Human Rights in Changing Times [1 ed.] 9781443861571, 9781443852265

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Human Rights in Changing Times

Human Rights in Changing Times

Edited by

Gyan P. Agarwal, Sunil K. Choudhary and Reenu Gupta

Human Rights in Changing Times, Edited by Gyan P. Agarwal, Sunil K. Choudhary and Reenu Gupta This book first published 2013 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2013 by Gyan P. Agarwal, Sunil K. Choudhary, Reenu Gupta and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-5226-0, ISBN (13): 978-1-4438-5226-5

CONTENTS

Foreword .................................................................................................. viii Yogesh Atal Introduction ................................................................................................ xi Gyan P. Agarwal, Sunil K. Choudhary and Reenu Gupta Acknowledgements ................................................................................... xv Keynote Address ...................................................................................... xvi Introducing Human Rights in the Twenty First Century Yogesh Atal Part I: Politico-Legal Analysis of Human Rights ................................... 1 Chapter One................................................................................................. 3 Impact of the World Trade Organization on Intellectual Property Rights in Developing Countries: An Analysis in a Human Rights Perspective Fatemeh Eslami Chapter Two .............................................................................................. 24 Armed Force Special Powers vis-à-vis Human Rights: The Indian Case Basant Singh and Sandeep Kaur Chapter Three ............................................................................................ 44 Human Trafficking: Popular Models of Interception and Intervention Sonal Pandey, Hare Ram Tewari and Pradip Kumar Bhowmick Chapter Four .............................................................................................. 63 Terrorism: A Case of Violation of Human Rights Ved Pal Singh Deswal

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Part II: Socio-Economic Orientation of Human Rights ....................... 79 Chapter Five .............................................................................................. 81 Human Right to Safe Drinking Water Astha Dewan Chapter Six ................................................................................................ 95 The Street Children and their Human Rights: A Study of India Archana Dassi and Sanghamitra Dhar Chapter Seven.......................................................................................... 109 Multi-ethnic Societies and Minority Rights Amarjit S. Narang Chapter Eight........................................................................................... 124 “Reproductive Tourism” and the Women’s Movement in India: A Human Rights Perspective Dipti Tripathi Part III: Ecological and Gender Bases of Human Rights .................. 141 Chapter Nine............................................................................................ 143 Environmental Protection, Industrial Relocation and Human Rights: A Study of Workers’ Rights in Delhi Prakash Chand Chapter Ten ............................................................................................. 161 Right to Development in the Wake of Climate Change: Reforms Needed in International Cooperation Neha Gupta and Sumbul Tahir Chapter Eleven ........................................................................................ 178 Life, Environment and Sustainable Development: An Inalienable Trilogy Pravin Singh Chapter Twelve ....................................................................................... 198 The Domestic Violence Act 2005: Emancipation from Culture of Silence and Subjugation; A Study of Women in Kerala J. Anuja and Sara Neena T. T.

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Part IV: Human Rights from A Transnational Perspective .............. 225 Chapter Thirteen ...................................................................................... 227 Advocating the Rights of People with Disabilities in China: A Community-Based Rehabilitation Approach Pui-yan Flora Lau Chapter Fourteen ..................................................................................... 249 State-Citizenship Debates and Human Rights Issues: A Study of Israel Sunil K. Choudhary Chapter Fifteen ........................................................................................ 269 Human Rights in South Africa: Nelson Mandela’s Regime and Afterwards Ramesh Kumar Chapter Sixteen ....................................................................................... 287 Is the Court of Justice of the European Union becoming a Guardian of Foreigners’ Rights in Europe? Alix Loubeyre Contributors’ Profiles .............................................................................. 312 Editors’ Profiles ....................................................................................... 319

FOREWORD YOGESH ATAL FORMERLY UNESCO PRINCIPAL DIRECTOR OF SOCIAL AND HUMAN SCIENCES

I laud the effort of the Shyam Lal College [Evening] of Delhi University in taking the initiative to organize an international conference, with participation also from some scholars from abroad to highlight the significance of human rights in a democratic polity. I regard this initiative on the part of the Shyam Lal College (Evening) as a contribution to the international community to promote human rights. There is a personal reason for my enthusiasm for this effort. While at UNESCO, it was my task to promote, among others, teaching and research relative to human rights in tertiary education in the vast Asia-Pacific region; I see the effort as a response to UNESCO’s initiative in this regard, and hence of personal satisfaction to me. In particular, I laud the contribution of Dr Sunil K. Choudhary and his team in organizing so successfully the conference and in carefully editing this volume. I was happy when the College invited me to deliver the Keynote Address at the conference, and that, too, in the presence of the Chairman of the Indian National Commission for Human Rights, retired Chief Justice of the Supreme Court, Shri K. G. Balakrishnan. The Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly in December 1948. Although the idea of human rights is as old as humanity and is endorsed in their own ways by the various religions, it was the barbarism of World War II that prompted the world community to reassert its significance and make it the central task of the newly found United Nations to promote them in the member-states to ensure that the world shall never again experience the terrible consequences of human massacre. The UDHR urges member-nations to promote a number of human, civil,

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economic, and social rights, asserting that these rights are part of the “foundation of freedom, justice, and peace in the world”. The Preamble to the Universal Declaration of Human Rights says that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world”. The Universal Declaration represents the first global expression of rights to which all human beings are inherently entitled. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966, the General Assembly adopted two detailed Covenants, which complete the International Bill of Human Rights; and in 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law. The post-war era saw human rights movements for special interest groups such as feminism and civil rights. Even the members of the former Soviet Bloc joined the movement. The movement then became part of social activism and political rhetoric in many nations. In fact, in many countries where democracy was still taking its roots, the governing elites regarded human rights activists as anti-establishment. Such countries engaged in double-talk: in the international fora, they eulogized and espoused human rights; back home, they penalized human rights activists. Of late, human rights are at the centre in the agenda of several NGOs, and the official agencies engaged in the task of maintaining law and order are seen as violators of human rights. One must, however, sympathize with the governmental agencies which had to take tougher actions against those who violate human rights. Sadly enough, NGOs become active when a culprit is under police custody to protect his human right; the fact that such a person had engaged in a criminal activity that violated the victim’s human rights is conveniently ignored. This remains a constant dilemma.

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It is indeed heartening that the human rights movement has grown beyond its original anti-totalitarianism to include causes involving humanitarianism and social and economic development in the developing world. A proper orientation to human rights is still lacking in many sections of the society in several countries; and India is no exception. In the 21st century, human rights are likely to receive even greater attention. But it is not sufficient to increase awareness of the issue. The research component continues to be very weak. Merely cataloguing the instances of human rights violations is not enough. Nor is it satisfactory to find out the percentage of people in a given sample possessing knowledge about specific human rights. There is a need to dig deeper. The papers reproduced in this compilation will certainly serve the purpose of putting in one place relevant material in all the areas that are affected by violation of human rights. The discussion record of the two-day conference does indicate awareness about many grey areas which warrant systematic and scientific research. I wish and hope that Shyam Lal College (Evening) will encourage its faculty to undertake research and develop specialism in human rights with a proper social science orientation. September 2013

INTRODUCTION GYAN P. AGARWAL SUNIL K. CHOUHDARY REENU GUPTA

The Background The 21st century can be described as the century of human rights as the idea has now become pervasive in the current global political reality. The concept has been in vogue for a long time and perhaps all the modern nation-states have tried to formulate their own institutional rights directly or indirectly related to human rights. Despite such political concern on the issue of human rights there has been a lack of consensus among nations resulting in the resurgence of many controversies surrounding human rights today. Though the concept of human rights is related to global politics, it has acquired only a marginal position in social sciences. The phenomenon of human rights is connected not only with the protection of the individual from the excesses of the state but is also directed towards the creation of societal conditions by the state in which individuals may develop to their fullest extent. However, one finds an interesting paradox in human rights discourse today, viz., while no one actually rejects the principle of defending human rights, these rights are violated virtually everywhere. Notwithstanding the inherent paradox one sees rising concerns of human rights at all levels – national, international and transnational. Despite its historical genesis and long evolutionary process, the concept of human rights has assumed great significance in the 21st century. Shifting trends and generational transformation have added new perspectives and challenges to human rights across the globe.

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It was to examine these multifaceted challenges and changing perspectives that Shyam Lal College (Evening), University of Delhi, India organized a two-day International Conference on Human Rights on February 14–15, 2012 at India International Centre, New Delhi, India. The conference was designed to gauge the opinion of scholars and social scientists, pundits and politicians, public officials and civil functionaries on the issue of human rights.

Theme and Participation The theme of the international conference was: Human Rights in the 21st Century: Global Perspective, National Challenges. The conference attracted participants from seven countries including South Africa, France, Hungary, Hong Kong, Iran, and Tibet and from almost all corners of India. The two-day deliberation of the presentations by 28 selected scholars tried to highlight various new issues of human rights at local, national and transnational levels. The conference was inaugurated by Hon. Justice K. G. Balakrishnan, Chairman, National Human Rights Commission. Justice Balakrishnan highlighted the essence of human rights and regarded this as an essential feature of all democratic countries. He stressed the need for accepting and respecting the rights of others. He also emphasized that “one should know one’s worth and respect the rights of others”. He appreciated the role played by National Human Rights Commission, India in upholding the human rights of downtrodden strata of society and advocated the need of introducing modules on human rights in schools. Dr Ms Krisztina Morvai, Member of the European Parliament, was the Guest of Honour in the conference. Dr Ms Morvai tried to present a paradox of the world community in which one world is focusing on human rights whereas the other world is looking at profits. The Keynote Address was delivered by Professor Yogesh Atal, Former, Principal Director of Social and Human Sciences, UNESCO. Professor Atal focused on two major issues in his address – poverty and corruption – as illustrations of the violation of human rights. He argued that there is a direct connection between corruption and the violation of human rights. He concluded by emphasizing the need to create better awareness about human rights which require much deeper efforts not only by the government but by all stake holders in order to transform these rights into reality.

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The inaugural session was also addressed by Shrimati Nirmala Gupta, Chairperson, Shyam Lal College, Governing Body and Dr Gyan P. Agarwal, Principal of Shyam Lal College (Evening). The address by the college dignitaries presented an overview of the previous seminars and conferences organized by college since 2005 and highlighted the growing importance of human rights both in developed and developing countries. The valedictory address to the conference was given by Dr Kavita Sharma, Director, India International Centre, New Delhi, who brilliantly summed up the crux of the human rights debate from the Western as well as Eastern perspectives.

Transforming the Conference Discourse into Academic Volume The publication of the conference proceedings sought to transform the academic discourse into an academic volume that could be beneficial for all. The initiation of interest in our conference proceedings by Cambridge Scholars Publishing, U.K. and its proposal of publishing the same even before the holding of the conference galvanized the “Team Conference” towards its splendid culmination. After the completion of the conference in February 2012, we took almost a year in seeking revision of the papers of our contributors based on the feed back of the conference and comments of the editorial board. Our efforts have finally produced results and with the kind cooperation and support of most of our contributors, we are now able to reproduce the manuscript within the given time limit. For the purpose of analyzing various aspects and perspectives of human rights in global world, the book is divided into four parts – politico-legal, socio-economic, gender and ecological, and the transnational. The classification of the book into four key parts and clubbing of the papers into each of the parts does not necessarily follow strict parameters as the concept of human rights is cross-national, cross-cultural and crosssectional. Part I of the book analyses politico-legal aspects of human rights. It comprises four leading papers by Fatemeh Eslami, Basant Singh and Sandeep Kaur, Sonal Pandey, Hare Ram Tewari and Pradip Kumar Bhowmick, and Ved Pal Singh Deswal. These papers examine the politico-legal perspectives of human rights. The first paper in the sequence discusses the impact of World Trade Organization on Intellectual Property

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Rights in developing countries from a human rights perspective. Other important contributions in this section highlighted the issues of defence and security, human trafficking and terrorism. While one of the papers in this part throws light on the Armed Forces Special Power's Act vis á vis human rights, the other papers brilliantly cite the growing concern of human trafficking and terrorism as violators of human rights in the contemporary world. Part II of the book is an attempt to coalesce the papers underlining the importance of socio-economic orientation of human rights and their growing relevance to humanity. Written by four young and dynamic social scientists – Astha Dewan, Archana Dassi and Sanghamitra Dhar, Amarjit S. Narang, and Dipti Tripathi – all the papers of this part tend to focus on new emerging issues like safe drinking water and reproductive tourism as well as the plight of the street children and minorities which require special attention from all the stake holders – state, civil society and the citizens. Part III of the book delves into the ecological and gender issues of human rights. It comprises four lead papers by Prakash Chand, Neha Gupta and Sumbul Tahir, Pravin Singh, and J Anuja and Sara Neena T. T. All these papers examine the issues of industrialization and ecological development, environment and development, climate change, and domestic violence and women’s rights. While the first half of this section analyses the issue of industrialization, ecological development and climate change; the other half highlights the balancing of life, environment and development besides underlining the issue of domestic violence in the context of a southern state of India, viz., Kerala. Part IV of the book discusses human rights from a transnational perspective and comprises papers by national and international scholars, viz., Pui-yan Flora Lau, Sunil K. Choudhary, Ramesh Kumar and Alix Loubeyre. All the chapters of this part seek to locate the phenomenon of human rights in three important continents – Asia, Africa and Europe besides focusing on the growing problem of human rights in the context of state-citizenship debates in the politics of West Asian countries, especially Israel.

ACKNOWLEDGEMENTS

We would like to record our sincere thanks to all the guests, delegates, organizers, members of the Team Conference, faculty and staff of Shyam Lal College (Evening), University of Delhi without whose warm association and kind cooperation the event could not have seen the light of its splendid success. We express our warm gratitude to our language editors, especially Christopher Pipe, for taking great pains in editing the entire manuscript with utmost devotion and sincerity. We are equally grateful to Cambridge Scholars Publishing, U.K., particularly its Commissioning Editor, Carol Koulikourdi, and manuscript editor, Amanda Millar, whose consistent support and encouragement always helped us in editing, revising and finally submitting the manuscript within the stipulated time frame. Finally, we would like to thank all our contributors for showing great patience and perseverance in revising and redrafting their papers as desired by the editorial board and language editors from time to time. Gyan P. Agarwal Sunil K. Choudhary Reenu Gupta Shyam Lal College (Evening), University of Delhi, INDIA 2 October 2013

KEYNOTE ADDRESS INTRODUCING HUMAN RIGHTS IN THE TWENTY FIRST CENTURY YOGESH ATAL FORMERLY UNESCO PRINCIPAL DIRECTOR OF SOCIAL AND HUMAN SCIENCES

I thank the organizers for this honour. My participation in this event revives the memories of my association with UNESCO. During my long career with UNESCO, particularly when I served it as its first Regional Adviser for Social and Human Sciences in Asia and the Pacific, one of my responsibilities was to promote teaching and research in the area of human rights. The public image of UNESCO being that of an agency engaged in the task of education, any task assigned to it by the international community was seen as a task in the area of teaching, and that too at the level of primary and secondary education. Quite naturally, UNESCO took up the challenge of teaching of human rights via its Education Sector. The Sector did a commendable job of developing teaching materials, booklets and brochures, and cartoon books, of issuing posters, organising children’s events like exhibitions, and plays and skits to spread the message and enlarge awareness of human rights amongst the school-going population. Human rights received added emphasis after the 1983 Vienna International Conference on Human Rights. It became the responsibility of UNESCO to develop a follow-up programme to implement the resolutions and recommendations of the conference relative to the teaching and research in human rights. The scope of teaching human rights needed an extension to cover education at higher levels of learning. Vienna Declaration’s acknowledgment of the need for research served as an invitation to carry

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out scientific research in institutions of higher learning. The Sector for Social and Human Sciences in UNESCO was given the responsibility for this task, which created a separate Division of Human Rights and Peace. As UNESCO’s Regional Adviser for the vast Asia and the Pacific region, the responsibility fell on me to promote teaching and research in Human Rights in Higher Education. This promotional work, however, remained confined mainly to university departments of Law – particularly International Law – and of Political Science. But in these departments, such teaching was mainly normative, and very little by way of research was done. The celebration of the Human Rights Day on 10th December1 was the most important activity. The celebrations took the form of a seminar or a guest lecture on the importance of human rights. The funding support sought by the university departments related to the translation of various documents – Universal Declaration, Conventions and Covenants, organization of special lectures for the general public, and arranging competitions – essay writing, poetry, or cartoons and paintings relative to human rights. My office did all this, besides bringing out a Newsletter on International Law.2 It was a strange realization that while in the international fora memberstates proudly endorsed human rights and became signatories of the various instruments, back home they paid only lip service to them. It is a reality that most work in the area of human rights was, and is, done by the NGOs. Interestingly enough, such NGOs are seen mostly in negative terms, as those opposed to the government. Of course, there is reason behind such a confrontationist interaction between the two agencies. The NGOs generally target the governments and their law enforcing agencies for the violation of human rights. The reports produced by organizations such as Amity International, or by the United States Government, related to the compilation of cases of human rights violations by state agencies. No doubt, these reports attract media attention, but they also generate political debates and show the governments in poor light. NGOs do serve the purpose of spreading awareness among the reading public but sadly contribute little by way of solid research. Compilation of cases of human rights violations does fall in the category of data collection; but that does not cover the full scope of research on human rights. These reports are also one-sided because they do not tell about human rights violations by agencies and individuals outside the government.

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I always had a feeling of discomfort while treating human rights as a social science specialty. The question is that of orientation – how to approach the subject as a social scientist? What questions to ask? Whom to ask? How to go beyond macro statistics of human rights violations to solid empirical research? I must confess that much of what I read as research material is more in the nature of commentaries and explications, or laudatory of human rights. Under the UNESCO auspices, I did organize an international seminar in Bangkok to discuss the place of human rights in various religious traditions. That was an exercise, I realized while conducting the seminar, to provide a counter argument to the general criticism of human rights as a “Western conceptualization”. The papers on various religions presented at the seminar tried to show that the idea of human rights is universal and is commonly shared by all religions. Again, this exercise was based on the analysis of religious scriptures and did not provide any explanation for the violation of human rights by the religious fanatics and fundamentalists who were promoting Jehad and indulging in bloody communal violence. Social sciences would have to develop a paradigm to handle the issue of human rights if they really wished to go beyond “journalistic” reportage or “political” commentaries. If social scientists as social scientists dealt with human rights in the same manner as NGO leaders, or politicians, or social activists, they might promote the cause of human rights but would not demonstrate the role of social sciences in this area. We need to ask how social sciences can contribute to the promotion of human rights. When we discuss the question of human rights in the beginning of the second decade of the twenty-first century and in a gathering of university teachers and researchers it becomes necessary for us to rethink our role in the area of human rights so that we develop an agenda for research and a protocol for teaching this subject in the arena of the social sciences. Human rights are universally acknowledged and all member-states of the United Nations have endorsed them. It is the task of the governments to protect the rights of its people. When such rights are violated the people seek redress from the government. Thus human rights are seen as a deal between the government and the people. However, it is the government which is generally alleged to violate human rights. That is the reason that agencies such as Amnesty International come out with yearly reports on cases of human rights violations and rank the governments on a scale.

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Interestingly enough, it is not only the dictatorial regimes that figure in the list of violators, although it is these regimes which curb freedom of expression and censor all information about them. Demand for a democratic regime ensuring people’s participation is one significant expression of the assertion of human rights. However, it is to be realized that it is the State that has the responsibility to maintain law and order, and in the exercise of this responsibility it has also to use, or at least to demonstrate, its force. In such actions it is the government that remains at the receiving end of all criticism. What gets highlighted is the violence committed by those who have the onerous task of maintaining law and order. There remains the dilemma as to how to ensure peace and stability when some elements from the general public turn violent and violate human rights of others. When underground armies threaten peace and challenge the stability of the prevailing system what option does the agency in charge of maintaining order have other than using force to combat force? It is always the police or the military that is criticized for violation of human rights and the sympathies are generally extended to the perpetrators of crime. While protests remain one single and effective means to express dissent, it may become a bloody struggle. When a group like Naxalite disturbs the peace of a region and results in killing several innocent people, whose side should human rights protagonists take? This is an issue not easy to resolve, but needs careful investigation. By definition, a human rights activist is a person with commitment with value biases. A researcher of human rights is expected to be value-free to be objective. A social scientist can become an activist, but then he loses the objectivity that is required of a social scientist. It is in this sense that one can argue that every thing that a social scientist says is not social science. Since we are talking in the context of tomorrow, we must acknowledge that our societies are in the throes of change. Information revolution has changed the contours of our communication highways, and improved our awareness profiles. With rising literacy rates and exposure to the wider world more and more people are claiming their rights, taking to the streets, and asserting demands for change. Many have found their voices via the internet. With the use of instant messaging human rights activists are informing, inspiring, and mobilizing supporters to seek their basic rights. The recent events in India’s history relative to protests against corruption are a case in point. Team Anna’s India Against Corruption attained huge success in making corruption a common issue, thanks to the availability of modern means of communication. People expressed their support and views through text messages in large numbers – a strategy that was not

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available to Mahatma Gandhi when he fought against the British Raj. In the context of tomorrow we must stress the point that there will be a larger number of informed and aware people, and that this would strengthen their resolve to exercise their rights and make legitimate demands on the system. The explanation offered today for the state atrocities in terms of an ill-informed populace would not hold viable in the context of tomorrow. We must also accept the point that Social Science work relative to human rights does not stop at mere collection of statistics about the violation of such rights, certainly not only to those cases where criminal cases are tackled by the police. It has to be understood in broader terms. Human rights relate to practically all spheres of social life. In recent years, this movement has focussed on freedom of assembly, death penalty, minority rights, migration, racism, and women’s rights particularly in conflict areas, problems of lesbianism and homosexuality, and even corporate responsibility. Religious intolerance is, likewise, another source of the violation of human rights. The new area of concern relates to bioethics. There are now Universal Declarations relative to Human Genome and Human genetic data. The rising cases of medical negligence and sale and administration of spurious drugs also belong to this territory. About the latter, there is now a need to carry out empirical researches in the area of Medical Sociology and Sociology of Health. In fact, one can prepare a whole list of topics from several areas of socio-sphere where research with a human rights perspective can be carried out. This is a huge challenge for the social sciences in terms of systematic and scientific research to investigate and report on the structural and functional deficiencies that facilitate violation of human rights. As an illustration, I propose to focus on two issues that need to be seen in the perspective of human rights, namely poverty and corruption.

Poverty Persistence of poverty is now regarded as violation of human rights. Since discrimination is declared unacceptable by the by Article 2 of the Universal Declaration of Human Rights, and since the two international Covenants explicitly condemn discrimination based on social origin or property, people living in conditions of extreme poverty are seen as deprived of their human rights.

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While pleading for the elimination of poverty, the human rights activists invoke the fundamental principles of human rights, namely (i) equal dignity of all human beings; and (ii) the principle of equality and nondiscrimination. They also recall that the Universal Declaration of Human Rights begins with the words: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . .” Similarly, Article 1 of the Universal Declaration affirms that “All human beings are born free and equal in dignity and rights”. It is rightly contended that people living in absolute poverty are victims of de facto or de jure discrimination that, in a way, violates the principle of equality. Poverty leads, it is argued, to all kinds of discrimination, including racial discrimination and apartheid. Because of poverty the poor are, in particular, deprived of the following specific rights: 1. The right to a decent standard of living (Article 25 of the Universal Declaration that says: “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family”). 2. The right to housing (Article 11 of the International Covenant on Economic, Social and Cultural Rights). 3. The right to health (Article 25 of the Universal Declaration of Human Rights, and Article 12 of the International Covenant on Economic, Social and Cultural Rights. The latter says: “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”). 4. The right to education (Article 26 of the Universal Declaration and Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights). Guided by this, the world community adopted the famous 1990 Jomtien Declaration on Education for All (EFA). 5. The right to work (Article 23 of the Universal Declaration; and Articles 6 to 9 of the International Covenant on Economic, Social and Cultural Rights). 6. The right to protection of the family (Article 16 of the Universal Declaration says: “the family is the natural and fundamental group unit of society and is entitled to protection by society and the state”.

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It also figures in articles 7 and 10 of the International Covenant on Economic, Social and Cultural Rights). 7. The right to life and the right to physical integrity (Article 3 of the Universal Declaration and Articles 6 and 9 of the International Covenant on Economic, Social and Cultural Rights). 8. The right to justice (Articles 10 and 11 of Universal Declaration, and Articles 14 and 15 of the International Covenant on Economic, Social and Cultural Rights). Apart from other obstacles such as illiteracy, complexity of the procedures, and mistrust of the judicial system, it is the indigent condition that prevents the poor from taking recourse to law. 9. The right to take part in political affairs (Article 21 of the Universal Declaration and Article 25 of the International Covenant on Economic, Social and Cultural Rights refer to this right). 10. The right to participate in social and cultural life (Article 22 of Universal Declaration and Article 15 of the International Covenant on Economic, Social and Cultural Rights). The listing of the rights that are violated in the context of the poor suggests that poverty is a denial not of this or that right but of human rights as a whole. It is not only the economic rights of the poor that are violated when they suffer from absolute poverty, but the entire gamut of civil, political, and cultural rights is violated. Absolute poverty is “an accumulation of mutually reinforcing misfortunes: poor living conditions, insalubrious housing, unemployment, ill health, lack of education, marginalization, etc., a veritable ‘horizontal vicious circle of poverty’”. Approaching poverty as a human rights issue makes it more than a social problem and gets it linked to the question of basic social and economic rights as also civil and political rights. Such an approach would require new instrumentalities to ensure elimination of poverty. It would necessitate not only vigorous efforts on the part of the states but also involvement of the civil society, non-state actors, and multinational corporations. It is now recognized that mere passage of legislation, and government expenditure on the social sector, is not enough to mitigate this scourge. To the extent the non-poor are held responsible for causing poverty, or aggravating it, one may talk of violation of human rights by the non-poor. In this perspective, the poor may appear as victims. Conceptually, it is important to distinguish between various types of poverty. If poverty is caused by denial of human rights its remedy would

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lie in the restoration of such rights. But if poverty prevents one from the exercise of certain human rights then efforts would be needed to obliterate those factors which create such obstacles. Seen this way, providing education to the poor should be differentiated from the fight against poverty. Education is a fundamental right, and the poor children should not be denied access to education, but provision of education may not always lead to the elimination of poverty. There is ample statistical evidence to indicate poverty among the educated; similarly, the poor could be found among those who are in jobs or who are normally healthy. A devastating earthquake, or any other natural calamity, can render many homeless and jobless, and even penniless. For such kind of poor one cannot offer the usual recipes of education or employment. It remains to be seen how the poor can assert their human rights and seek repairs to the social damage to their lives. The attitude of charity among the non-poor cannot help build self-confidence among the poor. They will continue to be parasites and may even see advantage in appearing to be poor and down-trodden. This would go against the philosophy of empowerment. There is merit in the allegation that while the non-poor speak the socially correct language decrying poverty and sympathizing with the poor, they need the poor to maintain their non-poor status. Combating poverty requires fresh thinking away from stereotypical recipes. Charity does not seem to work. With all the post-independence years focussing on the poor, particularly the rural poor, we still talk of this scourge. The success of government efforts cannot be measured in terms of how much money is spent. Everybody talks of MNREGA (Mahatma Gandhi National Rural Employment Guarantee Act) and the government takes pride in reporting several crores of rupees on this programme. Researchers are hired to give certification of success. Recent exposures in the states that are going to polls of the diversion of funds from this scheme as well as from the National Rural Health Mission remind us that mere allocation of funds, and not even reports of their utilization are enough. These schemes have opened new doors for corruption. The money meant for the poor and the sick has not reached where it should have. The result: the poor remain poor, and the sick remain sick.

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Corruption The problem of corruption is also seen as a violation of the principles of equality and non-discrimination. At first sight this may appear far-fetched, but a close examination would suggest that there is a direct connection between corruption and human rights. Note the following examples: 1. When a person obtains privileged treatment by means of a bribe it affects the right to equality in the sense that compared to the people who do not give a bribe, the bribe-givers are given precedence. Non-bribe-givers face delay in getting their work done and thus their right to equality may be hurt. In other words, corrupt practices commonly produce unequal and discriminatory outcomes with regard to human rights. 2. When administration of justice is influenced by acts of omissions that constitute the use of public authority for the private benefit of court personnel, it results in the improper and unfair delivery of judicial decisions. The acts of omission include: bribery, extortion, intimidation, influence peddling and the abuse of court procedures for personal gain. For example, a judge may be paid a bribe to exclude evidence that would otherwise lead to the conviction of a criminal. A court official may be paid a bribe to allocate a case to a sympathetic judge, to lose a case file, or to speed up the hearing of a case. Police can be bribed to tamper with criminal evidence. Prosecutors can be paid to avoid bringing a case forward or to assess the evidence in an unfair manner. Any actor within the judicial system is acting corruptly if he or she applies inappropriate influence affecting the impartiality of the judicial process. 3. When the rights of political participation are violated? In a democratic system, people have the right to vote and stand for elections; in other words, the citizen has the right to be involved in the conduct of public affairs. The fact that only a limited percentage of eligible voters partake in voting, and that their choices are limited to those who contest the election, is indicative of disguised violation of this important right. This happens because of people’s apathy and their helplessness. It is the muscle power and money power that influences the pattern of voting. While in theory any person can contest an election, in practice the contestants enter the fray because of their muscle power or money power, or because they belong to a political lineage. Political

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analysts generally take the easy path of interpreting election results in terms of percentage of votes polled, or the officially declared party affiliation of the candidate. But certification of public support based on such superficial data hides the reality of corrupt practices. For example, even in the early years of Indian independence when there was one dominant party, the single party never got even half the votes from the electorate that went to vote. A 40 or 45 per cent of vote from 60 to 70 per cent of the total electorate is hardly majority support. The act of deliberate abstinence from voting is also a form of political participation, but it is generally ignored in analyses. In the present-day coalition politics, the situation is more serious. When none of the parties gets a clear majority, and a party leading with the largest number of seats but less than 51 per cent of seats succeeds in forming the government, it is fallacious to assume that it has received a mandate to rule. It is easy to guess as to what transpires between the coalition alliance partners behind the curtain; the give and take in such negotiations is part of the corrupt practices that includes purchase of support, offering of ministerial posts – that helps the incumbents make tainted money, and granting of any other privileges. If a candidate is expected to spend several million rupees to win an election, such money is only an investment for the business of politics to earn greater dividends while in office. Electoral politics may be an indicator of democratic practice but it is also a source of political corruption that violates human rights. Over the years, corruption in public places has assumed unimaginable proportions. What in the 1950s was the total budget size appears now a drop in the ocean of embezzled money. It is this enormity of corrupt practices that has earned the wrath of the people and drawn them towards a massive protest movement that has characterized the year 2011 for India. *** Human rights are seen today in the context of state obligations. The state has an obligation to respect, protect, and fulfil human rights. The reports on the performance of human rights by various states focus on state actions in regard to the three obligations, and highlight violations by the state or its functionaries. But research on human rights has to go beyond collation of mere statistics. It must dig deeper to find out the key causes that lead to, or facilitate, the violation of human rights. It is not the

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function of the social scientist to give certificate to the government, or to criticize and castigate its actions. That task is better left to NGOs and the media. Social science research should attend to core issues and objectively investigate and analyse the prevailing practices. Let me briefly explain. Corruption, for example, is a form of social deviance. It occurs when the societal controls get weaker, or when the deviants are able to locate the vulnerable arenas in the system that allow them to indulge in deviant behaviour without the fear of detection. It is the task of good research on deviance to identify such vulnerable points and to suggest how these can be fortified, and also to suggest strategies that would not let fresh avenues for corruption to open up in the system. When schemes such as MNREGA or NRHM were launched most social science research supported by government funding focussed on the known indicators and either showered praise on the ruling coalition or engaged in superficial criticism of the known practices. Relying on the manifest objectives of the scheme, researchers do not care to unearth the latent intentions of the policy makers. If it is known that out of every rupee allocated for rural development only a fraction reaches the ultimate beneficiary, it should not have been hard to hypothesise that the money allocated for the schemes was latently targeted to the people in the middle range – the bureaucracy and the grass roots political machinery. Under the shroud of charity and the pious aim of eradication of poverty or provision of guaranteed employment the money can make hidden movements in other channels to the advantage of the ruling coalition. Corruption, understood as bribery, involves at least two parties: the corruptor and the corruptible. These roles are transferable. The corrupter is one who is guilty of offering a bribe; but he may also be the person who demands the bribe for doing the job. Offering of bribes is governed by the criteria of affordability, exigency, and what I like to call a Willing Suspension of Grievance – or WSG. When the client is unable to afford, is not in a hurry to expedite, and when his limits of tolerance are crossed – that is, when his WSG is surpassed he ceases to be corruptor and the corruptible. An officer is corruptible when he is offered the bribe much higher than his expectation and when he is sure of its non-detection. How these roles interchange and what kind of people fall prey to such allurements are the questions that need to be studied. It is also important to study as to why a movement against corruption has received such a massive support only in the year 2011 – several years after independence.

