The National Democratic Alliance (NDA) government has cancelled Foreign Contribution Regulation Act (FCRA) licences of about ever since it came to power in May 2014.
The home ministry, which took the action, has justified it saying these organisations were technically violating various provisions of the Act.
Cancellation of license would mean that these NGOs are no longer eligible to receive foreign funds. It should be noted that several of these NGOs are involved in rights-based advocacy work, especially working in the domain of human rights.
A plethora of civil society organisations have issued statements against this mass cancellation of FCRA licences stating that this is nothing but an ‘abuse of legal procedures’.
They also “unequivocally condemned the present use of the FCRA as a tool of repression by the current government”.
Organisations such as Greenpeace India, Amnesty International India, TARSHI Delhi and the Centre for Social Justice were all signatories to this statement.
Even the National Human Rights Commission has issued a notice to the home ministry on the issue.
“Prima facie it appears FCRA licence non-renewal is neither legal nor objective and thereby impinging on the rights of the human rights defenders in access to funding, including foreign funding,” the apex human rights watchdog in the country said in the notice.
The FCRA is an intimidating law, especially since the original Act came into force in 1976 during the Emergency by the Indira Gandhi-led government. The Act, at that time, prohibited MPs, electoral candidates, political parties, judges from accepting foreign contributions.
Even “correspondents, columnist, cartoonist, editor, owner, printer or publisher of a registered newspaper” were included in the ambit of the definition of candidate under the Act. The objective was certainly to remove all voices of political dissent, though the ostensible legislative intent suggested that the law was to restrain foreign intervention from internal, domestic matters.
The new FCRA, amended by the Finance Bill 2016, has many changes that render it more severe than its predecessor.
For one, the registration under the previous FCRA was permanent; the present law has altered this, mandating that FCRA licences would expire after five years.
A renewal process would mean that prescribed authorities, that is the State, would have arbitrary power to decide whether an NGO can renew its licence afresh.
The new law also puts a 50 percent restriction on the proportion of foreign funds, thereby controlling the way an NGO spends its money.
Another change, and perhaps a significant one, is that the 1976 law targetted political parties. The new law, however, aims at “organisations of a political nature”.
The FCRA Rules, 2011, drafted by the United Progressive Alliance government, defines what “organisations of a political nature” may include – farmers’ organisations, students’ unions, trade unions, workers’ unions, youth forums, women’s wing of political parties, youth organisations based on caste, community, religion, language and “any organisation… which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public causes”. The list is astonishing as it clearly targets people and organisations that want to critique, censure and challenge present political discourse.
It is absolutely appalling that the government would amend the legislation in a way that all “organisations of a political nature” are rendered powerless, while political parties are vindicated for prior violations of the law.
In 2014, the Delhi High Court indicted both the Bhartiya Janata Party (BJP) as well as the Congress of receiving foreign funds in violation of provisions of Foreign Contribution (Regulation) Act (FCRA).
The verdict came after a public interest litigation (PIL) was filed by the Association for Democratic Reforms. A division bench comprising justice Pradeep Nandrajog and justice Jayant Nath asked the government and the Election Commission (EC) to act against the two political parties for accepting foreign funds from Vedanta subsidiaries.
The question, at this juncture, is why is the government apprehensive of NGOs whose work is to democratically interrogate so that constitutional rights and freedoms are not violated. Another question is whether the FCRA is indeed a tool of repression as civil society organisations have declared?
In April 2015, a legal analysis was developed by the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.
It stated that FCRA norms and regulations “are not in conformity with international law, principles and standards”. The FCRA violates the right to freedom of association, an integral freedom incorporated within the International Covenant on Civil and Political Rights, to which India is a party.
The right, though not absolute, are amenable to reasonable restriction; however, the analysis suggests that restrictions such as “public interest” and “economic interest” invoked under the FCRA cannot be termed as legitimate restrictions as they are too ambiguous and may give rise to arbitrary and discretionary powers.
Therefore, should the FCRA be repealed? Perhaps not, as regulation of NGO funding is a significant matter. However, curbing the voices in the civil society by way of a colourable legislation is unacceptable and simply put, draconian.
First Published On : Dec 30, 2016 21:24 IST
In July, 2016, the Food and Beverage Alliance of India (FBAI) published a pledge by all its member companies, under the patronage of a global self-regulatory alliance of foods and beverage companies on ‘India’s Policy on Marketing Communications to Children’. Keeping in line with this pledge, several top food and beverage corporate brands such as Kellogg, Pepsi-Co, Mondelez India, Nestle and Coca-Cola, are preparing for the 31 December deadline for halting all advertisements of products directed at children below 12 years of age. This policy could, in many ways, completely change the ways in which the largest foods brands in the country are promoted. Moreover, it could also mean enormous changes in the public health landscape of the country.
