadvantage in many jobs and experience coupled with reasonable health, an economic virtue. A society which seeks to provide productive employment to the “specially enabled” cannot logically discard the elderly from its work force.

Third, the PM and FM Jaitley should regulate our private Medical Insurance Industry better. These companies blatantly cherry pick medical cover for those above 60 and make it available only to those who can either fudge their heath reports or to the few who enjoy “perfect health”, even after 60 and that too at astronomical premia.  There is no insurance cover available for those who have the typical “old age” health concerns of hypertension; diabetes and other assorted pains and aches. The pity is that there is significant demand from those who are more than 64 and can pay handsome premia but who want to insure against all possible “old age health risks and care”. Surely there is a business opportunity there which Insurance Regulatory and Development Authority (IRDA) should nudge the private health insurers to exploit as a desirable private good?

Lastly, FM Jaitley was recently reported as supporting the reduction of interest rates for kick starting the stagnant realty sector. Whilst, setting interest rates should be strictly in the purview of the RBI Governor, could Mr. Jaitley please think about extending tax and interest rate benefits to “retirement homes” of which, yet again, the supply is far less than the demand, across all price segments. Caring for the old and giving them a good send-off when they die, is a nit-picky, long term business investment and does not lend itself to the typical realty practice of theme of doubling your money in two years by hiving off an leveraged assett. Big, established, realty and hospitality companies, with a reputation to protect, can only be attracted into the retirement home segment if the deal is sweetened by government.

Hopefully the FM will include this “public benefit” in the 2015 budget. This writer is waiting to sign up for one such “home” now that I am 62.

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