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The factors that facilitated the movement and the factors that are operating to hurdle it need to be investigated. *** This is not the occasion to go beyond raising some seminal issues. My task in this keynote is to make an appeal to fellow social scientists that human rights is a field that awaits serious social science research. Mere organization of awareness campaigns or showering praises on the ideals enshrined in the UN Declaration of Human Rights or even compiling statistics on human rights violations is just not enough. There are other agencies doing this job. Social sciences will have to create a niche to situate itself and contribute to the cause by way of not only teaching but doing serious and scientific research. The time for this is here and now. I wish and hope that this academic meeting will move in that direction.

Notes 1 The General Conference of the United Nations adopted the Universal Declaration of Human Rights on 10 December 1948. Every year this day is celebrated as the Human Rights Day. 2 Edited by me in collaboration with Professor Vitit Muntarabhorn of Chulalonglorn University, Bangkok. Professor Vitit also developed a children’s game on Human Rights with UNESCO’s help.

PART I: POLITICO-LEGAL ANALYSIS OF HUMAN RIGHTS The first part of the book analyses politico-legal perspectives of human rights. Comprising four leading papers of the section, the part attempts to examine the working of both formal and informal institutions as growing concerns of human rights in contemporary world society. The first paper in the sequence is written by a young Iranian scholar from the Faculty of Law, University of Delhi, Fatemeh Eslami. Fatemeh Eslami’s paper analyses the impact of the World Trade Organization (WTO) on Intellectual Property Rights in developing countries from a human rights perspective. The paper focuses on the empowerment of the WTO by bringing many new issues under its ambit, e.g., TRIPS (Trade Related Intellectual Property Rights). Such a move, argues the scholar, has left a great impact on the human rights of common citizens across the world. The author in her findings highlights the need for greater representation of poor countries in the WTO and more pro-active and people-sensitive governance voicing the opinion of the people. Other important contributions in the politico-legal section of the book have projected the issues of defence and security, human trafficking and terrorism. One of the papers in this part throws light on the Armed Force Special Powers vis à vis human rights. Written jointly by Basant Singh and Sandeep Kaur of Panjab University, India the paper has cited many acts of commission and omission by security forces under the rubric of security. The key provisions of the Armed Force Special Powers Act (AFSPA) contravene both national and international human rights law and have led to gross and systematic violations of human rights of local people, particularly in one of the north-eastern states of Manipur. There is a need to review such acts in order to make them more humane, argued the authors. Viewing human trafficking as one of the “extreme forms of exploitation” and the “modern-day slavery” of the 21st century, the third paper of this section presents a critical overview of various popular interception and

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intervention strategies to human trafficking and attempts to develop an alternative framework by bringing family to the centre of the trafficking debate. Written jointly by a young social scientist and her academic mentors of IIT Kharagpur – Sonal Pandey, Hare Ram Tewari and Pradip Kumar Bhowmick – the paper critically analyses various existing approaches and models of human trafficking by underlining their merits and demerits. However, none of the popular models of human trafficking actually addresses the issue in totality, felt the authors. Hence, by according an important role to the institution of family in socializing and re-integrating the individuals as trafficking victims, the authors attempted to justify the family-centric approach to address the menace of human trafficking in contemporary world. The last paper of the politico-legal section underlining the problem of terrorism is written by Ved Pal Singh Deswal. The author argues that terrorism seeks to make illegitimate use of force to achieve political objective by targeting innocent people. The innocent killing of the civilians by terrorists invariably results into human rights violation across the world. Reiterating the role of the United Nations in containing international terrorism, the author also cites different laws as preventive measures initiated by the Government of India to root out terrorism in the country. However, these laws are not sufficient and they must be followed both in letter and spirit, claims the author. All the four papers of the section present the politico-legal aspects of human rights’ concerns from global perspective and advocate corrective measures to redress them through democratic mechanism.

CHAPTER ONE IMPACT OF THE WORLD TRADE ORGANIZATION ON INTELLECTUAL PROPERTY RIGHTS IN DEVELOPING COUNTRIES: AN ANALYSIS IN A HUMAN RIGHTS PERSPECTIVE FATEMEH ESLAMIh

Abstract The World Trade Organization (1995) has impacted the whole world including the developing countries in many ways. It has taken the globalization to new heights; with the establishment of a real international organization in the field of international trade. Initially the mandate of the WTO was limited to the legal regimes relating to international trade; however, with many subjects being brought into the fold of international trade, including human rights, environment etc., the WTO has strengthened its position vis-à-vis the developing countries. Consequently, many subjects which until recently did not come within the international legal regime have now become the focus of the new WTO regime. One of the important subjects being brought under the aegis of WTO has been intellectual property rights. This paper seeks to analyse the legal regime being enforced by the WTO in the area of intellectual property rights, particularly in developing countries. The analysis also focusses on the Millennium Development Goals Declaration.

h With special thanks to Professor J. L. Kaul, Professor In Charge, Faculty of Law, University of Delhi, India.

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Introduction The last few decades have witnessed fundamental changes in the domestic and international environment, especially in the field of trade. Countries put more effort into adjusting their rules and regulations to have better trade in the international scenario. They increasingly look to trade as an essential tool in their development efforts. In the 1960s and 1970s developing countries viewed UNCTAD (United Nations Conference on Trade and Development) rather than GATT (General Agreement on Tariffs and Trade) as the main institution through which they promoted their interests in international trade. But beginning with the Uruguay Round in the mid-1980s, their attitude changed, many of them became members of the GATT and a significant number played an active role in negotiations. Growing international trade and the involvement of civil society and the private sectors in WTO governing structures, the Committee on Economic, Social and Cultural Rights (CESCR) in May 1998 adopted a statement which called on the WTO to consider the human rights impact of trade and investment policies.1 Later in August 1998, the UN’s Sub-Commission on the Promotion and Protection of Human Rights adopted a resolution seeking the recognition of human rights as “the primary objective of trade, investment and financial policy”.2 The GATT preamble (1947) states that “trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steady growing volume of real income”.3 These basic objectives were reinforced in the Marrakesh Agreement, which established the World Trade Organization.4 The WTO is generally believed to have helped in creating a strong and successful trading system and has played an important role in economic growth and development. The WTO states that “The World Trade Organization is the only international organization dealing with the global rules of trade between nations. Its overriding objective is to help trade flow smoothly, freely, fairly and predictably.”5 In fact, it is the primary international body aiming to help promote free trade, by drawing up the rules of international trade and economic rights, encouraging economic growth of the world through democratic processes and transparency. Developing countries which follow the tenets of the WTO can be a good example of such violations. They reduce tariffs year after year and are

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dismayed to find that there are no level playing fields in the WTO. On the other hand, developed countries, especially the US, are seeking more market opening commitments from emerging economies like China and India, something that has stalled the Doha Round of global trade talks under the WTO.6 Harsha Vardhana Singh, the Indian Deputy Director General at the WTO, said: The U.S. and the European Union have been asking emerging market economies to commit to greater reduction in tariffs on industrial products, while developing countries want the rich nations to drastically reduce their “trade distorting” agricultural subsidies.7 The U.S. had been insisting that economies such as China and India that have recorded huge growth should be ready to shoulder larger obligations (opening their markets). However, China and India felt that though they had been growing, there was still a large share of the population that was poor and needed a safety net. Therefore, these countries felt it was not fair to ask them to take additional responsibilities at this point.8

These inequalities are a result of certain thoughtless actions on the commercial scene. For instance, the impact of the opening of markets is particularly negative when subsidized agricultural products are sold at dumping prices. Indian milk producers make massive losses due to the dumping of European milk powder, which first goes through a costly drying and extraction process in Europe in order to make it transportable, being mixed with water to be sold as milk again in India. It is not the European farmer who profits from this massive flow of subsidies – only the milk powder industry does.9 Yet another example which is happening especially in India is the flooding of markets with cheap Chinese imitations. This will end with the death of indigenous markets. All actions for dumping goods in another country were taken within the framework of the WTO, which is violated by US anti-dumping acts. In an interview with Nayanima Basu, Harsha Vardhana Singh declared that: Concerns are being raised at the highest level in the WTO as three per cent of the world trade today depends on the restrictive measures taken. Countries are taking note of this and they are taking a look at the factual basis and trying to see how it relates to coverage of various kinds of restraint. Countries are taking these market restrictive measures without looking at the overall perspective. So, they need to analyze the cumulative effect of this and should be more careful.10

Adding to this, Saurabh Chandra believes that:

6

Chapter One Unless there is not an effective rights system, there would always be a danger of usurpation of the rights. Such circumstances could hinder the transformation of new ideas and creativity into industrial applications. Traditionally the countries with largest gross domestic product (GDP) have also been those with high GDP per capita. But this is no longer true. Globally now, countries which are amongst the largest in the world, will have per capita income levels which are not the highest. The implication is that companies that wish to sustain themselves in such markets would need to continually innovate in production processes and in products and services.11

WTO Principles and Developing Countries The November 2001 declaration of the Fourth Ministerial Conference in Doha, stresses the “important role” of “well targeted, sustainably financed technical assistance and capacity-building programs”12 for developing countries in order to ensure that developing countries can participate fully in the WTO and take full advantage of the opportunities offered to them by their membership of the WTO. However, the Doha Round has missed several deadlines due to the entrenched positions taken by developed and developing nations on issues like tariffs on agricultural goods and free market access.13 According to Rahul Khullar, Indian Commerce Secretary: Until the developed countries get out of the global economic crisis, the conclusion of the round is not possible. It was pretty clear from mid-2009 that until the great recession played itself out, there was going to be no appetite in the developed world for taking on any trade agreement . . . because they are completely overtaken by the domestic fallout of the disaster that are happening to their economics . . . due to falling economic growth and rising unemployment in the developed countries. Nobody cares what is happening in Geneva or Doha.14

The main body of WTO law is composed of over sixty individual agreements and decisions15 and a number of principles which underlie the rules of the WTO as they affect all members, such as trade without discrimination, lowering trade barriers, being predictable and transparent, being more competitive and more beneficial for less developed countries; and to protect the environment.16 The principle of non-discrimination is enshrined in Articles I and III of the GATT. Article I known as the “Most Favored Nation” (MFN) clause and Article III, described as the “National Treatment Clause”, state that imports must be treated no less favourably

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than “like” domestic products. This clause requires that member-states afford equal treatment to “like” imports from all WTO Members. It means: if policymakers from member states want to use trade policies to protect particular human rights at home or advance human rights abroad, they must do so without violating GATT/WTO norms of (MFN), national treatment and like product. National treatment rules require member states to treat the products of foreign firms as those of local firms and policy makers cannot discriminate between products originating in different countries nor between the imported goods and like domestically produced goods. Consequently, this enables foreign corporations to purchase and control everything from water, health care and education facilities to agricultural technology and indigenous plants and knowledge. All in all, there is a huge migration of control and financial resources away from local enterprises and industries that would otherwise benefit society and strengthen local economies and make it harder to limit imports from nations where citizens may be subject to human rights abuses as they produce goods and services.17

Many of these principles sound good, otherwise why should a vast majority of the world’s nations have signed up to the WTO? But in reality, what the WTO faces today is receiving criticism by various groups and third world countries for numerous things. Now the question is how far the WTO has succeeded in achieving its aims and goals in reality. Developing countries make up three-fourths of WTO membership and by their vote they can influence the agenda and consequently the result of the negotiations, but they have never used this privilege to their advantage. A 1998 study showed that of the 97 developing countries that were then members of the WTO, 56 do not participate effectively in its work.18 It shows that developing countries have difficulty in participating in the WTO though critics believe that although each member-state has an equal vote, the WTO is democratic only in theory. One reason given for this is lack of capacity. Many of the poorest countries are not even able to have their WTO representatives in Geneva. Others only have one part-time delegate to cover the whole breadth of WTO issues, and only a handful of trade policy staff stay in their capital. In contrast, Japan has 23 WTO delegates in its Geneva mission, and the USA has 14, besides large and well-resourced trade offices in Tokyo and Washington DC respectively.19 Michalopoulos in his analysis of the representation and participation of developing countries in the WTO concludes that “although many developing countries are actively participating in the new process, more

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than half of them that are members of it participate a little more than they did in the early 1980s and have not increased their staffing, despite the vastly greater complexity of issues and obligations. Institutional weaknesses at home are the main constraints to effective participation and representation of their interests at the WTO”.20 To make their participation more effective, Michalopoulos recommends that the international community should place higher priority on programs of assistance in support of institutional development of poorer countries that aim at enhancing their capacity to participate in the international trading system and the WTO should review its internal rules and procedures to ensure that inadvertently they do not make developing countries participation more difficult.21 “The economy of most developing countries is in one way or another dependent on the US, the EU, or Japan in terms of imports, exports, aid, security, etc. Any obstruction of a consensus in WTO might threaten the overall well-being and security of dissenting developing nations.”22 Added to this, “poor countries are obliged to make concessions in order to trade with richer countries. When reluctant to do so, they are subject to armtwisting and bullying on the part of the economically powerful. This means that in practice, WTO rules are weighted in favor of the rich, and do not necessarily reflect the long-term interests of the poorest countries and their inhabitants. Even staunch WTO supporters agree that, at the time of negotiations for the creation of WTO, developing countries agreed to have substantially more obligations than developed countries did.”23 The WTO is famous for its non-transparent and undemocratic decisionmaking processes.24 Negotiation and process must be fair and open with rules equal for all. “Most, if not all, its key decisions are worked out in informal meetings. In many cases, only a few countries are invited to these meetings. Where and when these meetings took place, and who attended, as well as the positions taken by various countries, is not made known.”25 Lack of transparency and participation does not necessarily lead to harmful outcomes for human rights; nevertheless, they do stand in direct contrast to human rights principles like the right of everyone to take part in government of his/her country embodied in Article 21 of the Universal Declaration of Human Rights26 and to go against the right of the social and international order in which human rights can be fully realized.27 It also goes against the basic mandate of the UN Charter, which obliges the member states to create a social order entitling everyone to the full enjoyment of human rights.

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In August 2003 at the WTO General Council, India criticized WTO in its statements for deviating from the Doha mandate on agricultural negotiations and by not accommodating the concerns of the developing countries. If domestic support is not reduced and export subsidies are not eliminated, the distortions in agricultural trade can not be removed. India criticized the WTO for incorporating the tariff reduction formula put forward by the United States and the European Union. India argued that the framework for tariff reduction worked out by the European Commission and the U.S. is tailor-made to suit their tariff structure and enable them to make minimal contributions to market access while placing inordinately high burden on many developing countries”.28

The Uruguay Round and Agriculture: Is it a Root of Violation of Human Rights in Developing Countries? Since “developing countries are a large percentage of the WTO membership, agriculture is critical for the economic growth, poverty alleviation, food security and environmental sustainability for developing countries”.29 Pressure from major agricultural exporting countries in the Cairns Group30 and the concerns of two major developed trading blocs – the US and the EU – put agriculture into the Uruguay Round.31 Until the Uruguay Round, the trade negotiations focused on non-agricultural goods, mainly because they wanted to protect their farm sector. Over the years the developed countries saw an expansion of their corporate interests, and lobbied for the incorporation of more issues into the GATT and the WTO. Both the US and the EU needed to find markets in order to reduce expensive subsidies. Disagreements between them over agriculture nearly stalled negotiations in the GATT until they reached a compromise agreement in 1992. These two major trading blocs largely thrashed out the AoA (Agreement on Agriculture) and selected the base year and detailed targets so as to benefit exclusively from the provision. Many, if not most, developing countries reportedly signed up to the Uruguay Round without understanding the implications of the agreements for their farmers and food security.32 Nelson Mandela, commenting on the Uruguay Round, said: The developing countries were not able to ensure that the rules accommodated their realities . . . it was mainly the preoccupations and problems of the advanced industrial economies that shaped the agreement. Rules applied uniformly are not necessarily fair because of the different circumstances of members.33

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Article 20 of the Agreement on Agriculture (AoA) negotiated during the Uruguay Round mandated the continuation of the negotiations in agriculture.34 Developing countries criticized for imbalances in AoA like industrialized countries have been able to secure exemptions for some of their policies (like the Blue Box)35 and were allowed to continue using significant amounts of expenditures for domestic support and export subsidies.36 Moreover, in the WTO developing countries argue that “subsidies and protection are needed to ensure food security, to support small scale farming, to make up for a lack of capital, or to prevent the rural poor from migrating into already over-congested cities. The proposals from India and Nigeria emphasized food security issues for developing countries.”37 Now agriculture services, financial, services, telecommunications, information technology, intellectual property rights, electronics and commerce are included in the agenda of the Uruguay Round. The next possible logical step will be the inclusion of investment, government procurement and competition policy. The Agreement on Agriculture (AoA) through its Article 20 mandated the continuation of negotiations in agriculture that had begun during the Uruguay Round. The negotiations commenced in March 2000 followed by stocktaking of the advances and proposals in March 2001 which paved the way for the Fourth WTO Ministerial Conference in Doha, Qatar between 9 and 13 November 2001. However the AoA has earned the ire of the members and has been beleaguered with severe criticisms. Rich countries have the legal room and the resources to implement the variety of policies allowed under that legal text, while developing countries lack the needed financial resources despite having legal room for manoeuvring. In a similar vein, it has been argued that the legal exemptions allowed for developing countries are of no use to them, mainly because the policies permitted are very difficult to implement due to financial, technical and human resource requirements.38 “Some countries say WTO arrangements should be more flexible so that developing countries can support and protect their agricultural and rural development and ensure the livelihoods of their large agrarian populations whose farming is quite different in scale and methods”.39

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Human Rights to Food and TRIPS Agreement One of the most crucial legal instruments in which the relationship between Intellectual Property Rights and Human Rights can be examined is the International Covenant on Economic, Social and Cultural Rights (ICESCR).40 The relationship between human rights and intellectual contributions was a topic of debate during the drafting of the Covenant. Subsequently, it only came back into the limelight as a result of problems faced by developing countries like the right to health and food which can be affected in the context of their implementation and commitments under TRIPS Agreement or intellectual property rights treaties. “In general, Article 15 of ICESCR seeks to ensure that states provide an environment within which the development of science and culture is undertaken for the greater good of society while recognizing the need to provide specific incentives for this to happen. Article 15 (1) is more specifically concerned with the balance between the individual and collective rights of all individuals taking part in the culture and enjoy the fruits of scientific development, as well as the rights of individuals and groups making specific contributions to the development of science or culture”.41 In the past decade, these questions have evoked increased interest from several bodies that have addressed some aspects of this issue. The conclusion of the Sub-Commission on Human Rights, for instance, put forth that: Since the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and invisibility of all human rights including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self determination, there are apparent conflict between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other. 42

It is widely recognized that there is enough food in the world to feed everyone. Approximately from 460 million to 1.1 billion people in the world are going hungry today.43 “The US-led WTO agricultural policies which promote food availability through trade and discourage countries from developing food self-sufficiency will not meet the food needs of a growing world population. Most developing countries are short of foreign exchange and cannot afford to buy food from the world market, despite low pricing and cheap availability.”44 Professor Olivier De Schutter, UN Special Rapporteur on the right to food, states that:

12

Chapter One Too many people are too poor to buy the minimum amount of food they need to prevent hunger. Even if food supply is sufficient, we will continue to have hungry people unless policy makers address the problem of access to food and make changes in income distribution and trade policies that are needed to ensure that the human right to adequate food is realized in practice.45

Without adequate food, the victims of human rights violations may be too physically, emotionally and mentally distracted to be able to exercise their civil and political rights. Conversely, when civil and political rights are violated, attempts at redress for violations of economic, social and cultural rights will also prove futile.46 The UN Special Rapporteur on the right to food emphasizes the right to have regular, permanent and free access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear. 47

The majority of the one billion hungry people in the world are food producers, mainly peasants and rural workers such as landless labourers or small farm holders. The impact of AoA on the right to food is most immediately felt by them and yet remain hungry because they have neither sufficient land to produce enough food for their households nor enough income to purchase food to make up the deficit. According to the International Fund for Agricultural Development (IFAD), more than 75 per cent of the hungry live in rural areas.48 As a general rule, small peasant families, who produce staple foods for the domestic market, are the ones who directly suffer the consequences of market liberalization. They usually do not benefit from any system of state support or provision of services.

Right to Health and to Essential Medicines The impact of intellectual property rights on access to essential medicines in developing countries has been at the centre of international debate and policy-making for almost a decade now. Especially in recent years, health has been recognized as an important right in many of the international treaties as well as international organizations in the aftermath of the formation of WHO and WTO. Under its mandate of realizing the highest attainable state of human health, WHO became the first inter-

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governmental forum for consultation on the issue of access to drugs under WTO agreements. “The first consideration of WTO at the World Health Assembly (WHA) was found in 1996 Resolution 49.14.2(1), which requested that the Director-General should report on the impact of the work of WTO with respect to national drug policies and essential drugs and make recommendations for collaboration between WTO and WHO.”49 In 1998, WHO released the report requested in the 1996 Resolution, which inter alia, provided members with recommendations on the implementation of TRIPS to mitigate negative effects of patent protection.50 Article 31 of the TRIPS Agreement imposes conditions on compulsory licences and sets out eleven conditions for the grant of compulsory licences without the authorization of the patent holder. This will raise the prices and put essential medicines out of reach of the people. On the other hand, medical patents have direct impact on accessibility and affordability.51 Accessibility to essential medicines means strengthening drug policy and health care delivery systems, constructing access-enabling domestic intellectual property legislation, building effective domestic or regional drug regulatory systems and providing sustainable finance for affordable and effective drugs. They have the potential to improve access by providing incentives for the development of new drugs as well as to restrict access because of the comparatively higher prices of patented drugs. In practice, access to drugs is governed by a number of factors, their price being one important factor. Other factors that influence access to drugs include situations where there is only limited competition between generic producers, local taxes and mark-ups for wholesaling, distribution and dispensing.52 Improving access can be enhanced not just by bringing prices down through competition but must also include further measures such as public subsidies or price control measures.53 “Article 25 of the UDHR54 and Article 12 of the ICESCR55 recognize the right of everyone to the enjoyment of the highest attainable standards of physical and mental health”.56 However, disease and ill health continue to ravage poor people worldwide. Access to affordable quality medicines is critical for patients in poor countries suffering a disproportionately high burden of disease. Laws on TRIPS are having a negative effect on health systems especially in those developing countries which produce cheap generic versions of drugs, particularly India and China, and those countries whose health systems depend on the supply of these cheap drugs. In January 2005 India incorporated TRIPS laws into its patent legislation. Indian generic drug

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companies will no longer be able to produce generic versions of any new drugs unless compulsory licences or government-use orders are issued.57 There is a risk that companies in India and China will now focus on developing products for conditions affecting richer populations rather than on the neglected diseases which mainly affect the poor in these countries. “Section 5 of TRIPS imposes an obligation on states to offer patent protection for any pharmaceutical product or process, regardless of where it was devised for twenty years.”58 Although TRIPS does not stipulate the criteria for patentability, little flexibility exists with respect to pharmaceuticals.59 The rule against discrimination as to the field of technology precludes patent laws that discriminate as a matter of fact or law against certain kinds of pharmaceuticals,60 unless they fall under the exception for diagnostic, therapeutic, surgical methods, or biological processes as non-patentable subjects.61 States must also confer upon the owners of pharmaceutical patents the enjoyment of exclusive rights to make, use, or trade the drug.62

UN Human Rights Body and Right to Health The UN outside of the WHO has acted on the issue of access to essential drugs before 2000, especially through the Joint UNAIDS Program instituted in 1996 which replaced the decade-old WHO Global Strategy Against AIDS. In May 2000, the UNAIDS Program conducted the “Accelerating Access Initiative” with the largest pharmaceutical companies to freely donate drugs and to lower the prices of HIV/AIDS drugs by 80 per cent.63 NGOs and other commentators were sceptical recipients of the Accelerating Access Initiative which pre-empted the attempt to issue compulsory licences against the same drugs by drug companies. On 11 May 2000, the Committee on Economic, Social and Cultural Rights (CESCR), the authoritative interpreter of the ICESCR, issued its first General Comment on Implementation of the Right to Health. The CESCR has interpreted the right to health as “an inclusive right extending not only to timely and appropriate health care, but also to the underlying determinants of health”.64 The core obligation included access to and the availability of essential drugs of quality. The WHO Action Program on Essential Drugs and Economic defined and identified accessibility and affordability, as a prerequisite element of the right to health.65 This General Comment elaborated in detail the provisions on the right to access to medicines as a necessary component of the right to the enjoyment of health. “However, it also imposes on states various

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obligations which are of immediate effect, such as the guarantee that the right will be exercised without discrimination of any kind and the obligation to take deliberate, concrete and targeted steps towards its full realization.”66 A resolution soon followed in July 2000 on this matter at the UN SubCommission on Human Rights which was adopted without a vote on 17 August 2000. It collided head on with TRIPS and set down a wide-ranging agenda for action by UN agencies and inter alia gave notice that actual or potential conflicts exist between TRIPS and the need to realize economic, social and cultural rights which “included restrictions on access to patented pharmaceuticals and the implications for the enjoyment of the right to health. The primacy of human rights obligations over economic policies and agreements seeking integration of international human rights obligations and principles constituted a reminder to all governments of their obligations towards the health of their citizenry”.67

Conclusion An appeal goes out to human rights advocates to look beyond the WTO itself and widen their focus. It should include national trade policy-making processes and regional and bilateral trade negotiations. The application of human rights rules and mechanisms must ensure an international trading system that is the humane guardian of human rights. It is imperative to address all problems and seek redressal of mainstream human rights violations in WTO. WTO guarantees better human rights with consistent public interest outcomes along with a system of international trade rules and bilateral trade agreements. Human rights advocates should note that the WTO is a forum to maintain and scrutinize trade policy-making at the national, bilateral and regional levels. People must use their governments to achieve cooperative control over essential resources of life which need to be shared equitably in the international arena to satisfy a human need and not as a brinkmanship game for corporate profiteering. The reduction in corporate controlled trade, debt accumulation and wasteful development projects will occur when resources are shared. The progressive dismantling of the international financial institutions will reduce their vice like grip and interference over global affairs. In the final analysis, however, the onus will be on national decision makers to revise existing intellectual property protection rules and decide how to attain the best results. The measures

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need to pay heed to the premise that the human rights and intellectual property regimes do share a common core objective of encouraging creativity and innovation that ameliorates the ill of the society as a whole. Aileen Kwa68 believes the WTO must change and review lopsided practices and rules to “incorporate the new realities and broader development agenda of the Southern members”, inclusive of the following facts: x “All members should equip themselves with the technical expertise and relevant data of human resource issues to participate actively in the multilateral negotiations. The fast track liberalization must cease forthwith to usher changes in regulations and rules that are disadvantageous to the economies of developing countries.” x “Decision making in the WTO should be all inclusive. To date this has not been the case; instead the big four or the ‘squad’ of U.S., EU, Japan and Canada decided on behalf of all. The dispute settlement mechanism must have the tooth to protect the development needs of the most vulnerable countries by looking beyond violations of free trade rules to offer equitable justice without fear or favour to all members. The recent dispute over the ‘banana trade’ is a case in the point. WTO ruled in favour of the U.S. thereby cutting EU's traditional arrangement of preferential access to Caribbean banana exporting countries. This ruling could consequently devastate the Caribbean economies that depend solely on banana exports for economic survival.”69 x The competition for the farmers of the developed and developing countries cannot be equal. To avoid inequality and to compete in the same markets, the “$280 billion in annual subsidies that developed countries provide for their farmers”70 needs reduction to the paltry sums that developing countries provide. If the developing countries failed they would be compelled to seek permission “to increase both their subsidies and their tariffs to protect their markets from the highly subsidized exports of the developed countries”.71 There should be no attempts to kill small scale farms in both developed and developing countries. They need encouragement not the squeezing out of the last drop of their pound of flesh.