The FBAI policy states that all its members will either commit to “only advertise products to children under the age of 12 years that meet common FBAI pledge nutrition criteria” or not to advertise their products at all to children below the age of 12. The former commitment would require member companies to adhere to World Health Organisation (WHO) guidelines for the establishment of nutrient profiles, which is used for various applications, including marketing of foods to children, health and nutrition claims, product labelling logos or symbols, information and education, provision of food to public institutions, and the use of economic tools to orient food consumption.. The policy will apply to marketing communications in a range of media — television, radio, print, cinema, online (including company-owned websites), DVD/CD-ROM, direct marketing, product placement, interactive games, outdoor marketing mobile and SMS marketing. The FBAI, the policy states, will also publish periodic reports to demonstrate compliance with this policy.
A number of countries have already established legislations and policy guidelines on food advertising for children and youth, understanding the implications of advertisements on the dietary practices of these age groups.
South Korea passed the Special Act on Safety Control of Children’s Dietary Life in 2009. The objective of the law is to contribute to the promotion of children’s health by regulating necessary matters for providing safe and well-balanced nutritional foods to help children develop good eating habits. To promote this objective, the act banned television advertisements on specific food categories during children’s prime time viewing, and also proscribed against gratuitous incentives when advertising children’s foods on TV, radio, and internet (such as offering free toys or gifts with the purchase of nutritionally inadequate foods). In the United Kingdom, the Committee on Advertising Practice (CAP) has prohibited advertising foods high in fat, salt or sugar (HFSS) on children’s television, stating the media has a responsibility to help curb the rise in childhood obesity and levels of diabetes.
The EU Health Coalition has also come up with a campaign called ‘AVMSD: What about our kids?’, describing it as “a key opportunity to free Europe’s young people from health-harmful marketing”. It targets the current Audio Visual Media Services Directive (AVMSD) by restricting the hours in which advertising for harmful and unhealthy foods and beverages would be aired. The three key measures in this campaign is that no television advertisements for alcohol or HFSS would run between 6 am to 11 pm, there would be effective marketing techniques in place against product placement, and it would be ensured that these rules would apply to foreign broadcasts as well.
Responsible advertising and marketing of food and drinks directed towards children and the youth is a World Health Organisation (WHO) prerogative, and it’s a key policy action within the WHO Global Action Plan 2013–2020 for the Prevention and Control of Non-communicable Diseases (NCDs), which was endorsed by the World Health Assembly in May 2013. A recommendation from WHO is that governments play a leading role in reducing children’s overall exposure to food marketing and setting rules on the persuasive techniques companies can use, with a view to protect children from the adverse effects of unhealthy foods. Other key recommendations included that private sector markets understand that marketing of foods and drinks to children is an “international issue” and that there is a need for the corporate sector to be equally accountable for the outcome “…to promote responsible marketing including the development of a set of recommendations on the marketing of foods and non-alcoholic beverages to children, in order to reduce the impact of foods high in saturated fats, transfatty acids, free sugars, or salt, in dialogue with all relevant stakeholders, including private-sector parties, while ensuring avoidance of potential conflict of interest”.
At this point, India lacks a framework of public health, legal and economic policies for effective implementation of the WHO recommendations that provide for a comprehensive reduction of marketing of foods high in saturated fats, trans-fatty acids, free sugars and salt to children. However, the FBAI policy guidelines seem like a good first step towards tackling this issue. That being said there needs to be regulations in place within the National Health Policy to cater to this issue, and it must be driven by the Ministry of Health, rather than being anchored by an alliance of private sector companies.
First Published On : Dec 15, 2016 08:47 IST
The Allahabad High Court on 8 December delivered its judgment on the very sensitive issue of triple talaq, a judgment that’s sure to have legal as well as political implications, and will have a lasting impact on the future of gender equality in the country. The court said that the practice of triple talaq is unconstitutional, and is by all means, a violation of rights of Muslim women.
Triple talaq or talaq-ul-biddat is a patriarchal Islamic practice of divorce where the man has a right to obtain divorce, instantly, by the mere unequivocal statement of the word “talaq” three successive times. The practice grants men the unbridled power to dissolve a marriage with a single word, without the consent of the wife.
For years, this form of divorce has been debated by legal experts as well as academicians. In addition, women’s rights activists have also called for the reform of the Muslim personal law that discriminates against women, contributing to violence and abuse, and is against the right to equality.
The order of the Allahabad High Court, calling the practice cruel and demeaning to Muslim women, declared: “No Personal Law Board is above the Constitution.” A single judge bench of Justice Suneet Kumar, who passed the order while hearing the petition of an aggrieved woman whose husband had arbitrarily divorced her, stated: “The personal laws of any community cannot claim supremacy over the rights granted to the individuals by the Constitution.”
He also stated that, “Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce […] it is a popular fallacy that a Muslim male enjoys, under the Quranic Law, unbridled authority to liquidate the marriage.”
Several previous Supreme Court judgments have also attempted to invalidate the infamous practice of triple talaq. In 2002, Shamim Ara v. State of UP and Anr. held that talaq-ul-biddat, though, instantaneous, does not dissolve a marriage nor end the liability of a husband to pay nafaqah or maintenance. In essence, the landmark ruling invalidated arbitrary triple talaq, and became precedent for numerous high court rulings involving Muslim divorce law.
In Bombay High Court judgments such as Najmunbee v S.K. Sikander S.K. Rehman (2004) and Dagdu Pathan v Rahimbi Pathan (2002), it was held that a husband does not have the unrestrained and arbitrary power to repudiate a marriage at will.