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x To protect and preserve basic health care and agricultural systems of developing countries “the seeds, plants, and drugs should be exempt from TRIPS” to the very least. Currently, TRIPS works in contravention and contradiction of the principles of the Convention on Biodiversity.72 The human rights assessment of the AoA must heed to more than its impact on the victims. Particularly the small peasants and rural workers are the worst hit. International trade in agricultural produce should have a structure in which there is no violation of the right to food. The states are obliged to protect, respect and fulfil the right to food under the international law. Therefore, the trade agreements must desist from curtailing their ability to implement the appropriate policies. x WTO should insist on compelling all countries to liberalize and the protected sectors in the U.S. should open up liberally to new export markets of the developing nations. The WTO should liaise with relevant UN agencies for the establishment of international standards in keeping with UN conventions which will ensure that development goals are in tandem with its trade agenda. x The human rights obligations of member states of WTO should not be in contradiction to its regulations as this may result into conflicts. In such a case the human rights obligations should precede all other rights. Importance of the right to food must be central to any agreement on trade in agricultural produce. And the last but not least: (a) All agreements on agriculture must effectively put an end to the existing distortions that allow dumping of surpluses. At the same time, countries must have the right to structure their agricultural policies in such a way that the human right to food is not violated. WTO regulations and control become ineffective if the member states are obliged to liberalize their markets on the one hand while the developed ones are permitted to continue to subsidize on the other. In the present system, wealthy countries can maintain and manoeuvre, while the ability of poorer countries implement agricultural policies of their own choice gets constantly curtailed. (b) The right to food obligation on the states to support those, without access to food and other productive resources. Accordingly, human

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rights law entitles small peasants facing ruin and destitution to special protection and support of the state. On the contrary, the neoliberal trade doctrine requires equal treatment of all agricultural products, irrespective of their origin within or outside of the country. (c) The states should be capable of limiting trade if they affect their right to food concerns, especially in cases where the state does not offer other forms of compensation such as social security systems. (d) International food aid must be strictly forbidden as it often becomes a mode of disposal of agricultural surpluses. (e) Agreements on trade in agricultural produce need close monitoring and maintain high human rights standards. The new members who accede to the membership must assess the consequences of accession to such agreements before becoming an integral part of the negotiations for accession. (f) The international right to food codes entails a number of corresponding national and international state obligations for the agricultural sector. The Agreement on Agriculture of WTO must recognize the primacy of these obligations for having human rights perspectives.

Notes 1

Dommen, Caroline. “The WTO, International Trade, and Human Rights” in Michael Windfuhr (ed.) Mainstreaming Human Rights in Multilateral Institutions. (visited on 28 August 2012). 2 Cited ibid. Sub-Commission Resolution 1998/12. http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1998 .12.En?Opendocument. (visited 28 Aug. 2012). 3 Taken from (visited on 9 Feb 2013) 4 Taken from (visited on 9 Feb 2013) 5 Taken from (visited on 24 August 2012).

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Singh, Harsha Vardhana (2012). “Developed Nations want Emerging Economies to take more Responsibilities”, Business Standard, 19 July. (visited on 24 August 2012). 7 Singh, Harsha Vardhana (2012). ‘Doha Round Nowhere Near Conclusion’, Business Line, 18 July. (visited on 25 August 2012). 8 Ibid. 9 Windfuhr, Michael (2003). “Trade and Human Rights, the Agreement on Agriculture of the WTO and the Right to Food Context, Conflicts and Human Rights Violations”. September. 10 Interview with Nayanima Basu, on the sidelines of a FICCI Seminar, Harsha Vardhana Singh, Deputy Director General, WTO, New Delhi, India. (visited on 25 August 2012). 11 Chandra, Saurabh (2012). “IPR is Critical to meet Global Competition”, Finance Buzz, 27 April. < http://ficci.com/ficci-in-news-page.asp?nid=5783> (visited on 25 August. 2012). 12 Taken from < http://www.oecd-ilibrary.org/development/building-capacity-totrade_074824026731> (visited on 9 Feb 2013) 13 ‘Lucky if Doha talks conclude by 2014’, FICCI function, Indian Express, 21 December 2011 (visited on 25 August 2012). 14 Ibid. 15 See “International Finance Corporation, Cambodia and WTO: A Guide for Business, Chapter 4”, (visited on 20 August 2012). 16 See, www.wto.org. 17 Aaronson, Susan Ariel. “Seeping in slowly: The WTO and Human Rights”, (visited on 20 August 2012). 18 Michalopoulos, Constantine (1998). “The Participation of the Developing Countries in the WTO”, World Bank Policy Research Paper. No.1906, November 1999. 19 Jawara, Fatoumata and Aileen Kwa (2003). Behind the Scenes at the WTO – The Real World of International Trade Negotiations. London and New York: Zed Books. 20 Michalopoulos, Constantine (1998). “The Participation of the Developing Countries in the WTO”, World Bank Policy Research Paper. No.1906, November 1999. 21 Ibid. 22 Taken from Para 10, (visited on 9 Feb 2013) 23 Dommen, Caroline. “The WTO, International Trade, and Human Rights” in Michael Windfuhr (ed.) Mainstreaming Human Rights in Multilateral Institutions. (visited on 28 August 2012).

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Caroline Dommen is the founder and Director of 3D [Trade - Human Rights Equitable Economy], Geneva, Switzerland. She is the author of Trading Rights? Human Rights and the WTO, London and New York: Zed Books, 2004. 24 Dommen, Caroline. “The WTO, International Trade, and Human Rights” in Michael Windfuhr (ed.) Mainstreaming Human Rights in Multilateral Institutions. (visited on 28 August 2012). 25 Statement of the Third World Network at the WTO Symposia on Trade and Environment and Trade and Development, Geneva 15-18 March 1999 http://www.twnside.org.sg/title/legit-cn.htm 26 Article 21 of UDHR states: (i) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (ii) Everyone has the right of equal access to public service in his country. (iii) The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. 27 Dommen, Caroline. “The WTO, International Trade, and Human Rights” in Michael Windfuhr (ed.) Mainstreaming Human Rights in Multilateral Institutions. (visited on 28 August 2012). 28 ‘Tariff Reduction Formula Suits US, EU, India’, Economy Bureau (New Delhi, 2003). (visited 28 August 2012). 29 Taken from (visited on 9 Feb 2013) 30 “The Cairns Group is an interest group of 19 agricultural exporting countries, composed of Argentina, Australia, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Indonesia, Malaysia, New Zealand, Pakistan, Paraguay, Peru, the Philippines, South Africa, Thailand, and Uruguay.” Taken from (visited on 3 September 2012). 31 Environmental Information System, Ministry of Environment and Forests, Government of India. (visited on 3 September 2012). 32 Ibid. 33 Kwa, Aileen (1998). “WTO and Developing Countries”, Foreign Policy in Focus (Washington, DC), 1 November. 34 Díaz-Bonilla, Eugenio, Sherman Robinson, Marcelle Thomas, Yukitsugu Yanoma (2002). “WTO, Agriculture, and Developing Countries: A Survey of Issues”, International Food Policy Research Institute. 35 “In WTO terminology, subsidies in general are identified by ‘boxes’ which are given the colours of traffic lights: green (permitted), amber (slow down – i.e. be reduced), red (forbidden). In agriculture, things are, as usual, more complicated. The Agriculture Agreement has no red box, although domestic support exceeding

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the reduction commitment levels in the amber box is prohibited; and there is a blue box for subsidies that are tied to programmes that limit production. There are also exemptions for developing countries (sometimes called an ‘S&D box’, including provisions in Article 6.2 of the agreement)”. Taken from (visited on 9 Feb 2013). 36 Díaz-Bonilla, Eugenio, Sherman Robinson, Marcelle Thomas, Yukitsugu Yanoma (2002). “WTO, Agriculture, and Developing Countries: A Survey of Issues”, International Food Policy Research Institute. 37 Taken from:

(visited on 3 September 2012). 38 Díaz-Bonilla, Eugenio, Sherman Robinson, Marcelle Thomas, Yukitsugu Yanoma (2002). “WTO, Agriculture, and Developing Countries: A Survey of Issues”, International Food Policy Research Institute. 39 Taken from:

(visited on 3 September 2012). 40 See (visited on 9 Feb 2013) 41 “This is in part recognized by the Draft General Comment which states that intellectual property regimes should not unreasonably limit access by all segments of society to cultural life and to the benefits of scientific progress and its applications. See section 42, Draft General Comment No. 18, The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights, 22 June 2004”. Taken from 42 Resolution 2000/7, Intellectual Property Rights and Human Rights, SubCommission on the Promotion and Protection of Human Rights, 17 August 2000, UN Doc. E?CN.4/Sub.2/2000/7. 43 Food and Agricultural Organization and World Bank, respectively. From Asbjorn Eide, Wenche Barth Eide, Susantha Goonatilake, Joan Gussow and Omawale, “Introduction: The Food Problematique”, Food as a Human Right, United Nations University, 1984. 44 Taken from para. 23 (visited on 9 Feb 2013). 45 Polaski, Sandra, Olivier de Schutter, Steven Schonberger, Gawain Kripke (2009).The Right to Food and the WTO, Carnegie Endowment for World Peace, Washington, DC. 8 April. 46 Taken from < http://www.foodjustice.net/right-to-food/concept-of-the-right-tofood> (visited on 9 Feb 2013) 47 Ziegler, Jean (2002). “Right to food: Report to the Commission on Human Rights”, E/ CN. 4/ 2002/ 58, 10 January. 48 Rural Poverty Report 2001, IFAD, Rome, 2001. 49 Resolution on Revised Drug Strategy, Forty-Ninth World Health Assembly, W.H.A. Res. 49.14 ¶ 2(1)(1996).

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50 Velásquez, Germán and Pascale Boulet (1999). Globalization and Access to Drugs: Implications of the WTO/TRIPS Agreement (rev. ed. 1999), WHO Doc. WHO/DAP/98.9 at 16. 51 Cullet, Philippe (2007). “Human Rights and Intellectual Property Protection in the TRIPS Era”, Human Rights Quarterly, 29.2, 403–430. 52 See, Joint Report of the WHO, UNICEF, the UNAIDS Secretariat and Médecins Sans Frontières: Sources and Prices of Selected Drugs and Diagnostics for People Living with HIV/AIDS (2002). 53 Ibid. 54 Article 25.1 of the UDHR: “everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services”. 55 Article 12, ICSESCR recognizes: “(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: … (3) Prevention, treatment and control of epidemic, endemic, occupational and other diseases; (4) Creation of conditions which would assure to all medical service and medical attention in the event of sickness.” 56 Musungu, Sisule F. “Developing Countries and the Promotion of the Right to Health in Multilateral Institutions: A Review of Developments in Trade and Health Institutions”, p. 369. http://www.swisshumanrightsbook.com/SHRB/shrb_03_files/24_453_Musungu.pdf (visited on 19 October 2012). 57 Department for International Development Health Systems Resource Centre (DFID SRC) < http://www.dfidhealthrc.org/> (visited on 3 September 2012). 58 Butler, Christopher (2007). “Human Rights and the World Trade Organization: The Right to Essential Medicines and the TRIPS Agreement,” Journal of International Law & Policy V. Available at https://www.law.upenn.edu/journals/jil/jilp/articles/5-1_Butler_Christopher.pdf (visited on 9 Feb 2013). 59 Watal, Jayasharee (2000). “Access to Essential Medicines in Developing Countries: Does the WTO TRIPS Agreement Hinder It?”, Science, Technology and Innovation, Discussion Paper No. 8. Harvard University: Centre for International Development, p.107. 60 Panel Report, Canada – Patent Protection of Pharmaceutical Products (Generic Medicines), WT/DS114/R ¶ 7.94 (Mar. 17, 2000). 61 TRIPS, Article 27(3)(a), (b). 62 Ibid, Article 28(1)(a). 63 “International Federation of Pharmaceutical Manufacturers, Accelerating Access Initiative Fact Sheet”, (visited on 4 September 2012). 64 Taken from (visited on 9 Feb 2013) 65 See: 66 See the WHO website:

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67 See:

68 Aileen Kwa “is a trade analyst with Focus on the Global South, a policy research and activist organisation. She is currently based in Geneva, tracks WTO issues pertaining to developing countries and sends out analyses to civil society groups on the problems developing countries are experiencing in the negotiating process, as well as the implications of issues being negotiated. She is an expert in the area of agriculture and the WTO and has provided Geneva-based developing country delegates to the WTO with research and technical support in this area”. See 69 Kwa, Aileen (1998). “WTO and Developing Countries”, 1 November. See:

70 Ibid. 71 Ibid. 72 Ibid.

CHAPTER TWO ARMED FORCE SPECIAL POWERS VIS-À-VIS HUMAN RIGHTS: THE INDIAN CASE BASANT SINGH AND SANDEEP KAUR

Abstract Armed forces are generally deployed for protection from external aggression, but in exceptional cases they can be deployed to tackle internal disturbances and other emergencies. Special powers, which have been granted to Indian armed forces in general and in particular to handle grave situations of internal disturbance and other emergencies vilate international norms such as the UN Declaration of Human Rights, 1948, the International Covenant on the Civil and Political Rights, 1966, the Convention against Torture and other Cruel or Inhuman or Degrading Treatment or Punishment, 1984, etc. The main objective of this paper is to study the details of special powers given to the armed forces, their relevance and usefulness, as well as to suggest measures to make such laws people friendly.

Introduction To maintain law and order is the primary responsibility of every state. It includes protection of its territorial integrity, sovereignty and vital national interests. Generally armed forces are deployed for protection from external aggression, but in exceptional cases they can be deployed to tackle internal disturbances and other emergencies. The Armed Forces Special Powers Act, 1958 (AFSPA) has been in force in the north-east since 1958 and in Jammu and Kashmir (J&K) since 1990. The Act has been in the news lately in view of public debates about it. The misuse of the Act in J&K has also figured in the headlines. The military has opposed changes to the Act in the face of opposition to the special powers it confers on the army. The

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cabinet committee on security has taken the army’s reservations on board. There is no clarity over its current status. The state governments intend to revoke the “disturbed areas” status in different parts of the state that have largely returned to normalcy. The northeast is a strategically vulnerable region of India with a historical problem which it does not share with the rest of India. Owing to violence and secessionist tendencies prevailing in some parts of the country including the north-east, the government of India drafted one of the most draconian and maligned laws that this country has ever seen. These laws made by the Union government have broadly influenced the centre-state relations and the fundamental rights of citizens. Given the interest and controversy surrounding the AFSPA, its correspondence with domestic law, in terms of protection of human rights, and human rights law needs to be considered. This piece of law still stands unaltered, even though provisions under it give the security forces power to violate fundamental rights. Ever since the government of India imposed AFSPA with the deployment of large number of Indian military forces, human rights violations (mainly characterized by their genocidal and racial nature) have been an issue in conflict zones of the north-east, especially in Manipur1. The very mention of AFSPA evokes a collective memory, the image of 40 Manipuri women storming the Assam Rifles Headquarters – 12 of them protesting naked in front of Kangla Fort in Imphal in 2004. These elderly and middle-aged women from different organizations of Meira Paibi2 were protesting against the rape and murder of 32-year-old Thangjam Manorama, who was picked up from her home in Imphal by soldiers of the Assam rifles, tortured, raped and killed. Routine instances of army violence in the north-east have often gone unnoticed in the mainstream media but the images of protesting Meira Paibis were too searing to be ignored. The brutal murder by army personnel triggered an unprecedented form of protest by these women. The protest sought to draw the attention of a nation obsessed with giving its army and police unrestricted and unaccounted powers in the name of national security. To follow the United Nations (UN) call of “All Human Rights for All” in the 62nd year of the Universal Declaration for Human Rights, India will do well to recall the words of Mary Robinson, the UN High Commissioner for Human Rights Commission. She said: An effective international strategy to counter terrorism should use human rights as its unifying framework. The suggestion that human rights

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Chapter Two violations are permissible in certain circumstances is wrong. The essence of human rights is that human life and dignity must not be compromised and that certain acts, whether carried out by State or non-State actors, are never justified no matter what the ends. International human rights and humanitarian law define the boundaries of permissible political and military conduct. A reckless approach towards human life and liberty undermines counter-terrorism measures.3

AFSPA and Indian Judiciary: Violation of Article 21 – Right to life Article 21 of the Indian Constitution guarantees the right to life to all people. It reads, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. Judicial interpretation that “procedure established by law” means a “fair, just and reasonable law” has been part of Indian jurisprudence since the 1978 case of Maneka Gandhi.4 This decision overrules the 1950s Gopalan case5 which has found that any law enacted by parliament meets the requirement of “procedure established by law”. Since Maneka Gandhi’s case, the court has consistently ruled that the procedure prescribed by law must be fair and reasonable and the law, in turn, must conform to the other fundamental rights, especially those embodied in Article 19(1) concerning all aspects of civil liberties; that “personal liberty” means more than mere absence of physical restraint and “life” means more than mere existence. The offence under section 4(a) is “acting in contravention of any law or order of the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapon or of things capable of being used as weapons i.e. fire-arms, ammunition or explosive substances”. Justice requires that the use of force should be justified by a need for selfdefence and the minimum level of proportionality. As pointed out by the UN Human Rights Commission, since “assembly” is not defined, it could well be lawful assembly, such as a family gathering, and since “weapon” is not defined it could include even a stone. This shows how wide the interpretation of the offences may be, and illustrates how disproportionate and irrational is the law of use of force.6 In the case of Naga People’s Movement of Human Rights v. Union of India (NPMHR hereinafter),7 the courts’ insensitivity to citizens’ rights in cases where “national security” is involved can be seen where the judgment is

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rich with patriotic rhetoric but wholly out of place in judicial pronouncements. The Supreme Court questioned States’ statutes empowering men in arms with “a licence to kill”8 bypassing Article 21 of the Constitution, which recognizes the right to life of every person, be it a citizen or even a foreigner. In fact, it recognized the honourable Supreme Court’s judgment in NPMHR9 where it upheld the constitutional validity of the Act.10

Protection against Arrest and Detention – Article 22 Article 22 of the Indian Constitution states: (1) No person who is arrested shall be detained in custody without being informed the grounds for such arrest, nor shall be denied the right to be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twentyfour hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.11 A petition filed by the Peoples Union for Human Rights12 challenged the Act before the High Court and contended that the said Act, being opposed to fundamental rights, was ultra vires. It was further argued that the armed forces in the name of flushing out extremists were perpetrating atrocities on the innocent men, children and the old. It is pertinent to mention that the Government of India declared the Naga-inhabited hill areas in the northern Manipur as a disturbed area and that notification of declaration was not rescinded for over a decade. The question raised before the Court was whether the army authorities, under the provision of the Armed Forces Special Power Act, 1958 could arrest a person – male or female – without any request from or reference to Police of the State, where the above Act happened to be in force. The court after considering the arguments of the parties was pleased to hold it affirmatively. However, certain restrictions were imposed on the government by directing the central government as well as the state government to issue instructions to the army officer concerned to produce the arrested person at the nearest police station “with least possible delay” so that the police in turn might produce the person before the magistrate within 24 hours of the arrest. Thus, the court has

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restricted the army authorities from violating human rights in the name of curbing terrorism and insurgency. In Bacha Bora v. State of Assam13 the words “least possible delay” were explained as “within the shortest possible time”. But no arbitrary timelimit was set down, as it might not be possible in many cases to affirmatively say or precisely qualify the period of time by reference to hour, date and month. The Court is required to view each and every case very carefully. When an act is done after an interval of time and then there is no explanation forthcoming for the delay, it cannot be said to have been done with “least possible delay”. In Massoda Parveen v. Union of India,14 the Supreme Court echoed the Army’s argument that the recovery of arms and ammunition from the arrestee was an “apparent . . . first priority” that took precedence over the transfer of custody to civil police forces because “to cause any delay could lead to a failure of the operation”. The uncontested facts indicate that at no point have the members of the army involved the police either in search or arrest operations.

The Code of Criminal Procedure, 1973 (CrPC) and the Indian Constitution The Constitution of India defines maintenance of law and order as the primary responsibility of the State15 whereas the duty of the Central Government is to protect not only against the external aggression but also internal disturbance.16 Martial law can be enforced when there is a breakdown of civil government. Military law, on the other hand, is a distinct legal system adopted by all states for the discipline and regulation of their armed forces.17 It empowers military authorities to impose restrictions and regulations on civilians in order to deal with a situation of rebellion or war within the country. A proclamation is only a notice to the people that the military commanders have assumed control over the area but it in no way affects the legality or illegality of their actions. During the operation of martial law, civil courts ordinarily cease to function. Even when the courts function they do not exercise any control over the military authorities during the period of martial law.18 Article 34 of the Constitution of India states that notwithstanding the provisions guaranteeing fundamental rights and the right to move the Supreme Court for their enforcement, Parliament may by law “indemnify

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any public servant or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area in India where martial law in force and validate any sentence passed, punishment inflicted or forfeiture ordered or other act done during martial law in such area”. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.19 The State Government maintains law and order with the help of the police force under the Police Act, 1861. Under this Act20 the State Government is empowered to issue a proclamation declaring that any area subject to its authority has been found in a disturbed or in a dangerous condition and thereupon in exercise of the power conferred under sub-section (2) the Inspector General of Police or other officer authorized by the State Government in that behalf can employ any police force in addition to the ordinary fixed complement, to be quartered in the area specified in such proclamation. Sub-section (6) prescribes that every such proclamation issued under sub-section (1) shall indicate the period for which it is to remain in force, but it may be withdrawn at any time or continued from time to time for a further period or periods as the State Government may in each case thinks fit to direct. The Police Act makes no provision for deployment of armed forces. However, when there is a problem beyond the capacity of the state police force, the State requires the services of the paramilitary forces. If the problem still does not come under control, the State can command the assistance of the armed forces as a last resort, to restore order.21

AFSPA and International Law The key provisions of AFSPA contravene international human rights law and have led to gross and systematic violations of human rights of local people. Under relevant international human rights and humanitarian laws and standards, there is no justification for an Act like AFSPA, which in its form and application violates the Universal Declaration of Human Rights,22 the international Convention on Civil and Political Rights, the Convention Against Torture, the UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for Protection of All Persons Under any form of Detention etc. AFSPA violates the provisions of UDHR dealing with right to freedom and dignity,23 non-discriminatory

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treatment,24 right to life, liberty and security,25 outlawing torture,26 equality before the law,27 effective remedies28 and no arbitrary arrest.29

Violation of the Right to Life Under the shadow of such laws the armed forces are accused of violating the right to life under both the Indian and International law. This comes under Article 630 of the ICCPR (International Convention of Civil and Political Rights), and it is a non-abrogable right. No situation, or state of emergency, or internal disturbance, can justify the suspension of its right. Section 4 of the AFSPA empowers officers (both commissioned and noncommissioned) in cases of self-defence, but against any person contravening laws or orders “prohibiting the assembly of five or more persons”. In its general comment, the Human Rights Committee31 has stressed that “it is a right which should not be interpreted narrowly”.32 It went on to state: The Committee considers that State parties should take measures not only to prevent and punish deprivation of criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.33

United Nations carries on peace keeping operations through peace keeping forces under the supervision of the Security Council. UN peacekeepers provide security and the political support to help countries in the establishment of internal security. The following are the core principles as required by law enforcement officials: ¾ “As far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remains ineffective or without any promise of achieving the intended result.”34 ¾ Firearms should be used only “when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender”.35 Indian human rights groups point out that this section of the AFSPA bestows excessive powers upon the armed forces as against under ordinary

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criminal law. The violation of an order under Section 144, which prohibits the assembly of five or more persons, is punishable with a month’s imprisonment whereas a person can be killed for the same act under the AFSPA. In one case, on 16 November 2004 around 9:30 pm, a retired school teacher, L.D. Rengtuiwan, aged 75, was shot dead and his wife was injured by the bullet at Bungte Chiru village in Manipur. Twenty or thirty members of a paramilitary force, the Assam Rifles, who were searching for six suspected members of the United Liberation Front (UNLF), mistook these two old persons as UNLF members. The post mortem report pointed to the deliberate shooting of L.D. Rengtuiwan: The bullet which killed Mr. Rengtuiwan, went in through his chest and exited through his bottom. The pathway of the shot implies (i) firing at a close range and (ii) the person must have been in a “kneel down” position and the shot must have been fired from above his head at a share angle or more than 60 degrees.36

India is party to the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides the circumstances under which the state of emergency can be declared. It states, In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the situation, provide that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

The United Nations Human Rights Committee while examining the third periodic report of India in 1997 held that India is in violation of Article 4.3 of the ICCPR. In its concluding observations, the Committee regretted that Some parts of India have remained subject to declaration as disturbed areas over many years – for example the Armed Forces (Special Power) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer – and that, in these areas, the State party is in effect using emergency powers without resorting to Article 4 paragraph 3,37 of the Covenant.

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Violation of the Rights to Liberty and Security of Person Several provisions of the AFSPA violate the protection against arbitrary detention contained in the ICCPR and other international instruments. Section 4(c) and Section 5 of the AFSPA do not conform to Article 9 of the ICCPR. Section 4(c) provides that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces may in a disturbed area, (c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exist that he has committed or is about to commit a cognizable offence and use such force as may be necessary to effect the arrest.

Article 9 of the ICCPR provides that “no one shall be subjected to arbitrary arrest or detention”. The HRC has explained this provision thus: The Committee recalls that the notion of “arbitrariness” must not be equated with “against the law” but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.38

In addition, Article 9 of the ICCPR provides that a person must “be informed at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”. According to reliable sources, security forces rarely produce an arrest memo which explains the arrest.39 There are reported breaches of the ICCPR even when the AFSPA is followed. Article 9 of the ICCPR further provides that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power”. The Supreme Court of India in 1997 stated that arrested persons must be produced before a magistrate within 24 hours of arrest, excluding journey time.40 While section 5 of the AFSPA provides for the arrested person to be handed over to the nearest police station “with the least possible delay” and despite the fact that the courts – and in the late 1990s the National Human Rights Commission (NHRC) – have issued directives that this provision should be interpreted as meaning “within 24 hours”.

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Torture, Ill-Treatment and “Disappearances” Article 7 of the ICCPR provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Like the right to life, this right is non-abrogable, that is, it must be fully adhered to in times of emergency, including war and internal strife. Moreover, the prohibition of torture is a “norm of customary law”. In 1991, Supreme Court advocate Nandita Haksar recorded the use of torture by armed forces and police in the north-east which included: i) beating with rifle butts, kicking with boots and hitting with blunt weapons, ii) giving electric shocks, iii) depriving persons of food and drink and beating on soles of the feet, iv) threatening to shoot, interrogation with gun pointed at forehead or inside the mouth.41 In Nagaland, a Commission of Enquiry looked into the firing and arson incident of 27 December 1994 at Mokokchung in which armed personnel were guilty of burning and rape. The commission found great substance in the complaints of rape and molestation and stated that there should be “justification of such criminal misconduct”42 on the part of jawans (frontline army personnel).

Violation of the Right to Remedy The risk of abuse inherent in these provisions is further heightened by allembracing immunity covering all military officers involved. In particular, the Act provides: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act. The provisions of the Act have been, and reportedly continue to be routinely applied in practice”. The overall practical effect of the Act has been the de facto militarization of North-Eastern States and Jammu and Kashmir of India. Even the proponents of the Act have acknowledged that the general administration in these states is wholly dependent on the security forces.43 Section 6 of the AFSPA specifies that no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Article 2(3) of the ICCPR provides that state parties must

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Chapter Two ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

Article 32 of Indian Constitution makes provision for enforceability of fundamental rights. However, even during the initial debate over consideration of AFSPA in Lok Sabha, one member reportedly stated that Section 6 of the Act “immediately takes away, interrogates, pinches, frustrates the right to constitutional remedy, which has been given in Article 32(1) of the constitution”.44 The importance of denying absolute impunity has also been articulated by the Supreme Court: In order that the people may feel assured that there is an effective check against misuse and abuse of powers by the members of the armed forces it is necessary that a complaint maintaining an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the state and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and /or civil suit or other proceeding against the person/persons responsible for such violation.54

This direction has been supplemented in Paragraph 52 of the judgment, where the court stated: we are of the view that since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.

Remedy and redress are further limited by Section 19 of the Protection of Human Rights Act (PHRA), which prohibits the NHRC and state-level human rights commissions from investigating allegations of human rights violations by members of the armed or paramilitary forces. The NHRC, human rights activists in India and abroad have consistently campaigned for removal of this limitation of the NHRC’s jurisdiction, but have not achieved much success.

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Undeclared State of Emergency India is party to the International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR provides the circumstances for the declaration of the state of emergency. It states: In time of public emergency, which threatens the life of the nation and the existence of which is officially proclaimed, the States party to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.46

Under Article 4(3) of the ICCPR, Any State party to the present Covenant availing itself of the right of derogation shall immediately inform the other State Parties to the present Covenant, through the intermediary of the Secretary General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Declaring an area a “disturbed area” and granting the military extensive powers actually leads to an undeclared emergency regime. In its ruling, the Supreme Court countered this provision by claiming that the “act does not displace the civil power of the State by the armed forces” and does not amount to a “proclamation of emergency under Article 352 or a proclamation under Article 356 of the Constitution”. However, on India’s third periodic report the Human Rights committee has made the following observations: The Committee regrets that some parts of India have remained subject to declaration as disturbed areas over many years – for example, the Armed Forces (Special Power) Act has been applied throughout Manipur since 1980 and in some areas of that state for much longer – and that in those areas, the State party is in effect using emergency powers without resorting to Article 4, paragraph 3, of the Covenant. The committee recommends that the application of the emergency power be closely monitored so as to ensure its strict compliance with the provisions of the Covenant.47

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Reviews of AFSPA The Government constituted a five-member Constitution Bench of the Supreme Court headed by the then Chief Justice J. S. Verma to hear the petitions challenging the AFSPA. However, the apex court (Supreme Court) upheld the constitutionality of AFSPA and only recommended a number of guidelines to the army. This cosmetic review, as feared by many, proved to be totally ineffective in providing any protection to the people against the armed forces and their misuse of AFSPA. This became clear during the visit of Independent People’s Inquiry Commission48 to Manipur in 2000 and the Independent People’s Tribunal (IPT) on AFSPA in Delhi in 2005 and in Imphal in December 2009. The IPIC was formed in 2000 comprising of three-member commission headed by Justice H. Suresh, former Judge of Mumbai High Court. It travelled to Manipur and met a large number of victims, their relatives and friends to hear tales of injustice – cases of rape, violence and disappearances. It held workshops and extensive discussions with human rights lawyer, journalists, academics and others. The team assessed all the reports of the inquiry committees instituted by the armed forces against citizens of Manipur and looked carefully at the ground level implementation of “dos and don’ts” advised by the Supreme Court to the army.