Maulana Khalid Rasheed Firangi Mahali of the All India Muslim Personal Law Board (AIMPLB) said the practice cannot be unconstitutional, as “…the practice is a part of Islamic law. The personal law is an integral part of Islam and the two cannot be seen in isolation.”
He has said that he will appeal against this decision.
At this point, there is another plea, of Shayara Bano’s, pending discussion and judgment at the Supreme Court. Bano has challenged the constitutional validity of three rules relating to a Muslim nikah: Triple talaq or talaq-ul-biddat; nikah halala — a practice by which a divorced couple can remarry each other only if the wife marries a second time, consummates this marriage, and then the second marriage is dissolved through death or divorce; and a Muslim man’s right to have four wives (polygamy). Shayara Bano was subjected to an instantaneous triple talaq by her husband after 15 years of marriage, last October. Her plea moves the apex court to declare these repulsive practices as illegal as they clash with fundamental rights under Article 14 (equality before the law), 15 (prohibition of discrimination), 21 (right to life) and 25 (freedom of religion).
The Shayara Bano case will change the way religious personal law interacts with the Constitution, and in all likelihood, will reform Muslim Personal Law in India as well. Nevertheless, this Allahabad High Court judgement paves the road to gender justice and the dismantling of patriarchal tenets by Muslim clerics.
First Published On : Dec 8, 2016 19:40 IST
On 25 November, 2016 — at the beginning of the annual campaign ‘16 Days of Activism Against Gender-Based Violence — the government made a declaration that injectable contraceptives would be rolled out in phases, available to the public for free at medical colleges and district hospitals, under the National Family Planning Programme.
The new drug called Depot Medroxyprogesterone Acetate (DPMA), administered in the form of an injection, is known to thicken the mucous in a woman’s cervix which stops sperm from reaching the egg, thereby preventing pregnancy. A cheaper alternative to other means of contraception such as intrauterine devices, sterilisation and pills, the DPMA users will, however, be susceptible to a plethora of side-effects such as osteoporosis, irregularity in the menstrual cycle, nausea, headaches. The decision to approve and include DPMA as a contraceptive choice is not recent. Last year, in August, the Ministry of Health and Family Welfare, under the recommendation of the Drug Technical Advisory Board of the Drug Controller General of India, decided to include DPMA — as a contraceptive choice — in its family planning programme.
This decision of the government has prompted a huge debate on the gendered approach to contraception, and India women’s sexual and reproductive health rights. Activists have pointed out the blatant gender bias in the India’s family planning programme — how women are expected to make informed choices about contraceptives and sterilisations, while in fact male sterilisation is an easier and less invasive procedure.
In September 2015, the Supreme Court directed the Centre to end mass sterilisation camps, stating that the poor and vulnerable were becoming reduced to mere statistics, and were victim to the government’s campaigns towards population control, which was driven by unrealistic and informal targets and incentives. The matter came up on a public interest litigation (PIL) filed by public health rights activist, Devika Biswas. The Court stated that the government had violated “reproductive freedoms of the most vulnerable groups of society whose economic and social conditions make them easy targets to coercion”.
Mass sterilisation camps are seen as the easiest way to introduce and administer birth control to economically marginalised women in regions where there is a dearth of health facilities. Often a doctor sets up camp and operates on women who are mobilised by health workers. There is little free will in this setting: many women want small families, and several come in for compensation. These women, often illiterate, have little or no agency to make peremptory requests of this system. These camps are in every way a blatant violation of fundamental rights and oppresses the vulnerable.
The Bench, led by Justice Madan B Lokur, stated, “Policies of the government must not mirror the systemic discrimination prevalent in society… it is imperative for both the Union and the State Governments to implement schemes announced by the Union in a manner that respects the fundamental rights of the beneficiaries of the scheme.” Besides this, it was also suggested to the Centre that it finalises and adopts a rights-based, gender-sensitive National Health Policy.
The announcement that the government would roll out DPMA is no way gender-sensitive and places the onus of birth control choices on women. It also absolves men of the responsibility of adopting safe sex measures. India’s family planning programme is the one of the oldest in the world — it was formulated in 1951, and has continued, over the years, without ever being cross-cut by gender mainstreaming.
In 1994, findings from the International Conference on Population and Development stated that birth control and family planning would have a community-based approach. The findings stated that the stabilisation of population was not only dependent on making an array of reproductive health services available, accessible and affordable, but also identified key issues such as accessible primary and secondary education for young girls and women, availability of basic amenities such as safe drinking water and sanitation, and empowering women to access education and employment, and recognise the violation of their rights.
Rolling out the DPMA without the provision for other integrated services that ultimately lead to a generation of empowered women is what is missing from the policy of the government. Without these provisions, it would condone more gender-based violence — physical, sexual and emotional — on vulnerable women. What we need is a rights-based approach to family planning where women decide what is good for their reproductive and sexual health.
First Published On : Dec 2, 2016 14:10 IST
“You realise that the disease eats away at your very being. I’ve seen many girls come into Budhwarpet completely healthy, and then slowly, become sicker. Before HIV, I thought being positive was a great thing,” says Ranjana Devi.