Justice Jeevan Reddy Committee49 Committee headed by former Chief Justice, B. P. Jeevan Reddy, appointed in 2005, made the following three key recommendations: (i) To amend the provisions of the Act to bring them in consonance with the obligations of the Government towards protection of human rights; (ii) To replace the existing Armed Forces (Special Powers) Act, 1958 by a more humane Act. (iii) To insert appropriate provisions in the Unlawful Activities (Prevention) Act, 1967 (as amended in the year 2004) in order to protect the rights and interests of both citizens and the State. The reason that the Committee gave for the third recommendation was that the Unlawful Activities (Prevention) Act, 1967, is applicable to the entire

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territory of India including the north-eastern States, and is more comprehensive in dealing with terrorism. Besides this, the Committee also pointed out that the deployment of armed forces for such purposes should be undertaken with great care and circumspection. Unless it is absolutely essential for the aforesaid purposes, the armed forces of the Union should not be so deployed, since too frequent a deployment, and that too for long periods of time, carries with it the danger of such forces losing their moorings and becoming, in effect, another police force, prey to all the temptations and weaknesses such exposures involve. Such exposure for long periods of time may well lead to the brutalization of such forces, which is a danger to be particularly guarded against. Unfortunately, the Committee did not comprehensively discuss the human rights abuse and the ill-treatment meted out to the people.

Second Administrative Reforms Commission In June 2007, the Second Administrative Reforms Commission50 (ARC) chaired by Mr. M. Veerappa Moily,51 published its fifth report on public order. The Commission of Inquiry was set up by the President to prepare a detailed blue print for revamping the public administration system. A review of the AFSPA was included as part of the report’s chapter entitled “Constitutional Issues and Special Laws”. In its assessment, the ARC took into account the conclusions in the Naga People’s Movement of Human Rights (NPMHR) v. Union of India52 judgment recognizing the constitutionality of the act and the imposition of a periodic review. The ARC report relied heavily on the findings of the review committee chaired by Justice Reddy which stated that AFSPA should be repealed and appropriate provisions should be inserted into the act.53 The ARC’s recommendations support those of the Review Committee with the exception that the proposed additions made to the UAPA incorporating the provisions of the aid of civil power for deployment of armed forces would only apply to the north-eastern states. The Commission’s recommendations, submitted in June 2007, met with immediate resistance. It was stated that rather than scrapping the law altogether, mechanisms should be evolved to work for its improvement.

Independent People’s Tribunal on AFSPA During the Independent People’s Tribunal54 on AFSPA organized by the Human Rights Law Network in December 2009 in Imphal, victims of this

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act recounted their tales of torture, suffering and inhuman treatment by the Army. It became a platform for victims to narrate their experiences and to identify the underlying causes of human rights abuses and the State’s response, as well as to explore steps to eliminate its practice in the northeast, especially in Manipur. During a three-day hearing, the victims deposed before a jury of retired judges of High Courts of India and other eminent persons. The Jury recorded about 42 cases of violation55 – 40 cases of encounters and two incidents of torture. Out of the 42 cases, as many as 30 family members of the victims deposed before the Jury while 12 testimonies were presented in writing by the family members without deposition.

Conclusion The present paper is an attempt to discuss and analyse all aspects of AFSPA. The various provisions of the act in the light of the Constitution have been analysed and the legal validity of the act has been questioned. The paper states that the act has failed even to meet the international conventions and treaties that India has signed. Further, Part IV of the Constitution which deals with the Directive Principles of State Policy expects the State to show respect to all the international treaties and conventions that have been signed by the State. Moreover, the provisions given under CrPC have never been followed during arrest, search and seizure. The definition under the act is so vague that it gives a licence to the armed forces to interpret the definition according to their own whims and fancies and get spared even after committing gross violations of human rights under the guise of AFSPA. Further, various committees have clearly recommended the repeal of the act. The AFSPA has been functional in north-east India for over six decades. The act contains many provisions that are draconian in nature and have triggered human rights violations. It is a law that is in direct contravention of the basic structure of our Constitution. The legislation was adopted for the security of the nation but in actual practice has resulted into the violation of fundamental rights of life under Article 21 of the Constitution and other various international law and treaty obligations and rights. In fact, the Manorama case is not the first case of human rights violation or abuse of AFSPA. Many other cases under it have been documented and reports published from time to time show the gross violation of human rights by armed forces under cover of the act.

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The Asia-Pacific Forum of National Human Rights Institutions, which met at Kathmandu on 18 February 2004, expressed concern over the widening gap between commitment to international human rights standards and their implementation in national laws and administrative practices. These were reflected in: x x x x x

Administrative detention for prolonged periods without charge. Failure to ensure access to legal advice to the detenu. Extra-judicial killings. Grant of impunity for violations of human rights. Misuse of anti-terror laws to stifle legitimate political dissent and other fundamental freedoms. x Failure to provide adequate safeguards in anti-terrorism legislation.

The Forum, therefore, recommended that anti-terrorism measures must be enacted and administered within a culture of legality and must comply with international law, including human rights instruments and standards. It also said that any comprehensive response to terrorism must address its root causes. The constitutional limits within which a democratic government claims to function are often in conflict with efforts to effectively secure the life and liberty of its citizens pitted against the onslaughts of terrorists. India’s National Human Rights Commission has maintained that The war against terrorism must be fought boldly and won. But this duty, for all of the difficulties it entails, must be accomplished in a manner that accords with an uncompromising adherence to the provision of the Constitution of our republic, the laws of our land, and the relevant international instruments, including those on human rights, to which India is a party.

The Security Council, in a resolution passed on January 2003, stated that the government, while enacting and implementing anti-terrorist laws must “ensure that any measure taken to combat terrorism complies with all their obligations under international laws”. Kofi Annan, the former UN Secretary General, also said that respect for human rights, fundamental freedoms and the rule of law are the essential tool to combat terrorism.

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The nature of the conflict in north-east India is mainly that of an armed liberation movement waging low-intensity war against the Government of India. It is a sustained conflict between the organized armed forces and the liberation movements – each side justifying the use of violence as retaliation against the violence of the other side. Instead of addressing root causes and using the democratic space to resolve the issues, the government adopts policies that escalate the tendency to civil ethnic war. There is a violent intent in the actions of the government even in its peace talks or suspension of operations where it allows some armed groups to be free to continue violent activities towards other ethnic groups. Therefore, in order to solve the problems the root cause of the problems needs to be identified and effective measures of reconciliation adopted. In the report of Justice Jeevan Reddy’s Committee and other subsequent reports, repeal of AFSPA has been the salient highlight. But repealing the act may only address the symptoms and not the disease. Hence, there is a need for a paradigm shift to achieve a solution of the problems prevalent in the north-east and Jammu and Kashmir. What is required, therefore, is working out a mechanism to check the misuse of the draconian legislation. If the AFSPA is not repealed, it should be amended by making it more humane. It must comply with and conform to Indian and international laws. This means that a blanket power to shoot to kill under section 4 of the AFSPA should be amended according to the recommendations given by various Committees and Commissions. No meaningful enquiry is being conducted into the recurring incidents of violence and that there is no effective mechanism available to prevent the ongoing violation of human rights. Therefore, proper inquiries and investigation should be instituted and conducted and culprits should be punished. Proper rehabilitation of the families of deceased, injured and traumatized victims must be provided. Compensation as interim relief should be arranged promptly. Compensation should be adequate and purposeful and should be both for injuries to a person and for collateral damage. Every state should recognize the critical role played by non-governmental organizations (NGOs) and domestic groups in addressing human right abuses. NGOs should continue to put pressure on the state by reporting violations by the state of its international obligations. There is an urgent need to amend Section 19 of the Protection of Human Rights Commission from independently investigating allegations of human rights violation by members of the armed or paramilitary forces. India has ratified the Geneva

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Convention on Human Rights and by enacting the Geneva Convention Act the Parliament of India has brought it into force throughout the country. It is therefore, obligatory to implement international humanitarian law.

Notes 1.

Amnesty International (2005). India Briefing on the Armed Forces (Special Powers) Act, 1958. 2. Literally meaning women torch bearers. 3. Report of the United Nations High Commissioner for Human Rights and Follow-up to the World Conference on Human Rights, Human Rights: A Uniting Framework, ESCOR (58th Sess) UN Doc E/CN.4/2002/18 (2002), Annex entitled “Proposals for ‘further guidance’ for the submission of reports pursuant to paragraph 6 of Security Council resolution 1373 (2001)”. 4. Maneka Gandhi v. UOI (AIR 1978 SC 853). 5. A.K. Gopalan v. State of Madras (AIR 1950 SC 27). 6. South Asian Human Rights Documentation Centre, Armed Forces special Power Act: A Study in National Security Tyranny, available at: http://www.hrdc.net/sahrdc/resources/armed_forces.htm accessed on 12.02.2011 at 2:00p.m. 7. S. Bhaumik (1995). ‘India targets North-East Rebels’, BBC News, 29 October. Available in http://news.bbc.co.uk/2/hi/south asia/43881 accessed on 20.03.2011 at 4:00p.m. 8. AIR 1998 SCC 109. 9. A.G Noorani (2009). “Armed Forces (Special Powers) Act: Urgency Review”, Economic and Political Weekly, 44 (8). 10. AIR 1998 SC 431. 11. M.P. Jain (1998). Indian Constitutional Law. 6th edition. Calcutta: Karnal Law House. 12. Peoples Union for Human Rights & Ors v. Union of India & Ors (1991) 2 GLR 1. 13. (1991) 2 GLR 119. 14. AIR 2007 SCC 1840. 15. Entry 1-4 of List –II. 16. Mallick, P. K. (2007). “Role of Armed Forces in Internal Security: Time for Review”, CLAWS, Winter 69. 17. Bhatia, H. S. (2006). “Meaning, Legality and Scope of Martial Law”, Civil and Military Law Journal, Vol. 42, 161. 18. Hidayatullah, M. (ed.) (1984). Constitutional Law of India, Vol. I, 639. 19. Article 355, Constitution of India, 1950. 20. Section 15 of the Police Act, 1861. 21. Sections 130 and 131 of the Code of Criminal Procedure, 1973. 22. Hereinafter UDHR. 23. All human beings are born free and equal in dignity and rights.

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“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.” (Universal Declaration of Human Rights, Article 2) 25. “Everyone has the right to life, liberty and security of person.” (UDHR Article 3) 26. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (UDHR Article 5) 27. “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” (UDHR Article 7) 28. “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law.” (UDHR Article 8) 29. “No one shall be subjected to arbitrary arrest, detention or exile.” (UDHR Article 9) 30. “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” 31. Hereinafter the HRC. 32. Human Rights Committee, General Comment No. 6: The right to life, art. 6 (sixteenth session, treaty Bodies, UN Doc. HRI\GEN\1\Rev. 1 at 6 (1994, para.1). 33. Ibid. 34. Principle 4 of the UN basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Basic Principles), adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. 35. Code of Conduct for Law Enforcement Officials, adopted by UN General Assembly Resolution 34/169 of 17 December 1979, Article 3, Commentary. 36. Committee for the Repeal of the Armed Forces (Special Powers) Act, 1958, Why the AFSPA Must Go: A Fact Finding Report Available at http://www.amnesty.org/en/library/asset/ASA20/025.html accessed on 21.02.2011 at 4:00p.m. 37. Article 4.3 of the International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations on 19 December 1966: 34. Any State party to the present Covenant availing itself of the right of the right of derogation shall immediately inform the other State parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. 38. A. v. Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (30 April 1997), para. 9.2.

Armed Force Special Powers vis-à-vis Human Rights 39.

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Amnesty International, India: Briefing on Armed Forces (Special) Power Act, 1958 (Amnesty International, India, 2005) available at: http://www.unhcr.org/refworld/docid/45c1c2b62.html accessed on 20.04.2011 at 4:00p.m. 40. NPMRHR v. India, para.74. 41. Kamboj A. (2004). “Manipur and Armed Forces (Special Powers) Act, 1958”, Strategic Analysis 618. 42. Haksar, Nandita (1991). Submission to the International Covenant on Civil and Political Human Rights Committee: Armed Forces (Special Powers) Act, 1958: A report on Human Rights Violations in North East India. New York. Available at www.amnesty.org accessed on 20.04.2011. 43. People’s Union for Democratic Rights (1998). An Illusion of Justice. Supreme Court Judgement on the Armed Forces (Special Powers) Act, 1958. Delhi: PUDR. 44. South Asia Human Rights Documentation Centre. “Armed Forces Special Powers Act- A”. 45. Article 4(1) and 4(3) of ICCPR, respectively. 46. Concluding observations of the Human Rights Committee: India, Report of the Human Rights Committee, UN Doc. A/52/40 (1997), paras. 416–450, at para. 434. 47. Sub-part (1) guarantees that “Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such ground and in accordance with such procedures as are established by law.” 48. Hereinafter IPIC. 49. Reformed in 2005 by the Central Government in order to review the provisions of AFSPA. 50. Hereinafter the ARC. 51. Present Union Law Minister. 52. AIR 1998 SC 431. 53. Unlawful Activities (Prevention) Act, 1967. 54. Dobhal, Harsh (ed.) (in press). Manipur in the Shadow of AFSPA.

CHAPTER THREE HUMAN TRAFFICKING: POPULAR MODELS OF INTERCEPTION AND INTERVENTION SONAL PANDEY, HARE RAM TEWARI AND PRADIP KUMAR BHOWMICK

Abstract Human trafficking is the transnational organized crime prevalent across the world. Trafficking networks have established themselves across all nations in form of country of origin, transit or destination of victims. Year after year, thousands of men, women and children are victimized, falling into the trap of human trafficking. Trafficking has been widely recognized as a complex regime interfering with the criminal justice system, issues of human rights, gender, and public health and so on. The current study attempts to analyse the intervention strategies and approaches to human trafficking along with their merits and demerits based on the secondary sources of available literature on trafficking. In addition, an attempt has been made to develop an alternative framework (the family-centric approach) with “family” at its root in the trafficking discourse. The methods used in the study are analytical and descriptive. The study concludes that the unilinear approach to trafficking is not sufficient; multidimensional insights are required, which could target its perpetrators, protect the victims and address its root causes by involving all the stakeholders, especially the families and the community from which the vulnerability originates.

Introduction Human trafficking (HT) is one of the extreme forms of exploitation that exist in the twenty-first century (Morehouse, 2009). It is the second largest

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criminal industry in the world after illegal arms and drug trade (End Trafficking, 2012) generating an estimated $32 billion per year (Human trafficking under spotlight at the Conference of Parties Meeting, 2012; Deb, Mukherjee and Mathews, 2011; Isaac, Solak, and Giardino, 2011). Every year as many as 27 million men, women and children around the world are enslaved into the heinous trade called HT. Trafficking networks have established themselves across all nations in form of country of origin, transit or destination of victims (Pandey, 2010; Shelley, 2010; Mohiuddin, 2006). The current study presents a critical overview of the popular interception and intervention strategies to HT along with their merits and demerits based on the available books, articles, institutional reports and other literature on HT. In addition, an attempt has been made to develop an alternative framework (the family-centric approach) with “family” at its root in the trafficking debate. The methods used are analytical and descriptive.

Trafficking as a Criminal Law Issue Trafficking in various forms has existed in the society from times immemorial. It has been prevalent in some form in almost all parts of the world. In India, the bonded labour system (where the slave offered his labour in exchange for cash or devadasi1– a customary form of modern prostitution representing an archaic form of trafficking) continues unabated today, in different forms with new dimensions. Similarly, the Negro slavery system was popular in the African subcontinent where the Whites exploited the Negroes (or blacks) as slave servants (Hussain, 2004). There is immense diversity between and within different trafficking systems (Lackzo and Gramegna, 2003). It has been found that traffickers have established themselves into a nexus and varied actors control the trafficking operations including the recruitment, transportation and exploitation at the destination. Similarly, a geographical unit can be a source, transit, or destination unit depending upon the context. For example, a country may be a source nation in the international context but may itself have an established trafficking nexus within itself. Trafficking is an old phenomenon that is found unchecked even today in different forms and magnitude. Its acceleration can be traced to the origin of the capitalist market system and global trade between and amongst nations. Colonialism is considered to have perpetuated trafficking, where

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the imperial regimes preyed on the resources (raw material, labour of the natives etc.) of the colonies for their benefit and promoted the system of the slave trade throughout the world. Gradually, with the breakdown of the imperial regimes, the slave trade system received widespread condemnation and there arose massive uproar in favour of its abolition. With this, slavery came to be treated as a crime and breakdown of civil laws or intrusion into civil liberty of the citizens. Some of the international covenants related to trafficking are the 1904 International Agreement for the Suppression of the White Slave Traffic, the 1910 International Convention for the Suppression of White Slave Traffic. Later League of Nations, the 1921 Convention for the Suppression of Traffic in Women and Children and the 1933 International Convention for the Suppression of Traffic in Women of Full Age (“1933 Convention”), the Convention for the Suppression of the Traffic of Persons and the Exploitation and the Prostitution of Others (1949), the ILO Abolition of Forced Labour Convention No. 105 (1957), the ILO Minimum Age Convention No. 138 (1973), the ILO Worst Forms of Child Labour Convention No. 182 (1999), the Protocol against the Smuggling of Migrants by Land, Sea and Air (2000), and the most recent being the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000). The major methodological challenges confronting the criminal law approach are as follows: First, HT accounts for a myriad of activities. There are numerous forms and degrees of exploitation within many sectors and the methods by which people are moved are immensely diverse (Molland, 2005). The intricate nature of trafficking makes it hard to target and the scale of the phenomenon is difficult to judge. Secondly, the Palermo protocol stresses movement from one place to another as an essential element of trafficking, downplaying the local trafficking operations as victims may be exploited even in their native land. This gives rise to an additional constraint. It is difficult to track trafficking at the initial stage, before the exploitation begins. Individuals intercepted at borders or during movement to the destination employing forged identity documents or some kind of susceptibility are charged with illegal migration and treated as migration felons, while the perpetrators

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move scot-free. Weak legislation and limited judicial precedence (internationally there have been very few convictions) imply that there is also a lack of legal conceptual clarity which has perpetuated this trade in human beings (Molland, 2005). Moreover, the criminal justice treats victims as an instrument for criminal investigation; hence their role as witnesses is more emphasized. Besides, this approach focuses the effort on prosecution rather than protection, potentially turning victims into disposable witnesses and diverting attention from the promotion of human rights. Worse yet, this approach often criminalise victims, inhibiting their ability to utilise the legal system for protection or prosecution (Esq, 2007; Ray, 2006; Truong, 2003).

The Demand and Supply Framework In a “Special Report on Violence against Women, its Causes, and Consequences” Coomaraswamy (2000) stated: Traffickers fish in the stream of migration. They prey on the most vulnerable sections of the migrants to supply to the most exploitative, hazardous, and inhuman forms of work. Traffickers can also create a migration situation by capitalising on the lack of choice of the poor. This very powerlessness of the migrants creates a condition in which they can easily be duped, coerced, and exploited furthering their susceptibility to the continuance of exploitation (cited in Sharma, 2007).

Another popular framework suggested striking at the root cause as an effective intervention strategy. This has resulted into the debate surrounding the demand side and the supply side of trafficking. The demand side refers to the areas where the trafficked victims are exploited and exhausted, while the supply side enlists the vulnerable factors of trafficking. The demand and supply perspectives target the supply side factors of trafficking. It intends to combat trafficking by dealing with its underlying factors, which contribute to susceptibility to trafficking. It specifically aims to combat trafficking through interception and intervention at the first phase, before the trafficking occurs. It is an effective intervention strategy, far superior to the criminal justice system, as a criminal justice issue acts after the harm has already been done, while this model helps combat trafficking at the community level. The United Nations Office on Drugs and Crime (UNODC) suggests that trafficking in persons could be conceptualized in terms of the supply and demand, where the supply factors make people vulnerable, while demand

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factors create potential ground where this vulnerable cohort is exploited (Deane, 2010). Besides, industrialisation, rural to urban migration particularly of males, expanding commercial sex industry throughout the world, demand by employers and enterprises for the cheap labour of children and women, male attitudes and perceptions of women, male dominated value systems in society and women’s unequal and low socioeconomic status are noteworthy (Hameeda et al., 2010; Huda, 2006; Roby, 2005; Sen & Nair, 2004; Ruhi, 2003; Mishra, 2002). The supply factors include poverty and deprivation, the feminization of poverty, inadequate educational and employment opportunities, gender disparities in access to opportunities, and lack of social safety nets, economic disparities within and between countries, globalization and liberalization-induced population mobility, debt bondage, social conventions such as child marriages, polygamy, dowry and social stigma against single, divorced women and girls and those sexually abused, the pursuit of consumerism, the sale of women and children, the growth of transnational crime, the expansion of drug trafficking networks, weak political will and weak law enforcement mechanisms and measures to penalize offenders, and exploitation by corrupt law enforcers and officials (Hameeda et al., 2010; Pandey, 2010; Fayomi, 2009; Ghosh, 2009; Joffres et al., 2008; Roby, 2005; Sen & Nair, 2004; Bhattacharjea, 2003; Ruhi, 2003; Mishra, 2002). In the interplay of the demand and supply, impunity has been identified as the dominant theme behind trafficking. It has been found that trafficking laws are quite weak and combined with lack of political will, so traffickers manage to go scot free or get away with meagre punishment, which has rightly perpetuated this trade unbridled around the globe. Alison Phinney (2001) has conceptualized it as a “trafficking triangle”, referring to the space created by the demand, supply and impunity with which trafficking occurs. She states: Trafficking is driven by demand in the sex industry, fuelled by individuals who are denied equal rights and opportunities for education and economic advancement and perpetuated by traffickers who are able to exploit human misfortune with near impunity. Insufficient or inadequate laws, poor enforcement, ineffective penalties, minimal chances of prosecution, the relatively low risks involved, corruption and complacency, the invisibility of the issue, the failure of governments to implement policies and provide adequate services for victims–all play a role in perpetuating trafficking (Sen & Nair, 2004).

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To conclude, amidst the interplay of demand factors which create potential market for the trafficked victims and the supply factors delineated by the “vulnerability”, the impunity i.e. the safeguards extended by weak legislations, corruption, and political indifference has perpetuated the trafficking for sex trade.

Trafficking as a Transnational Organized Crime2 Transnational organized crime (TOC) involves the planning and execution of illicit business ventures by groups or networks of individuals working in more than one country. According to the 1999 Draft Convention against TOC, an organized criminal group may be defined as “a structured group of three or more persons existing for a period of time and having the aim of committing a serious crime in order to directly, or indirectly obtain a financial or other material benefit” (Truong, 2001). There are five popular models of trafficking operations existing in different areas. Each model is an ideal type associated with a different national group arising in a local historical context and reflecting a geographical identity and the market forces that drive the trade (Shelley, 2003). These models may not be comprehensive but provide insights into the dominant pattern operating in various regions. The supermarket model is prevalent between Mexico and United States of America (USA). The trafficking is primarily for labour rather than for sex. It is marked by high volume and low cost of trafficking and profit is higher per individual. This trade may require multiple attempts: 1.8 million individuals were arrested on borders in the year 2000 (Shelley, 2003). Traffickers employ dangerous means for transportation, resulting in high fatalities among immigrants. Here, trafficking takes place in complicity with other elements of the economy, linked to illicit business, corruption and the arms and drugs trades. Recently, the costs have amplified with increased border security in the Mexico-USA borders (Shelley, 2010). The natural resource model is devoted exclusively to the trafficking of women. In this game, women are treated just like any natural commodity such as timber or fur. It is directed towards short-term profits with little concern for the maintenance of supply or the long-term durability of the business. This model does not maximize profits and profits are not repatriated or used for development. Instead, it is disposed of towards conspicuous consumption or is sometimes used to purchase other

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commodities with a potential for rapid turnover. British law enforcement found that the profits from trade in women were used to buy rubber boots for sale in Ukraine or cars for sale in the Baltic region (Shelley, 2010). Most significant human rights violations recur in this kind of game as the traffickers have little interest in harvesting long term profits from the victims. The trade and development model is frequently prevalent in Chinese context. It is largely applicable to the smuggling of men, nonetheless, it also involves the trafficking of women who represent as much as ten per cent of the total volume (Shelley, 2003). Chinese and Thai trafficking crime syndicates run these networks in an organized and integrated way from start to finish. These operations control smuggling at all stages from recruitment through debt bondage and eventually to an assignment in a brothel in order to secure long-term profits. There exist established networks that profit from this trade in human beings. For example, the Asian cruise case generated $60 million in profits (10% estimated from trafficking) in Washington DC and New York from the transport of the victims (Shelley, 2010). It is to be noted that money is laundered back to China for development. Much of the profit is repatriated and eventually leads to further entrepreneurship throughout Thailand and southern China (Shelley, 2003). Since, the traffickers are interested in securing long term profits from the victims, less significant human rights violations are involved. The pimp model is a localized model involving domestic trafficking in the USA, often of juveniles. There are small individual entrepreneurs who often work together as loose networks. It involves serious manipulation of victims through psychological tactics and drugs often from the late childhood to early teens. The Federal Bureau of Investigation (FBI) estimates that, on average, victims survive seven years in prostitution. It is marked by significant profits, as each girl controlled by a pimp may generate at least $1000 per night (Shelley, 2010). The profits generated are dissipated among the local groups. The West African model of trafficking is coterminous with the traditional slavery system where blacks were used as slaves in the USA for domestic purposes. Currently, it operates from Africa to Western Europe predominantly for sexual exploitation. Multifaceted crime groups are engaged in the trafficking operations. The unique feature of this model is its combination of criminal acts of trafficking with traditional practices

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such as voodoo. The complicity of the victims is often ensured through ritual oath taking using blood, fingernails and other body parts performed by a Juju priest. Reprisals for renegade victims range from madness to death. Such oath taking is effective in instilling fear into the victims and ensuring their allegiance and commitment to the “contract of agreement” obtained from such process (Fayomi, 2009; Torgoley, 2006; Aghatise, 2004; Truong, 2003). A study by the International Organization for Migration (IOM) noted that the Nigerian madam who receives the trafficked women and girls at the destination would threaten death by magic if the victims refused to cooperate (Adepoju, 2005).

Human Trafficking and Rights Perspective Trafficking, until recently, was viewed as a criminal law issue, targeting the perpetrators. According to this approach, the state used victims against the culprits and the victims received attention practically only to the extent they are relevant for law enforcement purposes (Rijken, 2009). Of late, it was realized in a growing number of countries that victims of trafficking are particularly vulnerable and that the ordinary protection mechanisms for victims and witnesses in criminal proceedings are not suited to provide these groups with adequate protection. Further, it was noticed that the protection mechanisms for the trafficked victims were generally available for as long as they cooperated with the judicial authorities in the criminal proceedings. The human rights perspectives grew as an improvement over the criminal law approach. A human rights approach upholds the victim of trafficking as a person whose rights have been violated contrary to the criminal justice approach which treats victims as the perpetrator of the crime (Adams, 2011). Trafficking is a grave violation of human rights. The human rights abuses are many, and occur at each step in the trafficking process (Jordan, 2002; Beyrer, 2001). Anne Gallagher described human rights violations as implicated in all aspects of trafficking, from the factors that contribute to vulnerability to trafficking, to the loss of civil and political rights (such as loss of liberty) during the trafficking process, to sometimes inadequate response of state parties in addressing the problem (for example, returning victims home to a situation where they are likely to be re-trafficked) (Jordan, 2002). A broad range of human rights takes place during trafficking, most notable being the violation of a person’s personal physical dignity, the right to personal freedom and security, and the principle of nondiscrimination (Rijken, 2009). The Charter of the World Health

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Organization holds that every woman, man, youth and child has the right to the “highest attainable standard” of physical and mental health, without discrimination of any kind.3 Thus, from the perspective of a trafficked person, one of the most serious violations is the denial of the right to health. Almost all international human rights instruments cover trafficking in their mandate. Trafficking in human beings has been prohibited in article 5 on slavery and forced labour of the Charter of Fundamental Rights of the European Union. Article 6 of the Convention on the Elimination of all Forms of Discrimination against Women explicitly states that states, “shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women” (Rijken, 2009). Certain collateral conventions are the Convention on the Elimination of All Forms of Discrimination against Women of 1979, the Convention on the Rights of the Child of 1989, the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography of 2000 (“Optional Protocol”) (Sen & Nair, 2004). In general, a human rights-based approach is said to be based on some core principles: universality and inalienability; indivisibility; interdependence and interrelatedness; non-discrimination and equality; participation and inclusion; accountability and the rule of law (Rijken, 2009). The human rights framework essentially makes the protection of the human rights central and encourages states to incorporate the protection of human rights of the victims in anti-trafficking interventions. Its major objective is to ensure that the human rights and dignity of trafficked persons and other groups vulnerable to trafficking are not undermined in its war against trafficking. It specifically stresses that the trafficked persons should not be detained, charged or prosecuted for status-related offences. Their right to freedom of movement should be respected by the state and other service organizations.

Trafficking as a Threat to Public Health or Public Health Perspective Human trafficking is a global public health problem (Crane and Moreno, 2011; Todres, 2011).Trafficked persons experience physical, sexual and emotional violence at the hands of traffickers, pimps, employers and others, and are prone to various workplace health risks and environmental

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hazards (Todres, 2011). Health can be affected throughout the trafficking process. The journey phase or the movement phase, when the victims is moved from one place to another, may be associated with the acquisition or transmission of illness or disease as a direct consequence of the journey (Gushulak & Macpherson, 2000). Transportation is another health risk factor for such groups. Trafficking being an illegal or a clandestine issue, the victims may be carried, concealed, or hidden in conveyances, goods, or cargo and transported across borders. Transportation of this kind may subject the trafficked individuals to a variety of injuries and illnesses depending upon the type and duration of the journey. Physical injuries or death can result from falling from the conveyance or exposure to cargo (Gushulak & Macpherson, 2000). Trafficked victims are exposed to a range of health infirmities at the destination. They are prone to unregulated, unsafe, and dangerous working conditions. The unofficial or illegal status of migrants often precludes the application or enforcement of labour or employment standards. These risks may include exposure to occupational injuries, chemicals, and other toxic materials or the effects of sustained work in substandard surroundings, the consequences of which may be injury or death (Gushulak & Macpherson, 2000). Apart from the physical threat, risks of detection, detention and judicial censure, physical and psychological stress give rise to host of psychological and mental issues in the victims (Zimmerman, Kiss & Hossain, 2009; Vlacho, 2005; Gushulak & Macpherson, 2000). Trafficking undermines public health by contributing to the spread of some other, less frequently mentioned diseases such as tuberculosis and scabies that are fostered by cruel working and living conditions (Vlacho, 2005). The health implications of trafficking extend not only to its victims, but also to those who come into contact with them, as victims become carriers and/or core transmitters of serious diseases (Eleni, 2011; Todres, 2011). Trafficked victims have limited accessibility to the public domain during their captivity, which further restricts their outreach. However, it has been found that by virtue of their position, health care providers are one of the few professionals trafficked persons are likely to interact during captivity (Dovydaitis, 2010). A study reported that 28 percent of trafficked women saw a health care professional while still in captivity. This suggests a serious missed opportunity for intervention. The health care professionals hence can prove to be potential resource to track a suspect trafficking victim and can effectively disburse physical and psychological care to victims even during incarceration. The expert assessment and interview

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skills can help in contributing to identification of victims in trafficking and thus calls for intervention by public health workers to combat trafficking. The public health approach to trafficking suggests that the governments should confront the problem of trafficking similarly to the health hazards such as smoking, community violence and highway fatalities. It seeks to identify and address the underlying causes of a particular public health issue confronting a population, with the goal of harm prevention or reduction. It suggests that approaching human trafficking from the public health perspective offers the prospect of addressing fundamental aspects of the problem, including its root causes (Todres, 2011). Likewise, traditional emphasis in public health on engaging all community stakeholders will add value at all stages in anti-trafficking efforts, from the drafting of relevant laws and policies to implementation of prevention programmes. Moreover, a public health approach will help increase our understanding of the dynamics of human trafficking and offer insights into its effective prevention, so that it is possible to develop strategies that will effectively account for the sufferings of millions of people and strengthening individuals’ and communities’ capacities to prevent human trafficking. The merits of combating trafficking through public health perspectives are more worthy of consideration than the legal perspectives. It is widely known that trafficking as a clandestine issue is not easily visible and there are no reliable estimates barring some assumptions or speculations. The absence of actual statistics makes policymaking or intervention difficult. The dearth of reliable data on human trafficking highlights the value of a public health emphasis on evidence-based research. Additionally, the prevention orientation of public health would significantly advance antitrafficking initiatives, which currently deal with the harm only after it occurs. It would help to reduce the vulnerability of individuals by focusing on the issues that make many individuals vulnerable to exploitation. Further, this approach aims at combating trafficking through targeting the root causes i.e. the factors that increase susceptibility to trafficking in the first instance. This approach also goes beyond the criminal law’s narrow focus on the state–perpetrator dynamic to address community and population-based impacts. It seeks to combat trafficking through interventions at the community level by involving all the relevant stakeholders.