Devi is not HIV positive, but she oversees the workings of a community organisation in Budhwarpet in Pune that administers health and social welfare services for female sex workers — a group that is immensely vulnerable given the nature of their work.
I meet Devi and many others like her in October 2015 during a capacity building workshop for leaders from various community organisations. And thus, began my annus mirabilis of working with over 1,20,000 key population individuals, through 84 community organisations, vulnerable to HIV and AIDS, consisting of female sex workers, gay men and transgenders.
Sarala Tai, a board member of another community organisation, is carrying an eight-year-old “positive” girl. This girl’s mother was a street-based sex worker in Kolhapur, who died due to the lack of access to antiretroviral therapy (ART). In between the workshop, Sarala Tai tells me: “Aisa hi hai na, Madam. Yeh auratein chali jati hain aur bachha mujhe chhor jatin hain. Kya karungi main iska? Kaam bhi nahi sikha sakti (These women die and leave their children to me. What will I do with her? I cannot even make her learn the trade).”
Months later, in Rajamundry in Andhra Pradesh, I sense no despair in Nupur, a helpdesk facilitator. “HIV paas laya hum sab ko. CO (community organisation) kaise hota phir?” (HIV has brought us together. How else would our CO have existed?).
Harping on a similar note, in February 2016, Malavika, the President of the Idayam Thirunangaigal Munettra Sangam (ITMS), Namakkal — a community organisation for transgenders and gay men tells me: “(…) programme ne pehchaan di hai, madam (the HIV/AIDS programme bestowed us with identity).”
Stigma and discrimination is an everyday reality for the vulnerable
What I know of HIV and AIDS is through occasional field visits, pivot tables and legal declarations. With a background in gender-based violence in conflict areas, my lens is generally myopic — I often look at violent incidents against community members isolated from the looming lentivirus itself. But this is fast changing. Every day, stories of unbearable stigma and discrimination is slowly opening my eyes.
Obula, president of a female sex worker community organisation in Kadiri, Andhra Pradesh, recounted an incident of child sexual abuse in her jurisdiction from two years ago. The child was raped by influential people and left to die, she said. No stakeholders — neither the police nor lawyers from the Legal Aid Clinic — were ready to help because her mother, a sex-worker with an HIV positive status, would never stand a chance in front of a politician’s son.
An HIV positive sex worker in Sholapur, Shahnaz’s life’s earnings amounting to over Rs 3 lakhs were taken away by her gharwali — the brothel madam — because she was a victim of the disease. The gharwali emotionally and physically abused her in the course of the recovery of the money. The community organisation’s members stood by her side throughout the process of reporting the crime and battled the stigma and discrimination. And in the end, she received her money back.
“People who are affected by HIV are all living with an inferiority complex,” says Surbhi, who is gender-fluid and HIV positive. “They don’t say it openly, but I have said it. As far as I am concerned, I don’t have anything more in life. I have to be open. Basically, I’m an open type of person. Everybody knows, that I talk openly. So, I will talk about everything and put up with everything. If anyone beats me, I will take it, if someone scolds me, I will accept it. But everyone will not be like that. People who live in society, live under the blanket of prestige. I’m not in that blanket, so I don’t take it as something big,” she adds.
Community Organisations Born out of HIV Programmes
“The disease has claimed lives but it has also given us each other. This condition brings friends. I plan to write poetry on this and share with you,” says Vijji from Thiruvallur. Vijji is gender-fluid. She has lost a few friends to the virus, and finds solace in art and poetry.
A constant victim of ridicule and discrimination, Vijji was always different and understood the trauma of the HIV-positive population. “Community organisations help overcome the trauma and look ahead towards the future. Ironically, community organisations would not exist if HIV did not. It is odd, isn’t it?” she says.
Ushodaya Mahila Sangam (UMS) is a community organisation for female sex workers in Telangana. A total of 13 People Living with HIV (PLHIVs) are a part of UMS, and the team at UMS wanted to ensure a sustained arrangement of nutrition for them. They reached out to the Mandal Revenue Officer who in turn helped connect them with the Ration Dealers Association. The Ration Dealer Association and the team had a meeting where UMS explained the concept of vulnerability reduction to the president of the association and discussed how he could help them do more for these 13 most vulnerable. Since then, UMS has been receiving rice and wheat for its PLHIV members from the members of the Ration Dealers Association and an unflinching support from its president on all occasions.
Then there’s Sree Shakti Sangam (SSS) in Tirupati, which moved mountains for an HIV positive couple who fell in love and married in 2011. The SSS team reached out to the couple when the man’s CD4 count decreased to 22 and he needed to go for the second line treatment. Due to his deteriorated health condition, he was unable to work for over two months and needed urgent medical care. The team took proactive steps to raise money to ensure insurance to meet costs and ensured that their child was tested for HIV. At this point, the SSS team also explained to the couple about the benefits of insuring in PMJJBY and PMSBY schemes. They discovered that while he has a bank account, he does not have any money deposited in it. They decided to gather money from the community and got him insured him under the schemes of PMJJBY and PMSBY. Currently, the family is living happily with proper care and treatment and is confident about giving a bright future to their daughter who is not HIV positive
Peer Networks Serve as the Backbone of Community Support
The community is at the centre of the HIV response and intervention. For this, at the grassroots, a unique camaraderie exists within community members, which is capitalised on the ground to seamlessly connect members with services. Whether it is reporting and redressal of a violent incident or opening a bank account, or using government welfare services, the first point of contact is always another community member — an individual who has seen it all, and wants to reach out to others like her.