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Developing an Alternative Framework: The Family-Centric Approach Against the backdrop of the above findings, the present paper would bring to light a novel framework, hitherto neglected in the trafficking debate. HT is an intricate phenomenon involving range of activities and a multitude of actors and instigated by “vulnerability”4 at its root. It is to be noted that HT is not the product of external elements, its origins essentially lying in the family and the community of the individual. However, the family and community as an essential component of vulnerability and its role in the reintegration of the victims have been undermined. There exists limited literature on the role of families in trafficking at the initial stage and rehabilitation and reintegration after trafficking. Family is often described as a part of general pattern of vulnerability, for example, poverty, domestic violence, child abuse; alcohol abuse, single motherhood etc. act as a trigger and contributor to trafficking (Brunovskis & Surtees, 2012). Being the building block of the society, family exercises a crucial role in the socialization of an individual. The basic protective mechanism supplied by family is dramatically influential in the return and reintegration of the individual. It exercises two functions: minimizing the vulnerability in the first place, and providing support after trafficking. Reintegration is largely dependent on the familial relations as well as the larger social environment, which is able to support and cope with victims of trafficking (Derks, 1998). Research shows that trafficked persons who have family and friends generally choose, on return, to seek assistance from their own network (Brunovskis & Surtees, 2012; 2007). Further, lack of normal family relations affects negatively the process of rehabilitation and reintegration of victims. If a victim comes back to a family but nobody is waiting for his/her, or if she or he is very lonesome and nobody takes care of her/him, it is much more difficult to carry out rehabilitation and reintegration (Fomina, 2006). The home environment exercises a crucial influence in decisions about receiving assistance and support services after trafficking. In the case of dependants with care needs at home and family, the victims have been found to decline services to provide for family members, as the programmes do not include provision for the victim’s family members (Brunovskis & Surtees, 2012). In many cases, where the victims return without any funds to support the family, disappointment and friction between family members may arise (Brunovskis & Surtees, 2012;

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Brunovskis & Surtees, 2007; Derks, 1998). Sometimes families are sceptical of assistance and services provided and this interrupts the rehabilitation (Brunovskis & Surtees, 2007). In one instance a woman was forced to discontinue the programme as her husband was quite cynical and had reservations about the benevolent assistance offered. Likewise, another girl reported that although her family did not dissuade her they were unhappy about her accepting help (Brunovskis & Surtees, 2007). Besides, families are found to decline the reunification of their surviving members, under the influence of the community. In a study on sex slaves in South Asia, Brown discovered that the trafficked women are perceived as destroyers of social prestige and identity (Chaulagai, 2009). Counselling can be an effective intervention strategy. The victims’ parents must also be counselled about the needs of the victims through the rehabilitation and reintegration programmes. It has been found that if at their destination people lack knowledge of what has happened or of where the victims have been, victims’ stressed behaviours can be confusing and hurtful and may lead to additional problems and tensions (Brunovskis & Surtees, 2012). Thus to conclude, family can play a crucial role in the successful reintegration of trafficking victims, but may also prove to be a constraint, in the absence of sympathetic relationship amongst its members. Family must be given adequate attention in the rehabilitation schemes and policies. Undermining the role of family in reintegration interventions may jeopardize the reunification process.

Conclusion The paper concludes with a brief overview of extant interventions. The earliest attempt to stem trafficking arose from criminal justice system and hence evolved the criminal justice system to trafficking. However, it failed to yield effective results as it paid overriding concern to the prosecution of the culprits and victim protection was not given adequate attention thereby leading to further victimization of the victims by the states. Until recently, it basically followed a three-pronged framework focusing on the “three Ps”– prosecution, protection and prevention – prosecuting traffickers, protecting trafficked persons and preventing trafficking. In practice, however, these responses emphasise the prosecution of traffickers and, to a lesser extent, the protection of their victims. Thus, of late, the legal jurisprudence approach to trafficking has given way to a victim-centred approach to trafficking (now the “three Rs”–rescue, rehabilitation and reintegration) (Regmi, 2006). The three Rs model has brought a paradigm

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shift in the state response and has promoted a victim-centric response focusing on the welfare and protection of the victims. In order to prevent their further victimisation and criminalisation, it is recommended that victims of trafficking be treated in accordance with international standards; that they be provided a wide range of psychological, legal, medical and social assistance in disengagement from their slave-masters; and that they are aided in returning home and reintegrating into their community. The human rights framework to trafficking has an edge over the criminal law approach. First, it provides better understanding of the victims’ perspective, treating them as victims rather than as criminals responsible for violating national immigration laws and regulations, and promotes a victim-centred approach. The victim-centred approach helps to overcome the frustration and exasperation of the victims due to trafficking and empowers victims by restoring their dignity and self-worth. Further, the human rights framework probes more deeply into the complex regime of human trafficking and may help find legal, political, economic, and social solutions to combat trafficking. Modern trafficking operations are analogous to trade enterprises reflecting the local trade patterns. However, there cannot be an ideal universal model, in view of the existence of widespread variation between and within the regions. It has been found that the intensity of the human rights violation associated with each business models is distinct (Shelley, 2003). The supermarket model results in numerous violations of human rights including fatalities of those smuggled. The natural resource model involves grave human rights violation, as its primary objective is profit maximization with little concern over the durability of the enterprise, as against the trade and development model where smugglers and traffickers have an interest in long-term profits from victims. The public health approach can be another popular model of intervention. Trafficked persons must be given access to comprehensive, sustained, gender and age and culture-appropriate health care focusing on achieving overall physical, mental and social well-being. Health care should be provided by trained professionals in a secure and caring environment, on a voluntary basis and in conformity with professional codes of ethics. Minimum standards should be established for the health care that is offered to trafficked victims. These standards should be developed through partnership between government, inter-governmental and non-governmental

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organizations and academic institutions and should be based on comprehensive evidence-based research and best practices. Human trafficking as modern-day slavery is more than a legal or criminal justice issue. Multiple actors and numerous stakeholders are involved in various stages of trafficking. Trafficking being a transnational crime, the money laundered runs often from one continent to another, profits passing through large syndicates to small loosely organised local goons. Further, trafficking has different repercussions for the state, individual and community. Thus, a unilinear approach to combat trafficking is not sufficient. An effective intervention requires a multidimensional approach to address the phenomenon, which could target its perpetrators, protect the victims and address its root causes by involving all the stakeholders especially the families and the community, from which the vulnerability originates and where it must end.

Notes 1

Devadasis were women and girls dedicated through marriage to different gods and goddesses, a system that originated in South India around the sixth century AD (Orchard, 2007). 2 Here in this section the focus is only on trafficking across national borders. 3 Health and human trafficking. (2003). Retrieved 13 March 2011 from http://iom.org.za 4 Vulnerability refers to that section of a population, in a socio-economic context of severe deprivation, which is at risk because of its inability to cope with the pressure of life and living. It refers to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved (Jordan, 2002, p.8).

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Lackzo, F. and Gramegna, M.A.(2003). “Developing Better Indicators of Human Trafficking”, Brown Journal of World Affairs, x (1), 179–194. Mishra, M. (2002). “Trafficking of Women in South Asia: A Sketch”, Contributions to Nepalese Studies, 29 (1): 129–141. Mohiuddin, Y. (2006). Human Trafficking: Slavery in the 21stt Century. Pretoria: Fotim. Molland, S. (2005). “Human Trafficking and Poverty Reduction: Two Sides of the Same Coin”, Juth Pakai (4): 27–37. Morehouse, C. (2009). “Introduction” in Combating Trafficking: Policy Gaps and Hidden Political Agendas in the USA and Germany. Heidelberg: V S Research. Orchard, T.R. (2007). “Girl, Woman, Lover, Mother: Towards a New Understanding of Child Prostitution among Young Devadasis in Rural Karnataka, India”, Social Science & Medicine 64: 2379–2390. Pandey, S.P. (2010). A Study of Children Dependent on Prostitutes in Selected Areas of Uttar Pradesh. Lucknow: Department of Women and Children, Pt. G. B. Pant Institute of Studies in Rural Development. Ray, N. (2006). “Looking at Trafficking Through a New Lens”, Cardozo Journal of Law & Gender 12: 909–927. Regmi, K. (2006). “Trafficking into Prostitution in India and the Indian Judiciary”, Intercultural Human Rights Law Review 1: 373–406. Rijken, C. (2009). “A Human Rights based Approach to Trafficking in Human Beings”, Security & Human Rights 20: 212–222. Roby, J.L. (2005). “Women and Children in the Global Sex Trade: Towards More Effective Policy”, International Social Work 48 (2): 136–147. Ruhi, R.A. (2003). “Human Trafficking in Bangladesh: An Overview”, Asian Affairs 25 (4): 45–56. Sen, S., and Nair, P.M. (2004). A Report on Trafficking in Women and Children in India 2002–2003. NHRC-UNIFEM-ISS Project. New Delhi: Institute of Social Sciences. Sharma, R. (2007). “Trafficking in Women and Children in India: A Situational Analysis in Maharashtra”, International Journal of Criminal Justice Sciences 2 (2): 85–100. Shelley, L. (2003). “Trafficking in Women: The Business Model Approach”, Brown Journal of World Affairs X (1): 119–131. —. (2010). Human Trafficking: A Global Perspective. New York and Cambridge: Cambridge University Press. Todres, J. (2011). “Moving Upstream: The Merits of a Public Health Law Approach to Human Trafficking”, Georgia State University College of Law, Legal Studies Research Paper No. 2011–02, 89 (2): 447–507.

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Truong, T.-D. (2001).“Human Trafficking and Organised Crime”, Working Paper 339. Hague: The Institute of Social Studies. —. (2003). “Gender, Exploitative Migration, and the Sex Industry: A European Perspective”, Gender Technology and Development, 7 (1): 31–52. Vlacho, M. (2005). “Trafficking in Humans: The Slavery of Our Age”, Connections: The Quarterly Journal 4 (4): 1–16. Zimmerman, C., Kiss, L. and Hossain, M. (2009). “Trafficking in Persons: A Health Concern”, Ciencia and Coletiva 14 (4); 1029–1035.

CHAPTER FOUR TERRORISM: A CASE OF VIOLATION OF HUMAN RIGHTS VED PAL SINGH DESWAL

Abstract Terrorism has been a dark feature of human behaviour. It has affected adversely the peace of the world. Great leaders have been assassinated; groups and individuals have committed acts of incredible violence. The objectives of these terrorists (or antisocial elements) are to use force to target innocent people, to instil fear in the public and to work towards bringing about political change. The main factors/causes of terrorism are manifold. They include psychological, economic, political, religious and cultural factors. To deal with terrorist activities, the Parliament of India has passed various acts. Making laws/rules/regulations does not mean that things will be all right. They are required to be followed in letter and spirit by the citizens. For that we need to join with strong will power together with NGOs and other enforcement agencies to curb the problem of terrorism as it is immensely affecting human rights across the world. We want to be here to express our compassion and solidarity for all the victims of terrorist acts who are attacked randomly and without respite throughout the world. We are here to express our indignation at the cowardice of terrorism, condemn it firmly and categorically, combat it and see that the guilty are punished. —The President of the United Nations General Assembly The attacks targeted more than one single country; they were an assault on humanity itself, and on the universal values of peace and dignity that the United Nations was created to promote and defend. —United Nations Deputy Secretary-General of the United Nations

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Introduction Terrorism seems to have become endemic in modern society.1 India has been facing the menace of terrorism right from its inception. For last two decades, the world has been witnessing widespread violence and terrorism at both national and international levels. Many times, the efforts of governments and international organizations such as the United Nations and other apex bodies and humanitarian organizations have not brought sufficient and needed results. In Third World countries, violence has become the order of the day. Terrorism and especially terrorism by the army has become a menace to civil society. Millions of people have lost their lives, homes and properties due to cross-border terrorism. In parts of Asia, terrorism has spoilt the very nature of human existence and society. Pakistan has resorted to the path of aggression against India since 1947 in different forms. The problem of Jammu Kashmir is one glaring example.2 Terrorism came on the international scene after 11 September 2001.3 The entire nation felt humiliated with the utter failure of the American Federal Bureau of Investigation to prevent such a tragedy. A similar incident took place back home in India also.4

Research Design The paper attempts to analyse the objectives of terrorists (or anti-social elements): (a) What is the motive behind the terrorist acts? (b) What is the impact of terrorist acts on the sovereignty of a nation? (c) What are the consequences of these acts on the citizens? (d) What are the safeguards against the terrorist acts at national and international levels? (e) What are the preventive measures to curb terrorism?

Research Methodology The paper uses various research data with the help of secondary sources such as books, newspapers and journals. Internet sources have also been sought to corroborate the analysis with current data.

Definitions of Terrorism Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi) clandestine individuals, groups or states, for

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idiosyncratic, criminal or political reasons. Unlike assassination, the direct targets of the violence are not the main objectives. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population and serve as message generators. Threat- and violence-based communication processes between terrorist (organization), (imperilled) victims, and main targets are used to manipulate the main target audience(s), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion or propaganda is primarily sought. On 17 March 2005 a UN panel described terrorism as any act “intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act”. Criminal acts are intended or calculated to provoke a state of terror in the general public.5 However, the problem of these definitions with respect to India is that terrorists act under the guise of “freedom struggle”, “militancy”, “insurgency” and “Naxalism” and direct their activities against the state and the innocents. From this formulation, terrorism and anti-terrorism law become comprehensive phenomena comprising the state, terrorists, their demands, society, terror effects, innocent victims and most importantly the human rights of the victims and the terrorists.

New Dimensions of Terrorism Terrorism, then, extends over a wide canvas encompassing religion, socioeconomic systems, power politics and many related areas. The internal dynamics and external linkages of terrorism have made it a formidable challenge not only to national security but also to world peace. It has, over the years, acquired several dimensions and has become a highly complex phenomenon. There could be fundamental terrorism which is an explosive combination of fundamentalist creed and terrorist violence that is sweeping across several countries. Narco-terrorism represents yet another sinister dimension of terrorism. There are documented instances of terrorists and insurgent groups trafficking in outlawed drugs to finance their operations.6 Terrorism is a form of political action.7 Ideologies associated with nationalism, revolution, religion and defence of the status quo have all inspired terrorism. We have to look at the opportunities, resources, intentions and perceptions of the actors for whom terrorism is

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useful to intimidate opponents, communicate goals, advertise the cause, recruit followers and mobilize popular support. Explaining terrorism by reference to background conditions (social, economic, demographic, political or cultural) is insufficient at best and wrong at worst. “Root causes” may in fact influence the subsequent trajectory of terrorism more than its onset since they determine the extent of social support for violence by justifying grievances. Historical contingencies and the perceptions and intentions of small radicalized political groups are most important in exploring terrorism. Terrorism is not a monolithic phenomenon but quite diverse not only in ideology but in its organization and inception also.8 Terrorist groups claim that their recourse to terrorism is for self-determination and national liberation.9

Safeguards against Terrorism The Office of the High Commissioner for Human Rights (OHCHR) condemns terrorism unequivocally and recognizes the duty of states to protect those living within their jurisdictions from terrorism. The OHCHR has placed a priority duty on protection of human rights, notably the right to life and the question of protecting human rights in the context of counter-terrorism measures. It has been emphasized that human rights norms must be rigorously respected by all, even in states of emergency.10 The resolution11 created the Counter-Terrorism Committee (CTC) to monitor action on this issue and to receive reports from states on measures taken. At national level, India has had its fair share of terror attacks and it seems we, as a nation, have learnt to live with it. Serial blasts in local trains in Mumbai and crowded market places in Delhi shook the nation. But the emergence of terror in cities like Bangalore and Hyderabad, known as the IT and high tech hubs, has come as an eye opener. The newer generation of terrorists is home grown, intelligent, well educated and sophisticated. Knowing that India is an emerging global economy, they target financial centres and centres of economic significance which shows their meticulous planning and management. These are not the works of amateurs but of trained and professional recruits. For instance, bombing the local trains in Mumbai which are called the lifeline of the city and crowded commercial market places in Delhi have shown that the terrorists do their homework well and know where maximum damage can be incurred.

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In the last two decades, India has witnessed the emergence of five different kinds of terrorism: cross-border terrorism in Jammu and Kashmir, terrorism in Punjab, insurgency in the north-east, Naxalism and Maoism, and LTTE conflict. The most important and strategically significant terrorism is the crossborder infiltration in Jammu and Kashmir state from Pakistan-Occupied Kashmir or directly from Pakistan. Another front where fortunately the state succeeded in combating terrorism was in Punjab in the 1980s. However, the Indian state is still finding it difficult to fight terrorism on the remaining three fronts, viz., insurgency in the states of Assam and Manipur and the threat to territorial integrity in Arunachal Pradesh from China. The latest to join these terrorist activities is the rise of Naxalites and Maoists in the very heart of the country, having their influence in Uttar Pradesh, Bihar, Jharkhand, Orissa (now Odisha), Madhya Pradesh, Chhatisgarh and Andhra Pradesh. However, the LTTE (Liberation Tigers of Tamil Eelam) conflict in Sri Lanka seems to have been resolved. The Government of India has spent around Rs. 45,000 crores on relief and rehabilitation and paramilitary forces since independence. Still, the number of civilians killed in the terror attacks has been far more than the total number of deaths of the security personnel in the four conventional wars fought, including the Kargil War of 1999. India’s political thinkers, academics and media need to examine rationally all the steps being taken to see how far the terrorist acts impinge on human rights. In the name of challenging terrorism from across the borders, how far are we fanning communalism at home? How far are we creating an environment of intolerance by exhorting people against one religion or the other and calling upon the people to be vigilant against one minority or the other? These are the questions that need serious consideration. The socio-economic and cultural emancipation of the people at the grass root level achieved through well-planned developmental planning process with democratic norms and principles would remove the local support base of the terrorists and it is a proven fact that terrorists cannot function without a local base and also without misguided support from the locals. There is a need to establish mechanisms for strengthening collaboration among governments and competent national authorities and to promote the exchange of information, particularly on the possible exploitation of modern technology for terrorist purposes. Attention should also be

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focussed on signing bilateral and multilateral agreements in combating and preventing terrorist acts with particular emphasis on the issue of extradition.

Role of the United Nations in Combating Terrorism In order to control terrorist activities across the globe, various steps have been taken. They are as follows: (a) The Universal Declaration of Human Rights (b) Civil and political rights (c) Economic and social rights (d) The American Convention on Human Rights (e) Enactment of National Human Rights Commission Act, 1993. Kofi Annan, Secretary General of the UN, set out the main elements of a “principled, comprehensive strategy” to combat terrorism and highlighted the role of the United Nations: x To dissuade disaffected groups from choosing terrorism as a tactic to achieve their goals x To deny the terrorists the means to carry out their attacks x To deter states from supporting terrorists x To develop state capacity to prevent terrorism, and x To defend human rights in the struggle against terrorism. “The United Nations has already, for many years, been playing a crucial role in all these areas, and has achieved important success. But we need to do more, and we must do more”, stated the Secretary-General.12 In this resolution the United Nations acted under Chapter VII of its charter, which gave the Security Council authority to order states to carry out measures decided upon by the Council.13 It reiterated that terrorist acts constitute a threat to international peace and security. It also announced a series of measures for the legal suppression of terrorism and cooperation between states in security, intelligence, criminal investigation and proceedings with regard to terrorism. The UN also set up the Committee on CounterTerrorism. The US-led war on terror from the beginning defied the framework and parameters of this resolution and all subsequent actions by the UN show a debilitating attempt to adjust to or compromise with the effects of that war.

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It has created difficulties for the UN in defining terrorism. In the General Assembly the Secretary-General stated that “the moral authority of the UN and its strength in countering terrorism have been hampered by the inability of member states to agree on a comprehensive convention that includes a definition”. The Secretary-General very easily disposed of the issue of “state terrorism” which many think has to be dealt with: “It is time to set aside debate on so-called state terrorism. The use of force by states is already thoroughly regulated under international law.” Unwittingly, the Secretary-General seems to give credence to the argument of John Bolton, the US Ambassador to the United Nations, who in a letter to other envoys said that any definition of what constitutes a terrorist act should exclude “military activities that are appropriately governed by international humanitarian law”. In other words, limits should be placed on the degree to which government actions such as bombing civilians should be considered terrorism.14 In a way the Secretary-General may be right that state terrorism is passé because we are now confronting what may be properly called “empire terrorism”. Bolton is not referring to the old state terrorism. It is about the precept and practice of “regime change”, “occupation” and “preventive war” all in the name of fighting terrorism. There is no definition of terrorism in the outcome document of the Millennium Summit of mid-September 2005. It ended up with a milk-toast condemnation of “terrorism in all its forms and manifestations, committed by whomever, wherever and for whatever purposes, as it constitutes one of the most serious threats to international peace and security”. Clare Short, former UK Secretary of State for International Development, put it well: In particular those who advocate a new convention on terrorism fail to understand how deeply unhappy people are about the hypocrisy of those who use state power unlawfully and cause massive loss of civilian life – and then expect all countries to sign up to a definition of terrorism that fails to acknowledge the right to resist occupation. 15

The definitional struggle is no longer (only) about state terrorism and liberation struggle: it is about invasion and occupation in the name of war on terror and resistance.

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Terrorism and Human Rights Human rights are those rights which people are entitled by virtue of their humanity. Human rights mean the rights relating to life, liberty, equality of the individual guarantee provided by the Constitution or embodied in the International Covenants and enforceable by the Courts of Law.16 Human rights are high-priority norms. Maurice Cranston held that human rights are matters of “paramount importance” and their violation is “a grave affront to justice”.17 These rights are essential for all the individuals as they are consonant with their freedom and dignity and are conducive to physical, moral, social and spiritual welfare. 18 The “grave challenge to rule of law and human rights” posed by counterterrorism measures was clearly stated in the Berlin Declaration of the International Commission of Jurists, August 2004. “Since September 2001 many states have adopted new counter-terrorism measures that are in breach of their international obligations. In some countries, the postSeptember climate of insecurity has been exploited to justify long-standing human rights violations carried out in the name of national security.” The declaration pointed out that a pervasive security-oriented discourse promotes the sacrifice of fundamental human rights and freedoms in the name of eradicating terrorism.19 The Secretary-General has been unequivocal in the affirmation of defence of human rights. On 18 January 2002 he said: We should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights. On the contrary I believe that in the long term we shall find that human rights, along with democracy and social justice are one of the best prophylactics against terrorism.

Yet, a resolution on counter-terrorism adopted unanimously by the Security Council on 14 September 2005 echoes measures enacted in Britain since the London bombings of 7 July 200520 and in the United States after 11 September 2001. The resolution was adopted at head-ofstate level during the UN World Summit. The resolution, sponsored by Britain, calls on all governments to adopt laws that prohibit people from inciting others to commit terrorist acts and to deny safe havens to anyone seriously considered guilty of such conduct. It also calls upon all countries “to counter violent extremist ideologies,

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including steps to prevent the subversion of educational, cultural, and religious institutions by terrorists and their supporters”. Human Rights Watch (HRW) warns that the new resolution will give governments a pretext for suppressing peaceful expression. “Those who incite others to commit terrorism must be prosecuted”, said Kenneth Roth, Executive Director of HRW, “but the resolution’s sponsors have made it easy for abusive governments to invoke the resolution to target peaceful political opponents, impose censorship and close mosques, churches and schools.”21 “By encouraging the prevention of incitement, the resolution opens a loophole in free speech through which an army of censors could drive through”, Roth stressed. President Kostas Karamanlis of Greece, who voted in favour of the resolution, also cautioned that “it should not affect established principles relating to freedom of expression”. Associated Press reported from Colombo by citing a Maldives Court order sentencing a human rights activist to 10 years in prison for instigating terrorism. Jennifer Latheef was sent to jail after being identified as one of the “instigators of pro-democracy riots” in September 2003 in the capital, Male. This is just one example of violation of human rights in the name of counter-terrorism. Human rights violations by the state and its agencies occur in various settings: during cordon and search operations, during encounters or opening ¿re in crowded areas, during detention and interrogation. A number of factors are responsible for such violations. These include: x Lack of transparency and accountability, inadequate training and education among security personnel in observing human rights; x Lack of scienti¿c investigation skills and tools among the police; x De¿cient information to, and investigation by, the police; and x High levels of stress. The Observer Research Foundation (ORF) pursues these goals by providing informed and productive inputs, in-depth research and stimulating discussions.22 The Foundation is supported in its mission by a crosssection of India’s leading public ¿gures, academics and business leaders.23

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Though civil society does not object to the killing of perpetrators of terrorist acts, it gets enormously disturbed and concerned when innocent persons fall victim to either terrorist acts or excesses by the security forces. On many occasions, concerned citizens from different walks of life have disapproved, and unequivocally condemned, the agencies of the state employing terrorism as a tool. In this context, the Supreme Court of India noted in D.K. Basu vs. State of West Bengal that: State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to terrorism: that would only be bad for the state, the community and above all the Rule of Law. The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto them.

A signi¿cant contributing factor for such an avoidable state of affairs is the lack of preventive intelligence, resulting in ruthless post-event investigation by the police. Intelligence does not come forth easily and naturally from the people or the community because of a crisis of con¿dence in the agencies of the state or for fear of being victimised. Therefore, it is of vital importance for the state to carry with it the affected communities and make them partners, rather than let them be isolated or detached in the ¿ght against terrorism. The terrorists would not be able to operate for long without support from the people. The state, therefore, can wean away or win over the people through a proactive, concerted effort, isolate terrorists and defeat them comprehensively. In this effort by the state, the intelligentsia, media, especially the electronic media, and nongovernmental organizations can play a signi¿cant and useful role. They would not only encourage people’s con¿dence about terrorists but also act as a bridge between the community and the state in effectively combating terrorism. It is extremely important to train and educate the security forces, police, paramilitary and the army about the importance of observing the human rights of the people. The training and education should focus especially on the lower rung of the security forces, which, in large numbers, comes into contact with the community. Unfortunately, for a long time after independence, the security forces, especially the police, have operated largely as a force of the colonial past. The army, increasingly getting involved in civilian conÀicts, is trained to ¿ght enemy soldiers and does not deal with its fellow countrymen and women. In the process, there have been many allegations of human rights violations by the army. Therefore,

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it would be in the interest of the country, the people and the professional interest of the army itself that the army be deployed in the role for which it has been created rather than perform internal security duties. At the same time, it is imperative to look again at the judicial procedures for prosecuting those accused of being involved in terrorist activities. Speedy trial is an important objective to ensure timely punishment of the guilty and to be sure the innocent are not left awaiting justice.

Conclusion The first 50 years of the human rights movement got mired in the cold war politics. With the disintegration of the Soviet Union and the end of cold war politics, international politics witnessed growth and improvement in human rights laws and institutions across the world, particularly from the 1990s onwards. However, since 2001 the problem of terrorism has taken the central place in academic and political discourse, especially in view of its targeting humanity and violating the human rights of citizens. Success in promoting human rights requires hard-to-achieve success in other areas including building more capable, responsive, efficient and non-corrupt governments, dealing with failed states, increasing economic productivity (to pay for the protection and services that human rights require), improving the power and status of women, improving education and managing international tensions and conflicts. Establishing human rights worldwide is a project for the centuries. The violations by terrorists, however, receive little attention, especially because of the mortal fear of violent retribution and victimization.24 Still, there are some grounds for optimism. Human rights are more widely accepted than they have ever been. They have become part of the currency of international relations, and most countries participate in the human rights system. Treaty arrangements help in encouraging and pressuring countries to deal with their human rights problems. The human rights project continues and has not failed. In adopting measures aimed at suppressing acts of terrorism, states must adhere strictly to the rule of law, including the core principles of criminal and international law and the specific standards and obligations of international human rights law, refugee law and, where applicable, humanitarian law. These principles, standards and obligations define the boundaries of permissible and legitimate state action against terrorism. The odious nature of terrorist acts cannot serve as a basis or pretext for states to disregard their international obligations, in particular in the protection of fundamental human rights.