Since 2004, with the commencement of HIV/AIDS programmes, a cadre of women leaders have emerged as well. The objective of these programmes was to reduce the risk and vulnerability from HIV/AIDS infections, but in the process, it gave rise to a collective of sex workers who began questioning discriminatory legal and political frameworks. Since 2014, 2,130 women have assumed the role of women’s rights defenders within 71 community organisations in 47 districts spread across Maharashtra, Telangana, Andhra Pradesh, Tamil Nadu and Karnataka. These women are the basic structure of the community organisations and the primary advocates of human rights in the districts where they work. They are also usually the first responders to any instance of gender-based violence in their jurisdiction.
Sudha, a sex-worker who is HIV positive, was shunned by her in-laws. Living in Shahada Town with her son and daughter in law, she gave up sex work recently because of immense support from her peers at the community organisation. They regularly counselled her, provided her with nutrition and also supported her with financial planning. After struggling for years as a sex-worker and depending on others for financial resources, today, Sudha is no longer financially dependent. She has her own Kirana store.
Acceptance of diverse identities
In my opinion, what the HIV programme did was bring much-needed acceptance to a plethora of identities and sexual orientations and also offered space for movements and advocacy. For Malavika, a transgender, the programme gave her an identity. Her family disowned her, but the community and the community organisation embraced her with open arms, as did many stakeholders. She has advocated for the Transgender Bill, like many others in her community, and believes that this would not have been encouraged without the HIV programme in place.
Nayan who is gay, and secretly a part of a Jamat system in Theni, could come out to his parents when they were discussing HIV treatment. During the course of his life, Nayan has studied hotel management in the UK, where homosexuality is no longer looked down upon. He came back to India only when he realised that conditions for LGBTQI were becoming better. He participates in queer prides across India and hopes that one day, in his future, homosexuality and same-sex marriage in India will be legal.
I’ve been a part of the HIV programme for a little more than a year, and for a year, I’ve seen my life change little by little every day. In between field visits, the wait for HIV/AIDS Bill to get parliamentary approval and the faces of countless HIV-vulnerable community members, often my heart sinks: the United Nations and other international organisations, time and again, talk about eradicating the disease by 2030, but financial resources in the sector continue to dwindle. But in the middle of field visits, sometimes unnamed faces come to me and smile, and I retrieve my inspiration to work for them, with them.
First Published On : Dec 1, 2016 14:29 IST
At Koovagam, in the Villupuram district of Tamil Nadu, in April 2016, Jaya, a young transwoman reminisces about Dravida Munnetra Kazhagam (DMK) member, Tiruchi Siva’s attempt to move a private member’s bill — the Rights of Transgender Persons Bill, 2014 — was successful as the Rajya Sabha unanimously passed it by voice vote. His was the first private member Bill to be passed in 45 years. Jaya calls it the Tiruchi Siva Bill, and notes that while she came out to her parents and friends in 2005 when she was 14, it took another ten years for her community to come out. Data from the Avahan III programme (Swasti Health Resource Centre) indicates that, on an average, individuals identify themselves as transgenders at the age of 14 years while being able to come out to their circle only at the average age of 18 years.
In August 2016, the Central government introduced the Transgender Persons (Protection of Rights) Bill, 2016 in Lok Sabha. However, this was a much more diluted version of the 2014 bill. If passed, it would reverse all the gains for dignity and equal rights that the community has collectively championed for in the past several decades.
The bill imperils several of the rights guaranteed by the Supreme Court’s verdict in 2014 in the National Legal Services Authority (NALSA) vs Union of India case. In the NALSA judgment, the bench, consisting of justices KS Radhakrishnan and AK Sikri, broke down the heteronormative, binary gender constructs of ‘man’ and ‘woman’ that is deeply ingrained in Indian law, and affirmed that the constitutional rights and freedoms of the transgender community are absolute. The path-breaking verdict recognised a spectrum of different gender identities, as well as provided very sound rationale for upholding the rights of the community. It stated that “[…]the gender to which a person belongs is to be determined by the person concerned“, thus, recognising the right to personal identity, autonomy, and self-determination under Article 21 (the right to life) of the Indian Constitution. Irrespective of medical, legal or surgical intervention, the court also secured the rights of gender expression by every transgender person, under Article 19 (1) (a) — the freedom of speech and expression. Lastly, the court stated that all transgender persons shall have the right to equality and equal protection under Articles 14, 15 and 16 by prohibiting discrimination on the ground of gender identity.