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There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights. On the contrary, safeguarding persons from terrorist acts and respecting human rights both form part of a seamless web of protection incumbent upon the state. Contemporary human rights and humanitarian laws allow states a reasonably wide margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations. The primary objectives of an effective counter-terrorism effort are to safeguard human rights, strengthen democracy and uphold the rule of law. The response to terrorism can neither be selective nor lead to unleashing a wave of unbridled repression, which would, as a consequence, enormously infringe upon the rights of the citizens. Thus, it is critical to strike a just balance between ensuring the security and integrity of the country and safeguarding the human rights of the people. Indeed, there cannot be any compromise in the effort to root out terrorism from the country. The state is expected to, and should, take all possible legal, security, social and economic measures to neutralize terrorist groups. What, however, needs to be kept in mind is that in India, the largest democracy of the world, the human rights of citizens, which are non-alienable and are guaranteed by the Constitution, cannot be allowed to be sacri¿ced. Importantly, Article 21 (protection of life and personal liberty, or right to life)25, Article 20 (protection in respect of conviction for offences, or protection against testimonial compulsion) of the Constitution cannot be suspended even during an emergency. Therefore, the counter-terrorism efforts of the state should, under all circumstances, uphold the rule of law, observe human rights and follow due process. Failure on the part of the state to do so would only alienate large sections of the population and unwittingly help the terrorists. It is equally important to bear in mind that it is the terrorists and terrorist groups which are always guilty of gross human rights abuses, and not the security forces (barring exceptional cases) which are often maligned by the gullible media and motivated activists. The apprehension and interrogation of terror suspects must also be done in a thoroughly professional manner, with the provision of adequate judicial scrutiny as mandated in the Code of Criminal Procedure. This is required because in recent counter-terrorist operations, there have been several reports of arbitrary arrests of individuals belonging to certain communities and the concoction of evidence — such as the production of similarly worded confession

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statements by detained suspects in different places. The proposal for the admissibility of confessional statements made before the police is also problematic since there are fears that such a change will incentivize torture and coercive interrogation by investigative agencies in order to seek convictions.26 International and national efforts aimed at the realization of civil, cultural, economic, political and social rights of all persons without discrimination, and addressing political, economic and social exclusion, are themselves essential tools in preventing and eradicating terrorism. Now the time has come to join our hands at international level along with Non Governmental Organisations and media to eradicate this menace. In the twenty-first century we need to maintain the principles of humanism and civilization. In order to protect these human rights we need to perform our duties provided by the constitution of the respective states within permissible limits. No right can be absolute; hence we need to always remember the limitations of fundamental rights.

Some Suggestions to Protect Human Rights Ɣ Follow procedures, adhere to the rule of law and function within the ambit of existing laws while combating terrorism. Ɣ Ensure transparency and accountability for the actions carried out by the various agencies of state while responding to terrorism. Ɣ Improve intelligence gathering procedures, systems and mechanisms. Ɣ Continuously educate and train all the agencies of the state, especially the security forces (and especially those on lower rungs) in the observance of human rights. Ɣ Human rights should be an integral part of the syllabus at all institutions training police, paramilitary and army men and officers. Ɣ The officer cadre should be given periodic refresher courses relating to policies pertaining to terrorism and human rights and the ways to maintain balance. Ɣ Special Human Rights Officers should be deputed to army, paramilitary and police units deployed in conÀict zones. Ɣ Institute mechanisms and procedures to reduce stress among the security forces working in areas affected by terrorism/insurgency. Ɣ Ensure speedy, fair trial of those accused of being involved in terrorist activities. Revamp judicial processes and procedures. The number of fast track courts should be increased.

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Ɣ The Union Home Ministry should issue instructions to the police to take utmost care while charging persons in terrorist cases. Ɣ Severe punishment/reprimand should be given to those violating the Home Ministry instructions. Ɣ Do not alienate the people, but make them partners in the ¿ght against terrorism. Ɣ Establish police–citizen coordination cells at selected vulnerable conÀict zones. Involve resident welfare associations in the initiative. Ɣ The intelligentsia, media and non-governmental organizations should be encouraged to create con¿dence in the minds of the people that terrorism can be defeated and also function as a bridge between the state and the community. Ɣ Interest groups must be made to desist from involving in agendadriven propaganda on human rights violations.

Notes 1 Stern, Jessica (1999). The Ultimate Terrorist. Cambridge: Cambridge University Press: 11. 2 Maheswari, Anil (1989). “Terrorists Create Panic in the Valley”, The Hindustan Times, New Delhi, 19 August. 3 On 11 September 2001 a terrorist activity took place at the bombings of the twin towers of World Trade Centre and the Pentagon. Since it was the first time such an attack was experienced in the United States, the entire country, including the President George W. Bush, was shaken to the core. 4 The terrorists targeted Parliament on 13 December 2001. It was the first time that such a serious attack was mounted on the very symbol of the Republic of India. However, this provided the government with a more powerful argument to come up with more stringent and streamlined anti-terror laws in the country. 5 A group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic and religious or any other nature that may be invoked to justify them. 6 Cyberspace is another area where the terrorists have stamped their presence. Several groups have their own websites through which they launch their propaganda. They also try to cripple the economies of countries by hacking the accounts and security systems of central banks and illegally transferring money outwards. Then there could be two more types of terrorism – eco-terrorism and developmental terrorism – and one should not forget the silent terrorism of illiteracy, poverty and hunger. It is worth mentioning the latter forms of terrorism as at the micro level it is these that have a direct effect on the population and a direct link with infringement of human rights of millions of people not only in

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India, but worldwide. The worst hit is the continent of Africa, once famously called the “Dark Continent”; this epithet seems to be appropriate still, for there are territorial conflicts accompanied by the frequent local level famines hitting the sub-Saharan region of the continent. 7 It cannot be taken out of specific historical context or treated as a generic phenomenon. It is a strategy rooted in political discontent used in the service of many different beliefs and doctrines that help legitimize and sustain violence. 8 The International Summit on Democracy, Terrorism and Security, Madrid (March 2005) observed in its report: Sometimes terrorism is associated with a social movement or political party that enjoys significant popular support largely as a result of its nonviolent activities such as providing much needed social services, (Hamas and Hezbollah are examples of such implanted organizations). Such actors employ terrorism because it is a temporarily expedient means of pressuring a government. They can survive even flourish, without using terror. Other groups are more socially isolated. There may be splinter factions of large organization or small groups that have formed in order to use terrorism. Such groups have few options other than terrorism and over time it may become an identity for them as much as a strategy. In some circumstances terrorism may be seen as legitimate by popular audiences, especially when they are discriminated against and access to power is blocked. It cannot be denied that in some circumstances, the public may not only support the goals behind terrorism but the method itself. 9 Shah, U. B. (2003). “Terrorism and Human Rights”, Indian Bar Review, Vol. XXXI (1). 10 In one of the international conferences discussing countering terrorism, the then Secretary-General of the UN, Kofi Annan, said: Our responses to terrorism, as well as our efforts to thwart it and prevent it, should uphold the human rights that terrorists aim to destroy. Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism – not privileges to be sacrificed at a time of tension. 11 On 28 September 2001, the Security Council adopted Resolution 1373 under Chapter VII of the UN Charter, obligating states to implement more effective counter-terrorism measures at the national level and to increase international cooperation in the struggle against terrorism. 12 “A Global Strategy for Fighting Terrorism”, keynote address delivered by the Secretary-General at the closing plenary of the International Summit on Democracy, Terrorism and Security. 13 On 28 September 2001, the Security Council adopted Resolution 1373, perhaps the most important and basic resolution. 14 “Defining the Indefinable”, Centre for Defence Information, 16 September 2005. 15 Short, Clare (2005). “Depression and Discontent Prevail at the UN”, The Independent, 15 September. 16 Section 2 (a) of National Human Rights Commission, 1993.

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17 Cranston, Maurice (1967). “Human Rights, Real and Supposed”, in D.D. Raphael (ed.) Political Theory and Rights of Man. London: Macmillan. 18 Aggarwal, H.O. (2009). International Law and Human Rights. Central Law Publication, p. 642. 19 “Upholding Human Rights and the Rule of Law in Combating Terrorism”, The Berlin Declaration: The International Commission of Jurists (ICJ), ICJ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism (Berlin Declaration), 28 August 2004. 20 The 7 July 2005 London bombings, also referred as 7/7, were a series of coordinated suicide attacks in London which targeted civilians using the public transport system during the morning rush hour. On the morning of Thursday, 7 July 2005, four Islamist home grown terrorists detonated four bombs, three in quick succession aboard London Underground trains across the city and, later, a fourth on a double-decker bus in Tavistock Square. Fifty-two civilians and the four bombers were killed in the attacks and over 700 more were injured. 21 Sandrasagra, Mithre J. (2005). “UN Terror Resolution Overly Vague”, Inter Press Service, 14 September. 22 The Observer Research Foundation is a public policy think-tank that aims to inÀuence formulation of policies for building a strong and prosperous India. 23 Wilson John is a Senior Fellow and P.V. Ramana a Research Fellow with the Observer Research Foundation, New Delhi. 24 As a former US Senator, Henry Jackson, wrote, “It is a disgrace that democracies would allow the treasured word ‘freedom’ to be associated with acts of terrorists”. 25 Article 9 of the Universal Declaration of Human Rights, 1948. 26 These were the remarks by the then Chief Justice of India K.G. Balakrishnan’s presidential address at the inaugural session of the international conference of jurists on Terrorism, Rule of Law & Human Rights in New Delhi on 13 December 2008. See also http://www.hindu.com/2008/12/16/stories/2008121653310800.htm

PART II: SOCIO-ECONOMIC ORIENTATION OF HUMAN RIGHTS Part II of the book attempts to bring together papers underlining the importance of socio-economic orientation of human rights and their growing relevance to humanity. This part focuses on new emerging issues like safe drinking water and reproductive tourism as well as the plight of the street children and minorities which require special attention in the changing global world. Written by Astha Dewan of University of Delhi the first paper of this section highlights the need of safe drinking water as an essential prerequisite of human right. Despite its universal acceptance as a fundamental right, the right to safe drinking water has failed to meet the test of specificity in the Indian context, argued the author. This has resulted into various waterborne diseases like diarrhoea, enteric fever, viral hepatitis and cholera over past several years. The author emphasized the need of water purifiers as a primary defence mechanism to remove water contaminants. Various researches in the field according to the author reveal the fact that health and safety of the consumers are compromised for commercial gains. The responsibility for water-safety-related issues lies on all the stakeholders of society – the state, the manufacturers, the civil society and the consumers, contended the author. Another paper of this section links the concept of human rights with the problems of street children. Jointly written by Archana Dassi and Sanghamitra Dhar of Jamia Millia Islamia, New Delhi, the authors sought to raise the problem of street children for whom the street has become their real home and offered some strategical solutions on the basis of their field studies undertaken in Delhi. Increasingly deprived of their golden period of childhood in terms of enjoyment of joy, play and freedom, street children according to the authors have become an urban reality all over the world. Their condition is replete with severe hardship, malnourishment, discrimination, assault and violence and they are yet to receive the basic rights that are essential for their growth and development. Advocating the

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“rights” over the “needs” of children as citizens, the authors emphasized a multi-pronged approach to address the issue. A judicious balancing of the political will of the state and effective participation of the non-state actors can go a long way in checking the problem of street children, felt the authors. The third paper of this section focuses on the issue of multi-ethnic societies and the rights of the minorities. Written brilliantly by an eminent political scientist from Indira Gandhi National Open University (IGNOU), New Delhi, Professor Amarjit S. Narang, the paper portrays the paradox of minorities and their rights in the context of multiculturalism. The paper states that the end of cold war and the onset of globalization have led to vulnerabilities as well as backlash of the minorities. Contrary to the perception of the gradual fading away of religion in the wake of science and rationalism, the 21st century has actually witnessed the explosive expansion of ethnicity and religion resulting into various ethnic and religious conflicts. Hence, the question of minority rights and their implementation is very important for the prevention and resolution of such conflicts. What is required is not only acceptance but also respect for the distinctive characteristics and continuation of minorities in the life of national society as a whole, argued the author. Throwing light on an entirely new issue of human rights, the last paper of the socio-economic section focused on the recent trends and changing patterns of “reproductive tourism” and its impact on human rights in terms of women’s reproductive health. Written by a young social scientist from Banasthali University, Rajasthan, Dipti Tripathi, the paper stated that despite facilitating new hope to the infertile group, the new technology in form of ART (Assisted Reproductive Technologies) has posed immense challenges to the health care services, particularly in developing countries. What is more alarming according to the author is the increasing commercialization of the reproductive technologies resulting into a boon for “medical capitalism”. Showing a shift of emphasis in women’s rights discourse from “contraceptive” (health care) to “conceptive” (selfdetermination), the author believes that the issue could be addressed both by using human rights advocacy and by promoting the sexual and reproductive rights of individuals in this field. All the four papers of this section beautifully highlight the salience of human rights from social and economic perspectives. The issues raised by the authors require urgent attention both by the state and non-state actors in order to ensure sustenance of human rights across the world.

CHAPTER FIVE HUMAN RIGHT TO SAFE DRINKING WATER ASTHA DEWAN

Abstract We can have a healthy life only if we are taking pure water. Since the water available to us is not so pure and safe, we cannot imagine a life without a water purifier. The present paper attempts to study the literature related to the performance of water purifiers in India. The reports of various expert committees have been studied to see the efficacy of purifiers in removing viruses, bacteria and other pathogens. The analysis of the findings reveals that the domestic purifiers do not adhere to international standards with regard to usage of chemicals. In developing economies, the perils of substandard drinking water have numerous health hazards, particularly, in India with millions of people affected. Therefore, the onus lies on all the stakeholders of society. The companies should come out with products that make safe drinking water accessible to a larger number of people across the country. It’s high time the government prescribes standards for water purifiers as it did in case of packaged drinking water. .

Introduction The consumer uprising of the pre-1960s in the United States of America leads to the origin of consumer rights in India. March 15 is celebrated as the World Consumers’ Day from the time the Consumer Bill of Rights was introduced in the US Congress. The Indian Parliament enacted Consumer Protection Act, 1986 on 24 December. Hence, 24 December is celebrated as National Consumer Day in India. The present paper attempts to study the literature related to the performance of water purifiers in India. The reports of various expert committees have been studied to see the efficacy of purifiers in removing

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viruses, bacteria and other germs. Several books and journals in the libraries at the Institute of Chartered Accountants of India (ICAI), the All India Management Association (AIMA), the Confederation of Indian Industry (CII), the Faculty of Law and the libraries of North and South campuses of University of Delhi have also been extensively referred to.

Consumer Rights in India The various rights available to consumers under the Consumer Protection Act, 1986 are: (i) Right to Safety: To be safeguarded against the sale of spurious/hazardous goods and services. (ii) Right to Information: To be aware about the quality, weight, price of goods/services being paid for. (iii) Right to Choose: To have access to several goods and services at competitive prices. (iv) Right to be Heard: To be confident that concerns will get due consideration in suitable fora. (v) Right to Seek Redress: To have legal help against unfair trade practices or restrictive trade practices or exploitation. (vi) Right to Consumer Education: This is essential for the exercise of all other human rights. Clean water is vital for life. Our health, physical and mental faculties depend on the water we consume. The right to pollution free water and the right of access to safe drinking water has been read as a part of the Right to Life under Article 21 of the Constitution of India. This has been possible because of a liberal and activist interpretation of the fundamental right to life by the Supreme Court as well as the High Courts of the country in a series of cases before them. After initially talking about the right to water in the context of pollution cases, courts have delivered verdicts on more fundamental concerns of access to drinking water and on the right to safe drinking water as a fundamental right.1 Even while the cases make it clear that there is a judicially evolved fundamental right to water, such a right is not explicitly incorporated under the Constitution of India. The closest that we came to directly incorporating this right was when the National Commission recommended in its 2002 report that a new Article 30-D be inserted in the Constitution stating that “every person shall have the right—(a) to safe drinking water”. That recommendation of

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the National Commission had reiterated what the higher courts have held for the past few years. On a related note, the mere incorporation of a right need not necessarily be seen as a remedy or result-inducing in itself. There are three conditions for a “good quality” human right to be effective: the right needs to be fundamental, universal and clearly specifiable. Can the right to water in India meet the said three conditions? While the basic need for, and hence right to, water is universally accepted as a fundamental right, it has struggled to meet the test of specificity in the Indian context. This is simply because it has not been possible to specify a level below which the right to water can be said to be denied. It is for this reason that the literature on social and economic rights produced by the United Nations over the years emphasizes that all socio-economic rights subject to a regime of “progressive realization” can only be effective if minimum core obligations are built into them. The minimum core obligation of the state flowing from the right to water of every person has not yet been defined and specified either by the legislature or by the courts. During the period of economic liberalization in 1990s, a set of measures favouring total reduction in subsidies, full cost recovery, privatization etc. have been promoted around the world. This logic has extended to the water sector as well. The structural adjustment policies in India since 1991 have made a significant departure from the past. Today, the thrust is towards privatization of the water sector. The main thrust and strategies were, among others, to manage water as a commodity in exactly the same way as any other resource; encourage private sector for construction and maintenance of drinking water projects and mobilize them to the maximum extent feasible; and ensure that, in urban areas, municipalities are free to levy and raise appropriate user charges for drinking water and sanitation facilities in order to strengthen their financial position.

Quantifying Drinking Water Supplies: Key Characteristics The state of drinking water supplies can be quantified by four important characteristics, viz., quality, quantity, reliability and cost.

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1. Quantity: The United Nations (UN) and other national agencies assessed that a person requires 20–50 litres of drinking water daily for regular chores. 2. Quality: The water quality standards set by World Health Organization (WHO) and other organizations specified the satisfactory level of chemicals and microbes. Disproportionate quantities of microbes or chemicals resulting from human and animal wastes, agricultural wastes, industrial pollutants and even natural chemicals cause water-related ailments. Impurities can enter the water both underground and at surface level. Further, if the pipelines distributing water are not fully safe, then the water purity deteriorates even more. Wrong water storage can also cause damage to potable water. 3. Reliability: Water can be procured from various sources, but its reliability is questionable. Water reliability may differ by time and by locality. In households, the dependability of water supply is important to uphold water quality. 4. Cost: The WHO proposed that the supply system should provide potable water without requiring people to travel more than 1 kilometre from the area where they require water. Providing water to people involves cost, which can be monetary or non-monetary in nature. Non-monetary cost includes the travelling time to the source of water. As far as monetary costs are concerned, the prices of water are sometimes partially funded by the Government. In areas where the infrastructure is lacking, users have to pay for bottled water or to gain access to a community source of clean water. Non-monetary cost in the form of travelling time to a water source impacts health and efficiency of human beings, and in many cases it debars females from educational opportunities. Table 1 depicts the access to potable water by Indian households in rural and urban India over a time span covering period from 1981 to 2001. Table 1: Access to Safe Drinking Water in Households in India (in per cent) Total 38.2

1981 Rural 26.5

Urban 75.1

Total 62.3

All India Source: Economic Survey 2011–12

1991 Rural 55.5

Urban 81.4

Total 77.9

2001 Rural 73.2

Urban 90.0

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The progress report issued by WHO and the United Nations Children’s Fund (UNICEF) shows that over two billion people gained access to improved water sources2 and 1.8 billion people gained access to improved sanitation facilities between 1990 and 2010. Almost half of the two billion people who gained access to drinking water since 1990 live in China or India. While the world has met the Millennium Development Goal (MDG) target of safe drinking water well in advance of the MDG 20153 deadline, India is among the ten countries after China with the largest population without access to improved drinking water. India’s Central Bureau of Health Intelligence report4 showed that the incidence of diarrhoea, enteric fever, viral hepatitis, and cholera has increased over several past years. According to the report issued by WHO and UNICEF, India is home to 97 million people without an access to improved water supplies. Overall, there are still 780 million people without access to an improved drinking water source.5 The World Bank estimates 80 per cent of communicable diseases in India are water related. This is posing a serious threat to public well-being. People are resorting to different methods to clean their water. Boiling is one method; however, due to time constraints, nowadays fewer people rely on it. Moreover, mechanical water purification systems not only save time and are more convenient to use, they are taken to be more dependable for removing impurities. This has raised questions about India’s weak water distribution infrastructure combined with questions on effective municipal water treatment plants. All this has made point-of-use (POU) water purifiers a primary defence mechanism to remove various contaminants to make the water safe to drink. Thus, it becomes more pertinent to study how safe our water purifiers are. The present paper attempts to elaborate on various contaminations which could be found in drinking water. The reports of various expert committees and official agencies have been studied to see the efficacy of purifiers in removing viruses, bacteria and other pathogens. Based on a selective literature review, efforts are made to provide suggestions and recommendations to help customers, manufacturers, government and society at large make informed decisions and function better in their respective areas.

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Several indicators have been identified to understand the availability and quality of drinking water in an area. A basic indicator included in the Indian Census is the ‘proportion of population/households having access to safe drinking water’. In this respect, it is argued that while sources of safe drinking water have been listed, sufficient steps are not being taken by the service providing agencies to test the quality of water obtained from such sources at frequent intervals. Sample surveys are also conducted from time to time covering the whole of the Indian Union (with the exception of some remote areas) to collect information on the source and condition of drinking water. Some indicators on which data are collected at national or state level include: “households (HHs) having their principal source6 of drinking water within/near their premises”, “HHs having sole access to their principal source of drinking water”, “HHs sharing a public source”, “HHs served by tap/piped water/tubewell/handpump”, “HHs getting sufficient drinking water from their principal sources”, “HHs satisfied with the quality of drinking water served by their principal sources”,7 “HHs using supplementary sources of drinking water”, “HHs boiling and filtering drinking water before consumption”, “HHs storing their drinking water”, “HHs dipping in a vessel without a handle to take drinking water out of the main storage container”, etc. The Jawaharlal Nehru National Urban Renewal Mission (JNNURM)8 Directorate has identified a list of nine service level benchmarks in respect of water supply services in order to review the performance of service delivery agencies. The indicators are: coverage of water supply connections; per capita supply of water; extent of metering of water connections; extent of non-revenue water; continuity of water, extent of non-revenue water; continuity of water supply; quality of water supplied; efficiency in redress of customer complaints; cost recovery in water supply services; and efficiency in collection of water supply-related charges.

Water Contaminants Drinking water is contaminated if it contains suspension or dissolved impurities beyond the toxic limit defined by Indian standards. The major categories of contaminants found in raw water are: (i) Suspension and Colloidal Particles: Unlike dissolved inorganic impurities some pollutants are much larger in size. They appear as colloids or suspension; these are called particulate matter. If they settle in the body of water, they will cause added problems of toxicity. Suspended particles

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could be silt and colloidal particles might be organic or inorganic matter causing turbidity. Safe drinking water must be free from both. (ii) Dissolved Inorganic Solids: When rain water or water coming from a point source or non-point source percolates through soil, certain inorganic matters are most likely to dissolve. Run-off from agricultural land may have concentrations of phosphorus and nitrogen containing salts issuing from fertilizers. Also, insecticides or pesticides used in agriculture, and preservatives and insecticides used in households may find their way into water. They are toxic for human beings as well as other living organisms. Industrial release is another source of contamination. Many chemicals from industries such as toxic inorganic salts and solvents and many chemicals formed from the breakdown of sewage wastes are hazardous. Pesticides used in agriculture and preservatives and insecticides for controlling insects and weeds may also find their way into water. They are toxic for all living organisms. (iii) Dissolved Organics: Organic impurities originate from the decay of vegetable matter from farms and various industrial and domestic wastes. In addition, water-borne organics are formed under improper storage conditions and inadequate sanitation. (iv) Micro-organisms: Many biodegradable wastes may be good for environment, but they provide food for micro-organisms such as bacteria. Phosphorus and nitrogen are present in fertilizers. They are plentiful in untreated agricultural wastes. If they find entry into streams of water, they cause growth of algae and unwanted weeds. They can cause problems for safe water. (v) Storm Sewage: Storm water is the run-off from precipitation that is collected in a system of pipes or open channels. Such sewage carries organic materials in suspension and dissolves solids and other substances picked up as the water travels over the ground. Sewage discharge from domestic, municipal, food processing and other industrial concerns contains a variety of pollutants detrimental to water quality. (vi) Agricultural Sources: Agricultural wastes, generally, consist of organic products. Fertilizers and other chemicals are spread over agricultural lands. These materials and crop, animal and chemical wastes enter water bodies, mainly in run-off from watershed lands and cause pollution. The inflow of manures from livestock feed also contributes to

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organic pollution. Many of the pesticides, fungicides, herbicides and other industrial chemicals are highly toxic. They are carcinogenic and mutagenic. Though a lot of work has been done on various issues related to water and its safety, the role of water purifiers in providing safe drinking water is relatively unexplored by researchers. This section of the paper reviews major studies and research to understand the various issues pertaining to effectiveness of water purifiers in providing safe potable water. A study by the government-funded National Institute of Virology (NIV), Pune, in 2010 claimed that most water purifiers sold in India do not completely eliminate viruses like hepatitis E. The NIV conducted research on communicable diseases and viruses and evaluated eight domestic water purifiers. The purifiers that were tested included those using activated carbon filters, ceramic candle filters, sediment filters, iodine resin gravity filters, polyester filters, ultraviolet irradiation, reverse osmosis and hollow fibre membrane filters. These features were either employed singly or in a combination. The purifiers were evaluated using Hepatitis E virus (HEV) as a model. The viral log reduction value (LRV) – the capacity to eliminate viruses – was calculated for each purifier. (The log reduction value (LRV) is the difference in the amount of virus particles between raw water (spiked with HEV) and purified water.9) The USEPA (United States Environment Protection Agency) criterion for reduction of viruses is 4.0 log. This means that if there are 10,000 particles in the water to be processed, there should be no viral particles in the water after purification.10 One purifier of each brand was evaluated. The batch-tobatch or unit-to-unit variation was not evaluated. However, even with this limitation, the results indicated that six of the eight purifiers tested did not conform to USEPA standards. It found only two – one equipped with a hollow fibre membrane and the other with a gravity-fed filter – that could completely remove the viruses.11 Another study, Safety of Storage Water Purifiers, was conducted in 2010 by a New Delhi based non-government organization, Healthy You Foundation. Bejon Misra is its founder trustee and is a leading consumer activist in the country. The results showed that water purifiers are more harmful than polluted water. The study has established that none of the storage water purifiers in the Indian market complies with the required international safety standards.12 Though several tall claims are made by manufacturers on the purity and safety of water, they are providing substandard drinking water to its consumers. The domestic water purifiers are

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aggressively marketing the chemical-based technology to purify water, creating a serious public health issue. The absence of any regulatory mechanisms mandated to check the claims and the standards of the water consumed by ignorant and helpless consumers is a serious concern too. The study notes that most of the storage purifiers use trichloroisocyanuric acid, a chemical used to sanitize swimming pools.13 It is found that many water purifiers are using unregistered chemicals in a dosage that is not prescribed. The study highlighted the fact that leading storage water purifier manufacturers do not declare that they use the chemical to treat water.14 These researches reveal the fact that health and safety of the consumers are compromised for commercial gain. There is a lack of standards and guidelines for water purifiers in India, particularly for chemical-based water purifiers. Apart from the dearth of bacteriological standards, the absence of virological standards is felt to compromise water safety and quality. The studies conducted by organization, either government or NGO, serves no purpose for the consumers unless the brand names are revealed. The information given by them is scanty and creates more confusion rather than providing a solution to the consumers’ problem. On their part, the water purifier manufacturers generally do not fulfil adequate disclosure requirements to enable consumers make rational decisions. Apart from the responsibility of the government and the manufacturers, it is the duty of every consumer to safeguard his own interests. The consumers are going by brand names rather than the performance of purifiers.

Recommendations Based on the analysis of the responses obtained from sample of water purifier customers, the following suggestions and recommendations can be provided to help customers, manufacturers, government and society at large, make informed decisions and function better in their respective areas. There are no standards in India for water purifiers. Thus, foreign standards are followed in India. We are dependent on the United States Environment Protection Agency’s (USEPA)15 standards for testing purifiers. It’s high time for the government to prescribe standards for water purifiers as it did in the case of packaged drinking water. A separate regulatory mechanism

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for chemical-based water purifiers is required. Generally chemical-based purifiers cannot purify dissolved solids. They are thus not advised in areas of very hard water or water with other dissolved solids.16 Further, many leading brands of water purifiers use trichloroisocyanuric acid (TCCA), a chemical used worldwide for sanitizing swimming pools. Also some of the chemicals used in the water cleaning process by these purifiers themselves decompose during the treatment of water and produce substances which can be harmful to health.17 The usage of chemicals such as chlorine in the purifiers needs to be watched so that their levels in the water are under the safety points. To check the usage of harmful chemicals, a referral laboratory can be set up. A national policy for the evaluation of purifiers by the concerned authorities is required. To verify the claims made by purifier manufacturers, comprehensive testing should be done to crosscheck such claims. Guidelines should be laid down for the official recognition of certification authorities involved in the certification of water safety management systems. Procedures for official recognition of laboratories and notification of accredited laboratories should be framed. Stringent punishment should be imposed on offenders. All purifier manufacturers should be made responsible for proving their technology. This will prevent companies from making false claims. Various studies have found that viruses remain longer in water than bacteria. In India, the norm for appraising the microbial function of a purifier is for the device to provide bacteria-free water from water to which a fixed amount of Escherichia coli bacteria has been added.18 However, one should not depend on bacteriological measures to judge the virological quality of water. Thus, virological standards should be established immediately in India. Producers of natural mineral water and packaged drinking water in India are required to satisfy the Bureau of Indian Standards (BIS), but there is no such mechanism for ensuring the safety of potable water purification devices.19 The BIS is required to look into the standardization, certification and quality of water purifiers. A regulatory body needs to be set up to keep an eye on the safety of all types of drinking water just as the United States has the Environment Protection Agency, and the European countries have the European Chemicals Agency. The Ministry of Consumer Affairs can act impartially on the issue and make a list of all the purifiers available in the market and declare their status as to the purification levels they achieve of the water as established by the studies done by various institutes.

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There is a need to promote general awareness about water safety and standards among the masses. Thus, adequate disclosure requirements and regulations are needed in the country to address health issues. This will prevent companies selling their products without checks and will enable consumers to make informed choices. The customers themselves need to be sure about the quality of the water they are consuming. The performance of the purifier depends on its maintenance. Signing an annual maintenance contract with the company will ensure periodic servicing of the purifier and timely replacement of filters and other parts, and will help keep the purifier in good working condition. To be sure of the water purifier’s performance, get the water samples tested for contamination (before and after purification). Quality of water and TDS levels need to be tested before testing or buying any water purifiers. For children, elderly or sick persons, it is advisable to give boiled water even after purification, as they have lower immunity. This becomes more important in the rainy season. (The World Health Organization has certified sand for water purification process. Sand, an abundant natural resource, has been used to clean polluted water in developing countries, saving millions of lives every year. Mainak Majumder of Monash University and his international team have increased the natural filtering properties of sand by coating it with a nanomaterial called graphite oxide (GO). Thus, coated sand can be used as a cheap water purifier.) Awareness and consumer literacy is required on the part of consumers to safeguard their own interests. A vigilant consumer plays an important role in ensuring safe drinking water. The manufacturers should make the public aware, through labelling or in their literature, of the relevant information about potable water. Generally, the purifier brands do not meet disclosure requirements. It should be made mandatory for the manufacturers to label or make public in their literature the information required by the consumers. They could focus on the type of chemicals used to treat the water, how the presence of chemicals can be monitored by users, the life of filters and other components, to name a few. Businesses have a moral responsibility to check the use of chemicals including chlorine in their purifiers so that the quantity is kept under set levels. Manufacturers should themselves refrain from making any false claims unless comprehensive testing is undertaken by a recognized body to verify their claims. Appropriate standards need to be developed by industry

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bodies for water purifiers in general by providing training programmes for persons who are involved in water purification business. Manufacturers can contribute to the development of standards for water safety by providing scientific and technical support to central and state governments in framing rules on water safety matters. Thus, the health of consumers of water purifiers in India is at risk and immediate action on this issue must be taken by all the stakeholders of society. The manufacturers of water treatment equipment should bear responsibility for meeting quality and safety regulatory requirements.