By giving equal legal status to transgender persons established on fundamental legal principles of international human rights, the NALSA judgment secured for the third gender to enjoy “full moral citizenship” and the right to dignity, while at the same time, opening the doors for the legislature to codify these substantial legal principles into law. The Tiruchi Siva Bill of 2014 did this immensely well. It proposed two percent horizontal reservation for transgenders in education and employment and sought affirmative actions in the present system due to their historical struggle with violation of rights and social entitlements. A survey conducted by Swasti Health Resource Centre for Avahan III programme shows that on an average 27 percent of the transgenders have reported facing at least one form of violence in six months.
The bill also suggested special statutory commissions on the lines of an OBC, SC (Scheduled Caste) or women commissions for a more comprehensive protection of the community’s interests. Along with this, the bill upheld the requirement of legal aid, medical help and special fast-track courts for them. None of these provisions have a found a way in the Transgender Bill of 2016.
Most importantly, however, is the issue of self-identification of transgender persons. The Tiruchi Siva Bill was based on the NALSA judgment that upheld the right of any person to identify as female, male or a third gender irrespective of medical intervention, including gender change surgery. The 2016 bill, however, conflates gender and biological sex, thereby, blurring the distinct difference between a social construct and an inherent anatomical characteristic, and is in contravention to the guiding definition of transgender in the NALSA verdict – “Transgender [TG] is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. TG may also take in persons who do not identify with their sex assigned at birth, which include hijras/eunuchs who, in this writ petition, describe themselves as ‘third gender’, and they do not identify as either male or female […] Resultantly, the term ‘transgender’, in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female.”
The definition in the 2016 Bill is also based on a binary and heteronormative exposition of gender. Section 4 of the Bill reads – “Neither wholly female nor wholly male; or a combination of female or male; or neither female nor male; and whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes transmen and transwomen, persons with [themselves] inter-sex variations and gender-queers.” This definition is limiting and exclusionary – again, a blatant contravention of the NALSA judgment.
In addition to this, while the 2016 Bill provides for the right to perceived gender identity, it also makes it mandatory for every such transgender person to apply to a District Screening Committee, comprising the Chief Medical Officer (CMO), the District Social Welfare Officer, a psychologist or psychiatrist, a representative of the transgender community and an officer of the relevant government. This Committee would conduct an inquiry and ‘certify’ transgender identities for applicants. This is a gross violation of human rights and constitutional principles that a supra-constitutional body would determine the identity of transgender people. Involving a CMO for screening also means that the members of the third gender would be subject to arbitrary medical examinations and allied humiliation and that this would be sanctioned by the state.
The bill seeks to bring under its purview illegal acts of trafficking of gender nonconforming children and begging. However, it does not do so on sound logic. It operates in a void when proposing these clauses. Section 19 states that “Whoever,— (a) compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government […] shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” The bill attempts to dismantle the age-old tradition of begging that hijras engage in for livelihood, by criminalising the person who coerces young transgender persons to take up begging. But it does so without determining other feasible livelihood options or reservations for transgenders. Today only 25 percent transgenders have found formal employment in mainstream society, 32 percent meet their survival needs through begging and an astonishing 67 percent through sex work. At least 20 percent are involved in both.
It must be understood that begging is an activity that has resulted from structural inequalities, due to a disbalance of education and employment opportunities. This may be used by the agencies of the State, like law enforcement and the police to criminalise transgender people, and subject them to further violence and stigma. This is a dangerous proposition as transgenders are often driven away from home, and find refuge in fictional families or Jamats – having a spurious legal provision like this can take away entire support systems of gender nonconforming youths who have nowhere to go. A whopping 74 percent of the transgender persons have had to leave home and their birth families because of being transgender and having faced violence and abuse, often leading to having little or no contact with them nor receiving any kind of support — financial nor emotional.
Section 13 states — “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such person […] (3) Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre.” This provision completely takes away the right of fictional families of transgender youth, many of whom run away from home or are driven out when they come out to their immediate families; and subjects gender nonconforming youth to the arbitrariness of courts and judges. It also coerces upon the youth the option of a rehabilitation centre by way of legal procedure, without explaining the need for such a provision in the first place.
A case study — from Social Action and Rehabilitation Association (SARA), Theni (Tamil Nadu), a community organisation for and managed by transwomen — where a 14-year-old gender nonconforming child ran away from home and came to the house of a transgender member to seek refuge. His parents informed the police, who in turn beat up all the members in the house and took the child away to his parents. When the child was produced before the district magistrate, he upheld the best interests of the child doctrine and stated that he may reside with whoever he chooses. The child chose the transgender gharana, and now lives with them. This was an unusual case from the field, where the judiciary ruled in favour of the transgenders and defended them from police and structural abuse. Another case from a community organisation called Salem Thirunangaigal Nala Sangam (STNS) in Salem (Tamil Nadu) faced charges of kidnapping when a child came to them for psychological support, and his parents found out. Members of STNS have also faced widespread police abuse since this incident occurred in December 2015.
Lastly, it does not provide an adequate definition of discrimination towards transgenders, which is necessary when public spaces — jobs, education, and the aspect of having families — is being opened out for them. It also does not align other laws that are based on binary gender identities to the transgender community — the Protection of Women from Domestic Violence (PWDVA), 2005, Sexual Harassment (Prevention, Prohibition and Redressal) at Workplace, 2013, the clauses on rape and sexual assault in the Indian Penal Code, 1860, the relaxing of gender barriers in laws that determine marriage — none of these have been brought at par with the NALSA judgment that expounds these rights under the right to life under the Constitution. At least 12 percent of TGs have reported sexual assault or facing violence due to their gender.