Conclusion Water is life but only when it is pure. The United Nations considers universal access to clean water a basic human right and an essential step towards improving living standards worldwide.20 Economic prospects are lost due to widespread sickness and the time-consuming process of obtaining potable water where it is not readily accessible. Children and women are forced to bear these burdens. In India, investments in community water supply projects have increased steadily from the first Five Year Plan. The past few years have seen greater emphasis on water quality monitoring and surveillance with specific allocation being made under central grants. However, the health benefits in terms of reduction in waterborne disease have not been commensurate with the investments made. With the growing multitude of diseases caused by water-borne pathogens, demand for water purifiers providing safe potable water has been growing. Domestic water purifiers generally use chemical purification, ultraviolet (UV) treatment and filtration, or reverse osmosis (RO). Typically, chemical-based water purifiers are cheaper than UV and RO systems, so the majority of Indians still own chemical-based water purifiers, which are posing serious health issues. The responsibility for water-safety-related issues lies not only on the manufacturers but also on customers, government and society at large. Apart from poor water quality, unhealthy ways of water collection and storage and restricted access to sanitation amenities disseminate waterborne diseases. To ensure safe drinking water, the government should facilitate more Public-Private Partnership (PPP) models of water

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distribution in conjunction with Panchayati Raj and local implementation agencies. Deeper questions of morality and ethics must be addressed when dealing with issues concerning human rights, but ethical practices cannot be guaranteed by any code of ethics. Ethics just need to be implemented. Standards for water purifiers should not be just another regulation.

Notes 1

These cases include Wasim Ahmed Khan v. Government of Andhra Pradesh 2002 (5) ALT 526 (D.B.); Mukesh Sharma v. Allahabad Nagar Nigam & Ors., 2000 ALL. L.J. 3077; Diwan Singh and another v. The S.D.M. and other 2000 ALL.L.J. 273; S. K. Garg v. State of UP. 1999 ALL. L. J. 332; Gautam Uzir & Anr. v. Gauhati Municipal Corporation 1999 (3) GLT 110. 2 Progress on Drinking Water and Sanitation: 2012 Update (WHO/UNICEF). Available at http://www.unicef.org/media/files/JMPreport2012.pdf – accessed 19 June 2013. 3 http://www.unicef.org/media/media_61922.html. 4 Central Bureau of Health Intelligence Report 2010. 5 http://www.unicef.org/media/media_61922.html. 6 If a household obtained drinking water from the same source throughout the year, that source is treated as a principal source (NSSO, 1999: 6). 7 If a household, during the last year, obtained drinking water from more than one source, then the one most commonly used was treated as the principal source and the next one was treated as the supplementary source (NSSO, 1999: 6). 8 The mission, launched by the Government of India in December 2005, supports State and local governments in undertaking fiscal, financial and institutional changes for the creation of efficient and equitable urban centres. 9 Annual Report 2009–10, National Institute of Virology (NIV), Pune. 10 Annual Report 2009–10, National Institute of Virology (NIV), Pune. 11 Annual Report 2009–10, National Institute of Virology (NIV), Pune. 12 Annual Report 2009–10, National Institute of Virology (NIV), Pune. 13 Annual Report 2009–10, National Institute of Virology (NIV), Pune. 14 Annual Report 2009–10, National Institute of Virology (NIV), Pune. 15 Environmental Protection Agency (EPA) is the US governing agency on potable water. 16 http://www.indiawaterportal.org/ask/5305. 17 http://www.indiawaterportal.org/ask/5305. 18 Annual Report 2009–10, National Institute of Virology (NIV), Pune. 19 http://articles.timesofindia.indiatimes.com/2010-09-17/india/28229696_1_ purifiers -viruses-filters 20 http://www.drinking-water.org/html/en/Overview/Why-is-Safe-Water-Essen tial. html.

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Further Readings Desselberger, U. (2000). “Emerging and Re-Emerging Infectious Diseases”, Journal of Infection, 40: 3–15. “Drinking Water and Sanitation Status in India”, Water Aid India, 2005. “Drinking Water, Sanitation, and Clean Living Conditions”, Planning Commission, Eleventh Five Year Plan 2007–2012, Chapter 5. New Delhi: Government of India. “Emerging Issues in Water and Infectious Disease”, World Health Organization (2003). “Guidelines for Drinking-Water Quality”, World Health Organization. Vol.1. 3rd edition. “Health Information of India (HII), 2000–2005”. Central Bureau of Health Intelligence, New Delhi. “How Safe is your Water Purifier?”, Financial Express.com, 21 July 2010 and 25 September 2011. Indian National Trust for Art and Cultural Heritage (INTACH) (2010). “Holistic Water Policy for Future Urban Water Security of Delhi”. Jacob, N. (2008). Jalyatra: Exploring India’s Traditional Water Management Systems. New Delhi: Penguin. McIntosh, Arthur C. (2003). Asian Water Supplies: Reaching the Urban Poor. London: Asian Development Bank and IWA Publishing. “Most Water Purifiers Don’t Remove Viruses: Study”, The Economic Times. 17 September 2010 and 2 October 2011. Pandit, V. (2009). “Dow India Inaugurates Water Purification Plant at Dahej”, Business Line, 28 May. Chennai, India: The Hindu Group of Publications, www.thehindubusinessline.com/2009/05/28/stories/200905285093170 0.htm accessed 30 April 2011. “Purer Water from Super Sand”, Science Alert. 30 June 2011 and 14 October 2011. Upadhyay, Videh (2005). “Save Groundwater or Ground Democracy?” available at http://www.indiatogether. org/2005/jul/vup-keralcoke.htm accessed 24 April 2011.

CHAPTER SIX THE STREET CHILDREN AND THEIR HUMAN RIGHTS: A STUDY OF INDIAh ARCHANA DASSI AND SANGHAMITRA DHAR

Abstract The phenomenon of street children has evoked mixed response from people who are involved with them in various capacities. While on one hand they are subjected to physical abuses, neglect and rejection by the society, on the other they are considered as children in need of care and protection by the State. According to UNICEF (2005) there are more than 11 million street children in India, and 100,000 are in Delhi, where they face severe child rights violations. Despite several piecemeal efforts by the State, the situation of the street children is more or less the same, constantly the victims of apathy and injustice. Against this background, the present paper attempts to examine the issue of street children from a rights-based perspective.

h The empirical fieldwork for this study was conducted in early 2011. The authors extend their gratitude to two volunteers, Mr. L. Tirang Rangsanamei and Mohammad Shabbir Alam, for their support with the data collection. Sincere thanks are extended to the children who took out time from their busy life to share about themselves, their joys and their sorrows, their dreams and aspirations. We wish them a life of fulfilment and happiness. The contents of this study reflect the views and interpretations of the authors exclusively.

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Introduction Childhood is like a golden period filled with innocence, joy, play and freedom. This is a stage when the person is spared the hardships of adult life, spared responsibility and obligations. But this is not true for all children, especially the street children. Although these children also require care and protection from “the harshness of the world outside” and around (Holt, 1975), in reality they are jerked into unprecedented maturity and have to cope with difficult circumstances. One such group of children are the street children that are an urban reality all over the world, most particularly in the developing countries. They are globally recognized as children particularly at risk of violence. UNICEF’s State of the World’s Children reports have for many years highlighted the extremely difficult circumstances in which children work and live in the streets of our towns and cities. In spite of the visibly grave situation, street children are used for illustration purpose showing destitution, neglect and vulnerability but hardly any concrete plan in terms of policies, programmes or services are put in place to address the situation (Pinheiro, 2006). UNICEF (2002) estimates that there are more than 500,000 street children in India alone, of which 100,000 to 125,000 are living on the streets of Mumbai, Kolkata and Delhi and about 45,000 in Bangalore with a male female ratio of 9:1 (Dassi, 2011). According to a study conducted by Human Rights Watch (1996), street children in India are subjected to illegal police detention, beaten, tortured and sometimes even killed by the police; this study points out the possible factors for the biased perception of the police authorities towards street children. It further comments on the general corruption and violent nature of the police, unsatisfactory legal safeguards for the children etc. (Kacker, 2007). These children are considered vagrants and criminals by society and are subjected to physical violence by family, caregivers, police and other adults (ibid.). Historically, street children were identified as a global issue of concern in 1979 by the United Nations; and as a sensitive subject have since been extensively researched academically in almost every part of the world (Lalor, 1999). There have been numerous attempts to define the phenomenon of street children. One of the landmark definition in the history of street children was given by the Inter NGO Programme on Street Children and Street Youth in 1983 which sought to describe them as “those [children] for whom the street (in the widest sense of the word i.e., unoccupied dwellings, wasteland, etc.) more than their family has become their real home, a situation in which there is no protection, supervision or

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direction from responsible adults” (Ennew, 1994). According to a UNICEF typology, the street children are divided into three groups, namely “On the Street” [children living with their family], “Of the Street” [children with occasional contact with family], and “Abandoned or Runaway” [children who have no contact with their families], although this typology was difficult to uphold in all parts of the world as in practice it was found unsatisfactory because children themselves defied these (Felsman, 1984; Panter-Brick, 2002). Nevertheless, measures were adopted for “developing strategies … which would defend their rights, avoid their exploitation, and respond to their personal, family, and community needs” (Tacon, 1991). The outcome is a point of concern as the incidence has not lessened even two decades later. The United Nations Convention on the Rights of the Child (1989) defines children as “every human being below the age of 18 years” and demands rights for children in adverse conditions. According to the Convention, concern for children in difficult circumstances was no more a matter of humanitarian or charitable nature but was a legal responsibility for the state parties. It listed certain areas where the rights and interests of the children were to be taken into account, namely separation from parents, freedom of expression, health, education and employment. This convention was carefully worded to formulate a clear principle to empower intervention while leaving room for some flexibility and cultural interpretation (Alston, 1994; Van Bueren, 1998; Panter-Brick, 2002). Human rights are basic inalienable rights conferred on every human being by virtue of birth. Certain basic values underpinning the concept of human rights are the importance of life, freedom and liberty, equality and nondiscrimination, justice, solidarity, peace and non-violence. The Preamble of United Nations Declaration of Human Rights 1948 lays emphasis on equality and life full of dignity. However, the condition of the street children is replete with severe hardship, malnourishment, discrimination and violence at the hand of authorities. The minds of these street children are scarred by the injustice meted out to them throughout their life. This vulnerable group of children are denied their basic human rights to lead a dignified and respectful life. The underprivileged family circumstances, meagre economic condition, deprivation and violence oust the children from their homes and bring them into the streets.

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Situation of Street Children in India The phenomenon of street children has to be seen in the light of global development, as well as political, economic and social changes in the last five decades, particularly in the light of massive urbanization (Nieuwenhuizen, 2008). Currently one out of four people in the world, as in India, live in a town; India’s demographic numbers are witness to the same trend. Rampant industrialization led to mass migration as livelihood was sparse back home; people migrated to metropolis and megapolis with the dream of earning a decent livelihood and leading a good, respectable life. However, the poor families who are unable to get a decent shelter or a house for themselves in these mega cities end up on the streets with their children. While often children who have run away or been abandoned are also found living on these streets. According to an estimate by UNICEF (2001) India has approximately 5 million children living on the street. In case of Delhi alone, according to a study conducted jointly in 2008 by three NGOs (Bal Sahyog, the Young Women’s Christian Association (YWCA) and the Indian Alliance of Child Rights), there are approximately 125,000 street children in Delhi and who are victims of rampant abuse (emotional, sexual, physical) and other exploitations. Although it is well understood that the situation of street children requires concerted efforts and there are no easy solutions to the problem, efforts are dismal and somehow half-hearted with badly-designed, ill-funded policies and services which hardly address the real problem, leave alone any resultoriented interventions. In fact, it is often observed that the policy makers seem to view the street child as a social problem and therefore systems are installed in order to protect society from the ill-effects of street children, which shows complete indifference to the societal violence imposed on these vulnerable children. Street children are yet to receive the basic rights that are essential for their growth and development. It is pertinent then to view the subject from the perspective of the rights of a child. Hence, there is a need to have a fresh look at the situation of street children in a metropolitan city, ascertain the problems and challenges faced by them and services offered by the state for alleviating the problems of the street children. With this focus, the authors studied a sample of street children on the streets of Delhi. The goals of the study were to understand children’s perspective on their life situations and analyse the intervention mechanism; we specifically opted for purposive sampling where those respondents were selected who were

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able to verbalize and express their problems, struggles and strategies to overcome these challenges.

Our Study The present study attempts to reflect on the socio-economic situation, problems and concerns of the street children in Delhi. An interview schedule along with an observation sheet was designed in order to gather the information from children spread over market places, traffic signals, and railways platforms in and around National Capital Territory (NCT) of Delhi. A sample of 30 children was selected where an equal number of street children were selected from railway station, market place and traffic signals. Some case studies were also made and excerpts are presented in the paper.

Socio-Economic Profile of the Street Child Looking at the profile of the street child in the present study, it is found that out of 30 children, 17 children were living with their families on the street, 7 children were found living on their own with occasional interaction with their families and 6 were runaway children who had no contact with their family. The children were primarily aged 10 to 16 years, with 28 boys and 2 girls. More than 50 per cent of the children are living with their families on the streets due to poverty and deprivation in their native place; a consequence trend of striving for better life with more economic security, nutrition and education had led them to migrate to the metropolitan cities. Although they aspired for a better life, they are now forced to survive on the pavements of the busy streets in Delhi with meagre sustenance. The data also show that the 7 children who are living on their own with occasional contact with their respective families are primarily in their early or mid-teens. The 6 runaway children left their homes willingly due to different factors: in one case the child had run away from home some 6 years back after his elder brother beat him incessantly; another boy in his mid-teens said that he wanted to study in a good school and his father could not afford it, so he decided it was waste of time for him to continue education in that school and left home; another child told us that he left home when he realised that he would have to look after his mentally challenged sibling after his father died; the other three children had somewhat similar stories and said that their families were too poor to take care of them and were pressing them to work, hence they decided to work and earn for themselves in some metropolis.

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From the above findings, it can be rightly derived that the primary factor for the occurrence of “of the street” and “runaway children” is family malfunction and systemic failure where they are not provided with a supportive, encouraging and facilitating atmosphere to develop freely but are burdened with the responsibility of earning for the family, violence and abuse in family, lack of quality services in education system etc. On exploring their literacy level, it was found that out of 30 children, 21 have studied till III standard with 1 child found to have attended school till VIII standard; 8 children were illiterate. From this data, a rational conclusion is that lack of quality education leads to dropping out and a general sense of uselessness. The legislation which gives every child the right to education is violated in that the uninteresting and discouraging environment of school systems, especially in rural areas, prepares the children to be disillusioned and they consequently drop out. Looking into the migration pattern, it was found that 19 children have migrated from Uttar Pradesh, 7 from Bihar, 3 from West Bengal and 1 from Orissa (now called Odisha). In fact, only 4 children were found to be born here in Delhi on the street, the rest of them having migrated from their hometown anything from 4 to 14 years previously. Bihar and Uttar Pradesh outnumbered any other states, reflecting the fact that these are two of the country’s poorest states. In case of Uttar Pradesh, the proximity of Delhi, a major metropolis, has to be borne in mind too. As said earlier, malnourishment and poverty in the rural settings, in these states, result in relocation on a massive scale, and consequent mistreatment and deprivation of these people in the urban setting. The work the migrants are engaged in is primarily daily wage labour like cleaning cars, working on construction sites, rag picking, begging and working as hawkers in market places. Some were found working as cleaning assistants in marriage parties. The children who were living with their families on the street had multiple sources of income as their parents and other siblings were also involved in earning a livelihood, but in cases where father and mother along with one or two siblings were earning, the major portion of the income was consumed in alcohol by the father and older siblings. In one case where the family size was 7 members – 2 sisters and 3 brothers with their parents, it was observed that the family is jointly saving to rent a small house in one of the slum clusters in Delhi. The nature of the work these children engage in is often hazardous and at times socially unacceptable.

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Problems and Issues Concerning Street Children A child working and living on the streets of Delhi is susceptible to various hazards that are a constant cause of fear in them, such as the harassment posed by the drug-peddlers, police, railway authorities, municipality officials and people generally. They are also at high risk of engaging in criminal activities, substance abuse, sexual behaviours etc. The lack of education and the uncaring environment push these children further into malnourishment and overall deprivation. (a) Harassment by the Police The children unanimously pointed out that the police were their greatest problem as they were often harassed by them. Many times their things would be thrown away or they would be bullied and reprimanded. Another problem that most of the children shared, and which is discussed at length later, is their vulnerability to substance abuse. It can be seen from the data that police high-handedness was the most critical factor of problems faced by all the children interviewed. In fact, it needs to be pointed out here that even after knowing fully well that confidentiality will be maintained at all times, these children were quite apprehensive about sharing this, as they feared the local police would harass them if they got to know. These children in difficult circumstances are subjected to unprecedented callousness from the authority that is meant to protect them. It is their right to safety that is grossly violated in the hands of the state machinery that is supposed to take care of them. It was also observed that the children are unwillingly dragged into the substance abuse racket in different forms. (b) Vulnerability to Substance-Abuse According to a WHO report (1997) about 90 per cent of street children indulge in some kind of substance abuse. The kinds of things used as drugs are varied and sometimes quite unusual. For example, our study found that the ashes of incense sticks are used as a drug by some street children. However, Gutka, Bidi, alcohol, sniffing solutions, Ganja and Charas (cannabis products) are the most generally used. Among our respondents, except for 7 children all others were habituated to Gutka. Those children who were not taking it said that their parents would not allow them as they are too young for it; while all the children who were living on their own away from their families were taking it regularly. They said that they were consuming about 3–5 packets daily. The reason cited

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for consuming Gutka was typical of teenage response. They said that it made them look more mature and tough in the eyes of other children. In case of Bidi, similar trends were found in the study as 85 per cent of the children admitted that they indulged in smoking regularly. Only 15 per cent were supervised by their parents and not allowed to engage in such activities. As for consuming alcohol, sniffing solutions and taking Ganja and Charas, about 50 per cent of the children consumed it regularly. Further, it was also noted that a majority of the 50 per cent were living alone. (c) Sexual Behaviour Another astounding finding from the children was about their sexual relationships. Some of the children who accepted indulging in the sexual act confided that almost 70 per cent of the children were taking part in it on a regular basis or at least once in a while. On discussing the precautions to be used for safe sex, none of them had any idea about it. The use of contraceptives during sexual intercourse was unknown to them. It is the researchers’ observation that they felt uneasy sharing this information related to their sexual behaviour. Children in their teenage years are of course characterized by streaks of adventure and independence, sexual activity being one of them. Discussion of sexual relationships is a taboo subject for the respondents, yet they are indulging in it almost regularly. There is a total lack of awareness on the subject of safe sex among these street children. (d) Health Awareness On enquiring about their health check-up practices, it was found that the majority of the children have never visited a hospital and in the case of any illnesses they tended to buy medicines from the chemist. The treatment they received, if any, was from the NGO clinics which they would visit in emergency, but they had never visited a hospital in their life. This information is another disturbing aspect about the children as they are already at risk physically due to the hazardous nature of their work; injuries, cuts etc. are a regular occurrence but without proper treatment and medication they are at greater health risk.

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(e) Awareness about Education When asked about their knowledge about the legislation on the right to education for all, they dismissed the idea saying it was useless as their working hours would be disturbed and after work they got too tired at night to go to any informal education centre. However, like any other children, the street children are also innocent and simple-minded with twinkling eyes full of dreams and aspirations; they want to become doctors, dancers, teachers, social workers, businessmen, air hostesses etc. All they want is a normal happy life that is denied to them due to their life circumstances full of challenges, neglect and harassment. They intend to achieve their dreams someday but have no clue how they can. When they were told that all these dreams could be achieved only after pursuing proper education, they were unsure about it, reasoning that they doubt it as they see too many educated unemployed adults around them. The street children are forced to grow up too quickly due to the life-events they are forced into; however deep down they are like any other innocent, gullible children dreaming about things that in their waking hours are far from reality. Their disillusionment with education is further reinforced by their belief that it is useless and will not give any returns. These children have a fundamental right which is violated because the authorities do not make them aware of the usefulness of education. There were certain emphatic concerns that these children resonated constantly such as “we want to live in a house”, “we wonder when our poverty will go away”, “we do not like begging”, “are we ever going to see our family again?” and such heart wrenching words. From the above findings the researchers believe that the children are trying outwardly to project themselves as strong, independent and capable of taking care of themselves. They believe that if they are smart and tough, nobody will dare to harm or hurt them. In fact, deep inside they too crave a normal, happy life with simple dreams, a life of comfortable companionship with family and friends.

Government Initiatives The cause of the children was viewed as a welfare matter by the State (NHRC, 2005). However, India being a signatory of the UNCRC (United Nations Convention on the Rights of the Child), it is now mandatory to acknowledge their “rights” and not just “needs”. The primary principle on which the rights of the child are based is the “best interest” principle

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which is to take any action keeping in mind what will be best for the child/children. The Constitution of India recognizes the vulnerable position of children and their right to protection. Following the doctrine of protective discrimination, it guarantees in Article 15 special attention to children through necessary and special laws and policies that safeguard their rights. The right to equality, protection of life and personal liberty and the right against exploitation are enshrined in Articles 14, 15, 15(3), 19(1) (a), 21, 21(A), 23, 24, 39(e) 39(f)1 and reiterate India’s commitment to the protection, safety, security and well-being of all its people, including children (Kacker, 2007). There are some national policies too which are instruments for the safeguard of the rights of a child, such as Indian Council of Child Welfare, 1952; Central Social Welfare Board, 1953; National Policy for Children, 1974; Integrated Child Developmental Service, 1975; National Policy on Education, 1986; National Policy on Child Labour, 1987; National Nutrition Policy, 1993; Report of the Committee on Prostitution, Child Prostitutes and Children of Prostitutes and Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children, 1998; National Health Policy, 2002; National Charter for Children, 2004; and National Plan of Action for Children, 2005 (NHRC, 2005; Kacker, 2007). Government schemes significant to street children include the Integrated Programme for Street Children without Homes and Family Ties. Under this scheme a number of NGOs are supported to run 24-hour drop-in shelters and provide food, clothing, shelter, informal education, recreation, counselling, guidance and referral services for children. It also includes enrolment in schools, vocational training, occupational placement, mobilizing preventive health services and reducing the incidence of drug and substance abuse, HIV/AIDS etc. (Kacker, 2007). Another important mechanism, widely used for child protection, is the CHILDLINE service for children in distress, especially children in need of care and protection, providing them with medical services, shelter, rescue from abuse, counselling, repatriation and rehabilitation. It is a telephone helpline, number 1098, running in 74 urban and semi-urban centres in the country. Although there are many policies and schemes for the safeguarding of children in need and protection, they are unable to contain the problems and concerns of the children in difficult circumstances, especially of the street children. This propels us to look again at existing provision and

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consider the gaps. It may be pointed out here that the “best interest” principle necessitates participative mechanism for children in the decision making for ensuring their safeguard and protection and strengthening their basic rights and special rights as visualized by the UNCRC. However, the states have a piecemeal approach of proposing half-hearted policies which fall flat in the face of practice on the ground.

The Way Forward The State is unable to provide them a dignified life; the right to education and safe living are denied to these children. Probably we have to look again at our strategies and redesign them on a geo-spatial basis with a case by case action plan, if need be. There should not be any generalized strategy for addressing the issue; it rather requires a multi-pronged approach. Therefore, the intervention has to be from particular to general and vice versa at all times. The United Nations Convention on the Rights of the Child, 1992 for the first time stressed the “rights” over the “needs” of children as citizens (Earls and Carlson, 1999) and this change in approach makes it important for us to acknowledge that the opinion of the children about their condition should be taken into account and as such a participative dialogue is a viable option when designing any intervention plan for the children. Awareness-raising and advocacy work among decision-makers and the general public with special emphasis on the promotion of the political will of government to act against the social exclusion of children and young people needs to be strengthened. Financial support to grassroots-level projects and programmes and technical assistance with grassroots professionals (e.g., training of street children educators and social workers; enhancement of professional capacities of the police and children’s lawyers) is urgently required. Networking of projects and promotion of partnerships among various stakeholders to meet the priority needs of street and working children, their educators and programme managers would benefit the overall performance on the issue. Even though it appears a Herculean task, it is achievable if the right mix of initiative, willingness and empathy is instilled in the policymakers who formulate programmes and schemes which do not address their real issues

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and even reach every child but are more of a piecemeal approach. It is important to understand that concerted efforts to address health, education and shelter of the children are of utmost importance for the street children.

Notes 1

According to the Constitution of India 1949 – Article 14 speaks of equality before law – that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 talks about prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 15 (3) states that nothing in this article shall prevent the State from making any special provision for women and children. Article 19 confers protection of certain rights regarding freedom of speech etc. (1) All citizens shall have the right: (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) omitted; and (g) to practise any profession, or to carry on any occupation, trade or business. Article 21 focuses on protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21A empowers the State to provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Article 23 talks about prohibition of traffic in human beings and forced labour. Article 24 speaks about prohibition of employment of children in factories, etc. No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment, provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7); or such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7). Article 39 mentions that Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; and (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

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References Alston, P. (1994). “The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights in the Best Interests of the Child” in P. Alston (ed.), Street Children: Street Children Statistics, Oxford: Clarendon Consortium, pp. 1–25. Available on line at: http://www.streetchildren.org.uk/_uploads/resources/Street_Children_ Stats_FINAL.pdf (accessed on 15 June 2012) Dassi, A. (2011). “We too are Children…Life of Street Children”, Urban Panorama, Vol. X. No. 1. Earls, F. and M. Carlson (1999). “Children at the Margin of Society: Research and Practice”. New Direction for Child and Adolescent Development 85 (Fall). Ennew, J. (1994). Street and Working Children: A Guide to Planning. London: Save the Children. Felsman, J. K. (1984). “Abandoned Children: A Re-Consideration”. Children Today 13:13–18. Holt, J. (1975). Escape from Childhood. Harmondsworth: Penguin Books. Kacker, L. et al. (eds.). (2007). Study on Child Abuse INDIA 2007. Ministry of Women and Child Development, Government of India. Available at http://wcd.nic.in/childabuse.pdf (accessed on 15 June 2012). Lalor, K. (1999). “Street Children: A Comparative Perspective”, Child Abuse and Neglect, Vol. 23 (8), pp.759–770. NHRC (2005). “The Rights of the Child in Human Rights Education for Beginners”, New Delhi: National Human Rights Commission. Nieuwenhuizen, P. (2008). Street Children in Bangalore (India): Their Dreams and Their Future. Het Spinhuis: Apeldorn-Antwerpen. Panter-Brick, C. (2002). “Street Children, Human Rights, and Public Health: A Critique and Future Directions” Annual Review of Anthropology, Vol. 31 (2002), pp. 147–171. Pinheiro, P.S. (2006). World Reporton Violence against Children. (Geneva: United Nations) Available for download from www.unicef.org/violencestudy/ (accessed 19 June 2013). Taçon, P. (1991). “Protection, Respect, and Opportunity for the Street Children of Ethiopia”. Consultant’s Report to Representative of UNICEF in Addis Ababa, Ethiopia (unpublished). UNICEF (1998). Implementation Handbook for the Convention on the Rights of the Child. New York/Geneva: United Nations Children’s Emergency Fund.

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—. (2001). We the Children: End-Decade Review of the Follow-Up to the World Summit for Children. New York/Geneva: United Nations Children Fund. Van Bueren, G. (1998). “Children’s Rights: Balancing Traditional Values and Cultural Plurality” in G. Douglas and L. Sebba (eds.). Children’s Rights and Traditional Values. Aldershot, UK: Dartmouth, pp. 15–30. WHO (1997). “Child Abuse and Neglect, WHO Fact Sheet”, N 151, Available at http:// www.who.int/inf-fs/en/fact 151.html (accessed 8 June 2012).

CHAPTER SEVEN MULTI-ETHNIC SOCIETIES AND MINORITY RIGHTS AMARJIT S. NARANG

Abstract Against the background of ethnic plurality in most countries of the globe, increasing conflicts between them particularly since the end of cold war and in the context of globalization and prevailing apprehensions and fears among minority groups, the paper delineates the relevance and importance of accepting the idea of minority rights. It analyses both theoretical and practical aspects of the debate on minority rights. It suggests these rights as appropriate mechanism for harmonious coexistence within the existing boundaries of multi-ethnic states.

Introduction Almost all states in the present day world are marked by diversity and differences – differences of ethnicity, culture and religion in addition to many individual differences characterizing the members of such societies. Out of total 189 nation-states listed in official sources in 1993, 150 have four or more ethnic groups within their boundaries, 29 list three ethnic groups, 8 list two ethnic groups and only 2 nation-states list only one group (Isajiw, 1999: 11). According to some estimates the world’s independent states today contain over 600 living language groups and 50,000 ethnic groups. Increased global contacts and interactions, and in particular extensive migrations, have placed diverse practices of different cultures next to one another (Sen, 2006). Globally, society’s relation to cultural and ethnic diversity is somewhat paradoxical. On the one hand, cultural identity as the defining element of the boundaries of society is acknowledged but seen as an antiquated reality

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that is to be subordinated to global economic considerations. On the other hand, the leaders of global society constantly deal with multicultural diversity and recognize it as an economic resource (Isajiw, 1999: 12). In many countries, minorities, linguistic, ethnic and cultural – all these categories quite often overlap – have been and are regarded as both a threat and a challenge. This varies from context to context, synchronically and diachronically. As Clinton Bennett (1998) puts it, minorities, even if wealthy, are just that: minorities. They can rarely win any contest against the majority. Psychologically, though, minorities represent something that disturbs majorities or rather, they disturb those who wish to maintain monocultural or nonreligious identities; people fear minorities because their very existence and persistence suggests that alternatives are conceivable. It is expected that as societies become more diverse, the threat will diminish. The challenge will be to create mechanisms that protect pluralism. The danger is that the mechanisms we create will allow some to flourish, while marginalizing others. This is, somehow, happening today. There are indications of greater vulnerability of minorities, particularly religious, in all parts of the world. At the same time, there are reports of a militant backlash by religious minorities abusing the basic rights of other minorities as well as of ordinary citizens. This, of course, as Cheryl Saundders (2003: 33) points out, is a response to a variety of factors. One is the end of the Cold War, and the relaxation of the somewhat macabre discipline that is imposed on the world. Another is the greater consciousness of racism associated with the rights revolution. A third is a reaction against globalization. A final factor explaining the new prominence of multicultural issues is the terrible evidence of what happens when a multicultural society cannot live in peace, which we have witnessed in so many parts of the world over the past decade: Africa, the Middle East, Eastern Europe, South and South East Asia (Saundders, 2003: 33). In the changing nature of the world, there have thus developed two powerful, thoroughly interdependent, yet distinct and often actually opposed motives: the desire to build dynamic and efficient national or even supranational modern states, and the search for distinctive identities. The former is generated by the goals and values shared by most Western and non-Western societies today: a desire for progress, a rising standard of living, social justice, influence in the world arena, participation in the global economic network and a growing awareness of world-wide interdependence in an era which makes both mass destruction and mass

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construction possible. The latter arises from the desire for smaller, directly accountable self-governing political units, more responsive to the individual citizen, and from the desire to give expression to primary group attachments – linguistic and cultural ties, religious connections, historical traditions and social practices – which provide the distinctive basis for a community’s sense of identity and yearning for self-determination (Blindenbacher and Watts, 2003: 7).