Most importantly, the bill of 2016 does not provide specific provisions for transgender health care — the Tiruchi Siva Bill mentioned free SRS surgery and allied medical treatment for transgenders. Findings have reflected that while on an average 79 percent transgenders have undergone SRS of which only 23 percent were able to undergo it in a formal medical facility, while the rest underwent the informal process called Nirvaan which is both unhygienic and dangerous. Their hurdles varied across availability of services, its affordability, and accessibility to the individuals. Societal stigma and dynamics within the community also played a major role.
For transgender persons like Jaya, who are trapped between the aspect of acceptance, justice and politics, this tug of war between the two bills marks another struggle — perhaps a longer and more grueling one over legalese and legality. One can only hope that the community’s interests are understood and the principles of human rights are respected.
All data sourced from Avahan III programme [Swasti Health Resource Centre]. (2016, June). Bangalore, Karnataka.
The Supreme Court, on 12 October, 2016, ruled that a sex worker cannot file a case alleging rape if her customers refused to pay her. A bench of judges, consisting of Pinaki Chandra Ghose and Amitava Roy, stated that while evidence submitted by a women alleging sexual assault should be given significance, it cannot be regarded as the “gospel truth”.
The judgment of the highest court in India acquitted three people of rape charges in a case that is close to 20 years old. The three accused had moved the apex court in an appeal, after the Karnataka High Court had convicted them of raping the victim, who used to work as a maid; the victim’s roommate had revealed that she works as a sex-worker at night. The victim had charged the accused of sexual assault and rape in a garage in Bengaluru after an alleged kidnapping. However, the accused were able to challenge this conviction at the Supreme Court, that observed, quite shockingly, that the woman’s “conduct during the alleged ordeal is unlike a victim of rape and betrays somewhat submissive and consensual disposition”.
“The evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always, without exception, be taken as gospel truth,” the Bench declared. The ruling is appalling to say the least, especially when it is founded on the good woman/bad woman dichotomy, and finds no footing on legal reasoning.
The representation and voice of sex workers is practically absent within the Indian rape law paradigm. In 2013, when the Justice JS Verma Committee came up with a set of recommendations for the protection of women and girls from gender-based violence, the report addressed a plethora of issues, including issues of police reform, sexual violence against women and the LGBTQI community. The report briefly touched upon the horrors of prostitution, but it did not advocate the rights of sex-workers from violence, beyond the definition of trafficking within the Immoral Trafficking Prevention Act, 1956. The Committee, emboldened by the horrifying Delhi rape case of 2012, brought up — only to be ignored — the subject of marital rape: it stated that the Indian Penal Code must be amended to remove the exception of marital rape. In doing this, the Committee tried to marry the public and private spaces — stating, and rightly so, that rape and sexual assault are not mere crimes of passion, but an expression of power. Moreover, no relation, including marriage, supplements an irrevocable consent to sexual activity. The Committee’s recommendations, however, remained mute on the issue of consent when it comes to sex workers, thus, leaving no legal recourse for protection against sexual violence from various perpetrators.
Sex workers remain in the twilight area of legal policies and legislation in India, wherein the silence of the law on the identities of sex workers has resulted in more violence in both public spaces, by law enforcement officials, and private spaces, by clients, pimps and partners. In addition to this, societal standards that forcefully fit women into a binary system, in which women are either idolised or demonised pervade through all structures and institutions; even the judiciary writes them off as “women of loose morals”. Unfortunately, this thinking also leaves sex workers no representation over a criminal law against rape that should apply to them, in spite of what they do for a living.
In 1972, in Tukaram v. State of Maharashtra (1979) or the Mathura rape case, Mathura, a 16-year-old Tribal girl, had been raped in a police station. The Supreme Court, however, stated that that no rape had taken place since Mathura’s body bore no outward signs of rape; therefore, there was no resistance to the act, and it was a “peaceful affair”. The ruling, however, sparked a wildfire of protests by women’s rights advocates, which led to the criminal law amendment in 1983 that dealt with rape. The amendment of 1983 also brought about a change in the Indian Evidence Act, 1872: Section 114-A was added onto the Evidence Act that dealt with prosecution of rape cases under clauses (a), (b), (c), (d), (e) or (g) of S. 376(2) of the Indian Penal Code, where sexual intercourse by the accused is proved, and the question before the Court is whether such intercourse was with or without the woman’s consent. In such cases, if the woman, in her evidence, states before the Court that she did not consent, the Court must presume that she did not so consent.
The ruling is appalling to say the least, especially when it is founded on the good woman/bad woman dichotomy, and finds no footing on legal reasoning
Ironically, in the present case at the Supreme Court on appeal from three accused from Bengaluru, this aforementioned “presumption as to absence of consent in certain prosecutions of rape” is neither considered, nor debated upon. The Bench seems to have removed the issue of presumption of consent from this gang rape because the women was of “questionable character”.
In Budhadev Karmaskar v. State of West Bengal (2011), the apex court, in its division bench, headed by Justice Katju, stated that sex workers have a right to live with dignity under Article 21 of the Constitution of India “since they are also human beings and their problems also needed to be addressed”. However, despite this commendable judgment, we often see the courts unable to break out of the patriarchal mould when giving judgments that involve sex workers. Often, even when the judgment is sound, the language is crass and reeks of prejudice; for instance, in the State of Maharashtra v. Madhukar N Mardikar (1990), stated that, “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”
When an institution itself is dictated by morality instead of sound legal reasoning, it should not shock and horrify when the Bench, in October, 2016, declares — “Her vengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised.”
After years of deliberating on the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (HIV/AIDS) (Prevention and Control) Bill, 2014, the Union Cabinet has finally approved it, with amendments, on Wednesday in a meeting that was chaired by Prime Minister, Narendra Modi. The Bill is a long-awaited legislation that seeks to end societal stigma and discrimination of people living with HIV (PLHIVs) and ensure their right to privacy.
The Bill takes a human-rights approach to public health, and makes antiretroviral treatment a legal right of HIV/AIDS patients. This would mean that it is now obligatory for the Central and State governments to provide for anti-retroviral therapy (ART) and arrange for the management of risk reduction of vulnerable populations. The legislation prohibits arbitrary and discriminatory acts by the state against PLHIVs and their families. The HIV/AIDS Bill, therefore, has the foundations of civil liberties at its centre, providing for positive and negative obligations for the State towards approximately 21 lakh PLHIVs in India.
Populations who are most vulnerable to HIV/AIDS are female sex workers (FSWs), men who have sex with men (MSMs), transgenders and intravenous drug-users. The Bill seeks to protect these high-risk groups from discrimination, both through administration of treatment for their infections as well as improving their access to welfare schemes and services. Any discrimination or unfair treatment against PLHIVs and their families in their employment, education, healthcare and provision of insurance is prohibited; they also cannot be banned from housing or renting property and from standing for public or private office. Moreover, by bringing in legal accountability in the treatment and care of the PLHIVs, the Bill also mandates for a formal mechanism to probe on complaints of violations of the Act. Most importantly, it seeks to safeguard the privacy of the PLHIVs by stating that no HIV test, medical treatment, or research will be conducted on a person without his/her informed consent.
The Bill also makes it mandatory for institutions and establishments keeping records of PLHIVs to adopt data protection measures. By providing for a progressionist approach that safeguards the human rights of the affected, while simultaneously providing for risk and vulnerability reduction, that has its roots in social and economic justice, the Bill is an example of sound affirmative action.
However, will the adoption of this Bill be action enough for a bias-free environment for the people living with HIV and their families? While the Bill mandates for prevention of HIV/AIDS, will it be able to protect those who are most vulnerable to infections, namely the high-risk groups (intravenous drug-users, FSWs, MSMs, and transgendered individuals)? Moreover, the Bill does not elucidate on the legal dissonance between its provisions of non-discrimination and other acts and case-law that discriminate against sex-workers, homosexuals and transgenders.
For example, the Immoral Trafficking Prevention Act, 1956, that, despite its silence on the legality of sex-workers, is used by law enforcement to criminalize, punish and prosecute female sex workers. Moreover, the LGBTQI population also faces egregious human rights violations by the State and law enforcement; the Supreme Court judgment in Suresh Kumar Koushal v. Naz Foundation sought to reinstate the archaic Section 377 of the IPC, thereby validating the criminalizing treatment of the State towards the LGBTQI community. By not safeguarding the rights of sex-workers, MSMs and transgenders, the State continues to push them into further victimhood. How does the HIV/AIDS Bill, then, epitomise the clauses on anti-discrimination of the PLHIVs, when the most vulnerable continue to live, in the fringes of society, their identities, governed by morality, but still unprotected by any legislation?
The HIV/AIDSs is, by all means, a cause for revelry within the communities as well as for advocates for the vulnerable. However, in my opinion, the HIV/AIDS Bill cannot be isolated from all the other issues currently tabled in the Parliament and the Supreme Court – the passing of an Anti-Trafficking Bill that does not incriminate all sex-workers; the ratifying of the Transgender Persons Bill, 2016 that provides for a comprehensive understanding of the transgender identity; the five-judge Constitution Bench that will decide the fate of Section 377, and therefore, the fates of the MSM, gays and transgender communities.
It cannot be denied that HIV/AIDS patients have had an arduous journey, legally. In December 2010, the Supreme Court struck down all reservations of the Central government to repudiate its obligation towards PLHIVs by stating that receiving second-line ART treatment to all HIV/AIDS patients was subsumed under Article 21 of the Constitution – the right to life. The Cabinet’s nod to the Bill is, therefore, commendable. The Union Minister for Health and Family Welfare, JP Nadda has stated – “The Bill seeks to prevent stigma and discrimination against people living with HIV. These amendments will allow families that have faced discrimination to go to court against institutions or persons being unfair”; but how will the Bill have this power when many of the vulnerable don’t have the luxury to express themselves or define their identities and are continued victims of violence and stigma in both public and private spaces?
The author is a human rights lawyer and researcher based in Bengaluru.