I In the above context we see that the world today is witnessing a pattern of interstate and intra-state relationships with apparently two opposing trends. On the one hand, sovereign states are entering into larger regional groupings like the EEC, ASEAN and SAARC; on the other, within the territorial boundaries of each state, smaller groups based on religion, language or ethnicity are becoming increasingly conscious of their identity and rights. Today the appeal of ethnicity and religion seems to have overtaken the post-war emphasis on economic development and class conflicts as the dominant modes of political perception. Though ethnic conflict has been a persistent feature of modernity, the past few years have brought about seismic changes in it. Recurrent ethnic behaviour in many parts of the world, not least in advanced industrial societies such as the US, has been a perplexing intellectual riddle for social scientists trained to believe in the triumph of reason and universalism. According to conventional wisdom, ethnic peculiarities were to disappear and ethnic awareness was to become weak with progress. As one political philosopher points it, “It is as if west were expecting to celebrate the ultimate victory for liberal democracy but can now only stand stunned by the conflicts over ethnic origin, religion and identity, which according to their theories should be things of the past” (Mouffle, 1994: 106). The last three decades of the twentieth century, particularly, have been a period during which minority nationalist movements have multiplied and flourished. As the twenty-first century opened analysts were able to point out that the nature of human conflict had profoundly changed both in form and in subject matter. Whereas the previous century opened with interstate wars – wars between sovereign states – by the 1990s the overwhelming majority of conflicts classified as “major armed conflicts” were intra-state conflicts (Haysom, 2003: 216).

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As stated in empirical studies of conflicts involving minorities, such as the Minorities at Risk Project under the direction of Ted Gurr, the number of conflicts around the world has been increasing steadily since the 1960s. In about 190 nations, 3,000 ethnic groups are engaged in one or other form of struggle for their identity. Of course, human nature and human psychology provide the necessary conditions for ethnocentric behaviour, and such behaviour is universal.

II Progress in science and technology, uneven socio-economic development, demographic changes, intended or unintended consequences of the participatory-turned-plebiscitary electoral-political processes and widening of communication networks are some of the factors that have tended to be the catalysts of the process of social change and ethnic resurgence, though in varying degrees. Of course it is not possible to ignore the economic, social and political aspects, whether internal or external to the group, which catch individuals in a complex network of relations and determine which identity they assert. In defence of a language or a culture, there are many things other than preservation of a legal status. There is the overall existential situation of individuals. If we fail to acknowledge it, it is not possible to grasp the motivations that drive the members of the group “to this rather strange, rather mysterious activity that consists in maintaining oneself as an identifiable and distinct group” (Fenet, 1989: 24). While the forging of unity through political organization subsumes the autonomy of the individual and the sanctity of his choice in owing allegiance to whatever structures he/she prefers, there pre-exist certain socio-cultural structures which the individual is born into and shapes his/her beliefs, orientations and behaviour patterns. People invariably retain attachment to their own ethnic group and the community in which they were brought up. There is interdependence between the individual and collective processes of identity formation. Thus, individuals expect to recognize themselves in public institutions. They expect some consistency between their private identities and the symbolic contents upheld by public authorities, embedded in the social institutions and celebrated in public events. Otherwise, individuals feel like social strangers; they feel that the society is not their society (Breton, 1987: 461). For a long time one prominent conception of modernization and progress has been the emancipation of individuals from ascribed roles and identities. The transition from tradition to modernity was theorized as a unilinear

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tendency. For both liberals and Marxists in the nineteenth century, the great nations, with their highly centralized political and economic structures, were the carriers of historical development. The smaller nationalities were backward and stagnant and could only participate in modernity by abandoning their national character and assimilating to a great nation (Kymlica, 1995: 206). Enlightened rationalism gave religion a bad name: religion was false knowledge, the kind of knowledge that Voltaire, Condorcet and Comte saw as disappearing from human consciousness (Rudolph, 2008: 105). The overall assertion was that religion would fade and then disappear with the triumph of science and rationalism. But religion has expanded explosively, stimulated as much by secular global processes. Minorities in particular find solace and a sense of support in religious communities. Of course religions often provide not only the security but also the motives for cultural and conflicts between and within states. Therefore, if states want to meet the challenge of bringing or holding multicultural societies together, they must take cultural and religious diversity seriously. It should be obvious to most observers that ethnic conflicts do not go hand in hand with the presence of minorities, or to put that in a different way, it is not the presence of a religious, linguistic or ethnic minority in a state that is in itself a natural source of conflict. What is most remarkable if you think about human diversity in terms of its multitude of language, religious and cultural textures is that despite the hundreds of thousands of various “minority combinations” worldwide, there are in fact so few conflicts. Clearly, there must be a unique combination of factors under which some minority members are willing to resort to violence to advance their claims against the state, and willing to kill if necessary to achieve this aim. In this context Fernand de Varennes points out that whether democracies or not, developing or developed, states that are the scene of minority or ethnic conflicts tend to have one important point in common that with some degree of certainty can be seen as one, if not the main, root cause of many conflicts: they quite clearly did not comply in the period leading up to the conflict with what would now be recognized as international minority rights standards as enumerated in the UN Declaration (Varennes, 2000: 3). The deep-laid sources of the conflicts in most countries experiencing ethnic or minority conflicts, countries such as Chad, Spain, Sri Lanka, Sudan, the Philippines, China, Moldova, the UK, Pakistan,

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Yugoslavia, Indonesia and many others can be linked in the early periods to discriminatory practices in employment, education and other violations of minority rights as now understood in the UN Declaration. In terms of denial of rights among the most common deep-laid sources of ethnic tension found in many of these countries are the following: ƒ Exclusion from employment opportunities because of language or religious requirements, both in civil service or in private activities; ƒ Actual exclusion of members of a substantial minority from most state employment positions, especially in higher echelons; ƒ Denial of land ownership, or refusal to recognize traditional land ownership; ƒ Refusal to allow minorities to hold elected office because of language or other discriminatory criterion; ƒ Economic development projects in minority regions which benefit the majority instead of the minority; ƒ Expropriation of traditional lands without proper compensation, and/or migration programme which results in arrival of vast numbers of migrants; ƒ Refusal to use minority language in state schools and administration where warranted by substantial number of speakers of a minority language; ƒ Denial of citizenship and corresponding rights on a discriminatory basis; and ƒ Prohibition of use of minority languages, symbols or of minority religious practices in private activities. In the appropriate setting (substantial, traditional minority, with territorial basis) with one or more of these deep-laid sources of ethnic tension, you have an explosive mixture with all of the ingredients under which ethnic conflicts can occur. The only thing missing is the “spark”, the immediate event which may ignite the conflict. At this point, because states have disregarded or ignored the rights of minorities, it is almost too late to avoid a conflict unless action is taken at a very early stage, since almost any event could trigger violence. Governments no longer have control of the situation once the tensions, frustrations and anger have reached a high level. They have lost credibility amongst segments of the minority population. Being outnumbered, outvoted, discriminated against or ignored in the political system, segments of the minority come to believe that violence may be the only available tool to change the situation.

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And once you have started down the path of violence, it becomes increasingly difficult to find a peaceful solution. Positions on both sides harden, and more often than not the minority will no longer be satisfied with respect of their individual human rights. They will demand autonomy, political and legal power which they control themselves, if not outright independence. Therefore, the question of minority rights and their implementation is very important for the prevention and resolution of ethnic conflicts.

III There seems to be a clear shift in public opinion towards viewing minority rights not just as a matter of discretionary policies on pragmatic compromises, but rather as a matter of fundamental justice. Minority rights are increasingly seen precisely as “rights”, the violation of which can be an assault on basic dignity and respect (Kymlicka, 1995: 6). An important segment of the international community still considers that only individuals, and not collectives or communities, are the true bearers or subjects of human rights. The liberal tradition regards the state as the confluence of individual wills and places it above the particular interest of any specific group. John Porter suggests that the organization of society on the basis of rights or claims that derive from group membership is sharply opposed to the concept of a society based on citizenship, which has been such an important aspect in the development of modern societies. The individual makes claims as a citizen, a status common to all members (Porter, 1990: 297). It is pointed out that citizenship rights are essentially universalistic whereas group rights are essentially particularistic. Members of cultural minorities, once they attain citizenship, are entitled to equal opportunities with all other citizens. They therefore have a right to protection by laws banning discrimination, whether this may be in the labour market, the housing market or the provision of government services. Opponents of minority rights also observe that individual human rights have their basis in the common needs of all human beings, in which all people of liberal outlook can agree. However, cultural minorities rarely have common needs that are generally agreed upon by members of the larger societies within which they live. Spokesmen for the minorities may not even agree among themselves about what their needs are (Birch, 1989: 57). It is further pointed out that in contemporary democracies the expectation of citizens of equal treatment by, and access to, government can easily be in conflict with public recognition of cultural differences.

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Another question that is raised in this context is whether minority or group rights are compatible with, or complementary to individual human rights. In his 1972 Minority Rights Group lecture, Conor Cruise O’Brien said, “The culture of a group may include systematic violations of basic human rights. When we are told to respect the cultures of groups we are being told to respect things which may include for example the Hindu caste system, the treatment of women in Islam and a number of other cultures”. There are several other arguments including that there is the possibility that if minorities are given too much leeway, collective rights may lead to demands for autonomy, self-government, self-determination and even political secession or independence, which may threaten the territorial sovereignty or even the very survival of a state. To extend the argument it is suggested that in fact the idea of group rights does not serve, least of all for minorities. Some minorities are far from faultless; and of course majorities too have their rights as well as their responsibilities. This common view, according to Will Kymlica, is not only mistaken, but actually incoherent. The idea of responding to cultural differences with benign neglect makes no sense. Government decisions on languages, internal boundaries, public holidays, and state symbols unavoidably involve recognizing, accommodating and supporting the needs and identities of particular ethnic and national groups. The state unavoidably promotes certain cultural identities, and thereby disadvantages others. Once, we recognize this, we need to rethink the justice of minority rights claims. Kymlica argues that some self-government rights and poly-ethnic rights are consistent with, and indeed required by liberal justice. Kymlica will consider three sorts of arguments that attempt to defend these measures within a broadly liberal framework: equality, historical agreement and diversity. Each has some merit, although the latter two depend in part on the first.

IV An important issue to understand is that ethnocentrism is not limited to minorities. As Will Kymlica points out, in most states “government by the majority” usually means government controlled by an ethnic majority, with the consequence that minorities often find themselves excluded, disadvantaged or dominated by the majority, which controls the state machinery. The commonly-held assumption that modem democratic and typically western states are somehow oblivious of ethnic preferences and are,

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therefore, ethnically neutral is not necessarily correct. On the contrary, all states usually tend to reflect and protect to a greater extent the interests of the majority, including in some cases demonstrating definite cultural, linguistic or religious preferences. Persons belonging to minorities, therefore, find themselves in a double dilemma: they have interests in the electoral process and the political sphere; persons who belong to minorities tend to be outvoted and under-represented. Minorities tend, therefore, to suffer disproportionately from a “democratic deficit” in terms of numbers and influence in many if not most political systems (Varennes, 2000: 12). Despite the success of most western democracies in providing formal institutions of political justice for their citizens, it remains distressingly clear that some groups within these polities have not experienced the same level of social or material (and sometimes even political) benefits enjoyed by the dominant groups within the same societies. The fact that some groups have statistically remained relatively disadvantaged in the face of ostensibly fair and neutral principles has increasingly led theorists to question whether it is our perception of what constitutes “fair and neutral” which has reaccelerated the marginalization of certain identifiable groups. Democratic justice, according to this rethinking, Fierlbeck points out, entails the establishment of different rights for certain groups based upon the existence of a distinct culture or sociological reality. The normative force of this approach rests upon the argument that what is essential to foster and protect the identity (understood philosophically as a strong sense of selfhood that is worthy of respect) of individuals within such groups cannot be guaranteed through the universal liberal rights generally espoused by western democracies. Rather, this conception of identity or selfhood depends, in its own way, upon certain cultural values and practices the protection of which may violate what may consider to be universal human rights (Fierlbeck, 1996:3). To respect individuals within distinct cultural groups may in this way require differential rights; rights which protect cultural or group-specific traditions and institutions prior to the uniform rights propounded by the proponents of a more traditional democratic liberalism. Nigel S. Rodley quotes an important observation by Anatole France made in 1894, in this context: “the law’s majestic equality, which forbids the rich as well as the poor to sleep under the bridge, to beg in the streets and to steal bread”. In this telling phrase, he captured the perennial tension between form and substance in law. The aphorism demonstrates the reality that a neutral norm applied to parties in an unequal condition can have an unequal effect. That unequal effect may be

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intentional or accidental. But it is real, and once it is consciously perceived, is apt to generate a profoundly alienating sense of injustice. High-sounding principles can have the ring of hypocrisy in their application. It may be hazarded that no single factor was more potent in the Marxist debunking of concepts such as the rule of law and human rights as mere “bourgeois legality” than this disparity between normative rhetoric and practical reality (Rodley, 1993: 50). Stavenhagen points out that in a rapidly changing world where nation-state ideologies are political imperatives, where the mass media and worldwide communication systems can penetrate even the most isolated villages or the most closely knit communities, minority cultures are frequently undermined by social and economic forces beyond their control and beyond the control of even the most sympathetic of governments. Therefore, if minority cultures have any role to play in the contemporary world, then their rights must be actively fostered and not only passively and reluctantly protected (Stavenhagen, 1990: 72). Universal human rights are not enough and, without specific provisions obligating states not only to abstain from interfering with the collective rights of minorities but also to provide active support for the enjoyment of such rights, minority groups will always be disadvantaged within the wider society. Of course, the foundational principles of human rights must at all times be respected in the process. One of these foundational principles is that of non-discrimination between individuals. The state is obliged to respect and ensure to every person within its territory and subject to its jurisdiction without discrimination on any ground including race, ethnicity, religion or national origin, the rights contained in the instruments to which that state is a party (Eide, 2000:2). It is in the light of these principles that minority rights are to be appreciated. Another point is that as a group, a minority possesses an internal life structured by its own relationships of forces. This practical regulation of social life on the vital bonds of unity makes the minority a juridical order. This order may be loose, but it still exists so long as effective representations of the unity in images of authority subsist (Fenet, 1989: 26). Therefore, both individual and collective human rights derive from the fundamental nature of humankind as a species. Individual human rights represent the principle of biological unity, the oneness of all human beings as members of humankind. Collective human rights represent the principle of cultural diversity, the distinctiveness of the diverse ethno-

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cultures developed by different ethnic groups within the human species. Together individual and collective human rights represent the twin global principles of human unity and cultural diversity. As specified in the International Bill of Human Rights and related covenants, protections for individual and collective human rights essentially represent international moral guidelines, the global standards to which the laws of ratifying states should conform. What this means is that human rights principles are prior to law: laws themselves may violate or endorse them. When laws endorse human rights principles, then human rights become legal rights that can be claimed by individuals or groups who can provide evidence to show that their human rights protection allows those whose rights have been violated to bring forward claims for legal redress and recompense (Kallen, 1990:77). Equally important is the fact that conflict and tensions are inherent in society and so are differences in individuals and cultures. A fundamental state obligation under international human rights norms is to eliminate discrimination, not to destroy all differences. Recognition of the right to personal autonomy and group identity is essential to ensure that the principles of self-determination, participation and tolerance are allowed to flourish (Hannum, 1990: 476).

V It is in this background that – though initially United Nations deliberations did not feel the necessity of declaring Rights of Minorities – through various deliberations and studies the sub-commission on Prevention of Discrimination and Protection of Minorities recommended that a declaration on the rights of members of minority groups be drafted within the framework of the principles set forth in Article 27 of the Covenant on Civil and Political Rights. Finally on 18 December 1992, the UN General Assembly adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The basic principle behind “collective human rights” is the right of ethnic communities as collectivities to legitimately and freely express their cultural distinctiveness. The distinctive elements of ethno-cultures may be expressed in language, religion, politico-economic design, territorial links or any combination of these and/or other defining group attributes. Article 8 Para 94 of the declaration, however, makes it clear that nothing in the declaration may be construed as permitting any activity contrary to the purposes and principles of the UN, including sovereign equality, territorial integrity and the political independence of states. Thus, minority rights are

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by no means there to encourage separation or secession. On the contrary, they are there to provide guidance on the linguistic, religious and cultural elements in state practices that have to be understood and in some cases tempered in order to find the necessary balance to prevent ethnic conflicts. At a theoretical level, what is required is to come out of the traditional liberal paradigm, according to which the individual is the ultimate bearer of rights and unity of moral worth, as he or she is the ultimate agent of action. From this perspective, groups are viewed as aggregation of individuals. Consequently, cultural rights for minorities can ultimately be understood solely as individual rights. This perspective, as Schutle Tenckhoff points out, is generally described as methodological individualism. A variant of this view more open to group rights, especially cultural rights, is termed consequential individualism. The most sophisticated recent version of consequential individualism is expounded by Kymlicka, who sets out to make room for the idea of collective rights “within the moral ontology of liberalism”. According to him, we need to distinguish two kinds of claims that an ethnic or national group might make. The first involves that claim of a group against its own members; the second involves the claim of a group against the larger society. Both kinds of claims can be seen as protecting the stability of national or ethnic communities, but they respond to different resources of instability (Kymlicka, 1995: XII). In conditions of cultural pluralism and of lack of co-extensivity between cultural and political community, he writes, the liberal principle of equal respect for persons sometimes requires the recognition of collective rights for the protection of cultural groupings. This entails a consociational – rather than universal – mode of incorporating the individual into the liberal state, which means that the nature of each person’s rights varies with the particular community to which they belong (Tenckhoff, 1997: 7). Minority protection, therefore, is important and this protection is based on four requirements: protection of their existence, non-exclusion, nondiscrimination, and non-assimilation. A corollary of non-assimilation is to protect and promote conditions for the group identity of minorities. As Eide (2000: 5–6) points out, identity is essentially cultural, and requires not only tolerance but a positive attitude of cultural pluralism by the state and larger society. What is required is not only acceptance but also respect for the distinctive characteristics and continuation of minorities in the life of national society as a whole. Protection of the identity means not only that the state shall abstain from policies which have the purpose or effect

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of assimilating the minorities into the dominant culture, but also that it shall protect them against activities by third parties which have such assimilatory effect. Crucial in these regards are the language policies and the educational policies of the state. Denying minorities the possibility to learn their own language or instruction in their own language, or excluding from the education of minorities transmission of knowledge about their own culture, history, tradition and language, would be a violation of the obligation to protect their identity. Promotion of their identity requires special measures intended to facilitate the maintenance, reproduction and further development of the culture of the minorities. The measures required to achieve this purpose are minority rights. It may be made clear here that espousing of identity-based rights is not to suggest the exclusion or importance of individual rights. On the contrary, as Charles Taylor, Will Kymlicka and others argued, clearly defined and respected cultural groupings are required to have a strong feeling of personal identity. Taylor builds his argument for the recognition of people’s particularities upon the principles of equality and dignity, both cornerstones of liberal thought. To be equal members of any society, not only must people have equal rights but their identities must be given equal value. And as our ethnic background informs these identities, our cultural heritage cannot be ignored or scorned without damaging our sense of personal dignity. Kymlicka suggests, “The liberal value of freedom of choice has certain cultural preconditions” and thus “issues of cultural memberships must be incorporated into liberal principles”. The task before statesmen, therefore, is to understand the dynamics of ethnicity in relation to other social forces and to build a national identity and consciousness out of the various ethnic and national traditions that make up the state totality. Recognition and sincere implementation of minority rights in this regard is a very significant mechanism. This, of course, does not mean conflict with the rights of individuals or with the principle of non-discrimination. As far as conflicts between various categories of rights are concerned it may be mentioned that in any society there can be conflicts of rights or rather disputes on the boundary between one right and another, for instance, freedom of expression and right to privacy, or freedom of assembly and freedom of movement. There may even be potential conflicts within a given particular right: a given religion may deny the right inherent in the notion of freedom of religion, to change one’s religion or have no religion. Measures to redress the legacy of racial or gender discrimination may appear to involve such discrimination. The

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solution therefore is not rejection of one group of rights. Of course in case of minority rights, there are problems such as how to reconcile the demand for the provision of special rights for members of minority groups with the principles of non-discrimination and equality under law. The second is how to reconcile special arrangements for minority groups with respect to the individual human rights or members of the minority. The third is to reconcile such arrangements with respect to the rights of minority within the minority (Rodley, 1993: 49). As already mentioned, these problems can be solved and reconciled. The point, as such, is not of conflict between rights or discrimination against citizens but is that of giving minorities confidence in the protection of their identity.

References Benneth, Clinton (1998). “Religious Monitories: Challenge or Threat”, paper delivered at the National Coalition for Religion Freedom Conference, Berlin, May. Birch, Anthony H. (1989). Nationalism and National Integration. London: Unwin Hyman. Blindenbacher, Raoul and Watts, Ronald L. (2003). “Federalism in a Changing World: A Conceptual Framework” in Raoul Blindenbacher and Arnold Koller (eds.). Federalism in a Changing World: Learning from Each Other. Montreal and Kingston: McGill Queens University. Breton, Albert (1987). "Expenditure Harmonization in Unitary, Confederal and Federal States," European Journal of Political Economy, Elsevier, Vol. 3 (1-2). Eide, Asbjorn (2000). “Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities”, Working Paper, UN Sub Commission on Promotion and Protection of Human Rights E/CN 4/Sub 2/AC 5/. Fenet, Allain (1989). “The Question of Minorities in the Order of Law” in Geral Chatiand (ed.), Minority Peoples in the Age of Nation States. London: Plato Press, and Delhi: Ajanta Publications. Fierlbeck, Katherine (1996). “The Ambivalent Potential of Cultural Identity”, Canadian Journal of Political Science, March. Hannum, Hurst (1990). Autonomy, Sovereignty and Self Determination: The Accommodation of Conflicting Rights. Philadelphia: University of Pennsylvania Press. Haysom, Nicholass, R.L. (2003). “Constitution Making and Nation Building” in Raoul Blindenbacher and Arnold Keller (eds.) Federalism

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in a Changing World: Learning from Each Other. Montreal and Kingston: McGill Queens University. Isajiw, Wsevolod, W. (1999). Understanding Diversity: Ethnicity and Race in the Canadian Context, Toronto: Thompson Educational Publishers. Kallen, Evelyn (1990). “Ethnicity and Human Rights in Canada” in Peter S. Lie (ed.), Race and Ethnic Relations in Canada. Toronto and Oxford: Oxford University Press. Kymlicka, Will (1995). Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press. Mouffle, Chantal (1994). “For a Politics of Nomadic Identity” in George Robertson et al. (eds.), Travellers’ Tales: Narrative of Home and Displacement. London: Routledge. Porter, John (1990). “Ethnic Pluralism in Canadian Perspective” in Nathan Glazer and Daniel P. Mohanihan (eds.), Ethnicity: Theory and Experience. Cambridge, Mass.: Harvard University Press. Rodley, Nigel S. (1993). “Conceptual Problems in the Protection of Minorities: International Legal Developments”, Human Rights Quarterly, 17. Rudolph, Lloyd I. and Rudolph, Susanne Hoeber (2008). Explaining Indian Democracy: A Fifty Year Perspective, 1956–2006, The Realm of Institutions – State Formation and Institutional Change, Volume II. New Delhi: Oxford University Press. Sen, Amartya (2006). “The Uses and Abuses of Multiculturalism”, Indian Journal of Secularism, Vol. 10, No. 2. Saundders, Cheryl (2003). “Federalism, Decentralization and Conflict Management in Multicultural Societies”, in Raoul Blindenbacher and Arnold Keller (eds.) Federalism in a Changing World: Learning from Each Other. Montreal and Kingston: McGill Queens University. Stavenhagen, Rodolfo Y. (1990). The Ethnic Question: Conflict, Development and Human Rights, Tokyo: United Nations University Press. Tenckhoff, Schutle (1997). “The Right of Persons belonging to Minority to Enjoy Their Own Culture”, Commission on Human Rights SubCommission on Promotion and Protection of Human Rights, Working Paper for Working Group on Minorities, E/CN 4/Sub 2/AC 5. Varennes, Fernand de (2000). “Minority Rights and Prevention of Ethnic Conflicts”, Commission on Human Rights, Sub-Commission on Promotion and Protection of Human Rights, Working Paper for Working Group on Minorities, E/CN 4/Sub 2/AC 5.

CHAPTER EIGHT “REPRODUCTIVE TOURISM” AND THE WOMEN’S MOVEMENT IN INDIA: A HUMAN RIGHTS PERSPECTIVE DIPTI TRIPATHI

Abstract This paper explores the status of reproductive health rights, and the resulting women’s movement in India, particularly in the wake of recent advances in the technological market for assistance in reproduction. The study looks into the growing globalization of reproduction, vis à vis the cross-border trade of reproductive labour through commercial surrogacy and egg donation, unethical practices by ART clinics, unregulated increase in IVF clinics and research centres, and the increasing violation of human rights issues in India. The study occupies an exploratory methodology of researching. The researcher has deliberately avoided, as for as possible, tables and graphs, and has tried to engage with ideas and activism exploring the context and subject.

Introduction Years ago western industrialization set the platform for modern scientific and technological development. Market economy, capitalism and commodity culture since then has dominated the global trend of advancement. It may be a debatable issue how devastating the consequences of the same have been and in what ways; perceptions may differ drastically. However, when it comes to reproductive and sexual health issues it is accepted that recent technological development in this field has completely altered the social perception of reproduction, family, motherhood, parent–child relations, human inheritance, infertility and associated matters. Especially in the later decades of twentieth century, reproduction has very rapidly become a part of the health technology

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industry. Medical assistance in reproduction has been in existence in one form or another in almost all cultures through the ages, addressing the social, cultural and health-related issues of the community (Raina, 1990). However, developed as a part of the medico-technical industry, the primary focus and orientation of contemporary reproductive technologies has been prioritized for profit. These reproductive technologies are made more glamorous with the growth of the Assisted Reproductive Technology1 (ART) industry in recent years. The idea behind the development of ART was to offer a service for those who want children but for various reasons cannot have them in the natural way and who for various reasons do not want to adopt. But it proved, conversely, to be a boon for medical capitalism. Recent statistics show that ART is becoming a thriving industry in India and the numbers of ART clinics are multiplying (Sarojini, 2010: 46).2 The Eighteenth Law Commission of India has admitted in a report that the ART industry is worth 25,000 crore rupees and has recognized the field as a multi-billion dollar medical industry (Law Commission of India, 2009: 11). This report has acknowledged India as a “reproductive tourism destination” and has admitted that the “wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers” (2009: 9). India is becoming a “preferred destination” offering the latest high-cost reproductive technologies at lower prices. Not only are ART services less expensive in this country, the third world rate of “monetary compensation”3 of surrogates and their easy availability also facilitates “reproductive tourism”.4 Besides, the law of the land has also not been seriously drafted on this issue; rather there is a “total absence of law”5 in this regard. The women’s reproductive health movement in India perceives the current situation as alarming. The movement has been active with its agenda of advocating gender-sensitive reproductive health policies and women’s stake in family planning discourse with a rights perspective, particularly from the 1980s. This movement has also established milestones in its journey of fighting against “hazardous contraceptives” and “coercive population control policies” by the government of India.6 Currently, the movement is engaged in conceptualizing its position on the latest issue of offering assistance in reproduction through state-of-the-art technologies, with human rights and feminist understanding. Since ARTs address the right of a couple to have biological progeny with the assistance of

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technology, the debate on ARTs primarily seeks to examine their compatibility with the idea and notion of human rights.

Research Methodology An exhaustive survey of key national as well as international documents relating to women’s reproductive health rights issues is undertaken in the research. A careful, comprehensive and systematic exploration of relevant policy papers, legal documents (including health and medical laws) and women’s rights-based social legislation, and of other existing literature available in various books, journals, newspapers, brochures and organizational papers, is also undertaken. The research also analyses advertisements for ART industries and IVF clinics and related website advocacy regarding reproductive tourism and growing techno-medical commercialization. The draft ART (Regulation) bill 2010 is reviewed to determine the present legal framework in the field. To study the position of the Indian women’s movement on the issue of ARTs with a human rights perspective, the cases of some of the leading national organizations and groups which are participating significantly have been studied. Some of the prominent women’s organizations in this category are Sama, Saheli and Cehat. To understand their agenda and concerns on this issue, unstructured interviews and talks were conducted with some of the activists, particularly in the case of Saheli. The positions, strategies, agendas, advocacies and actions of the other organizations have been reviewed and analysed carefully as expressed and outlined by them on various platforms through various sources and channels.

Are Reproductive Rights Basic Human Rights? The year 1978 proved to be very fruitful for the ART industry all over the world, and especially for India. This year witnessed the birth of two IVF babies, the first in Britain and the second in India. The eagerness of the Indian techno-medical fraternity in this field is quite noticeable as the world’s second In Vitro Fertilization (IVF) baby Kanupriya/Durga was born in Kolkata on 3 October 1978 just 70 days after the birth of world’s First IVF baby, Louise Joy Brown, born on 25 July 1978. Thenceforth, the market of assisted reproductive technologies started booming rapidly, though also encountering a number of controversies. These controversies are related to the reproductive health and rights agenda of the women’s movement.

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In fact, the concept of reproductive rights is multifaceted and transdisciplinary, involving medical, legal, ethical, cultural, social, moral and other challenges as well as dialogues. In the wake of recent advances in technology and changing patterns of “reproductive tourism” in India, the question of human rights has become very complex and stimulating. The growing globalization of reproduction vis-à-vis the cross-border trade of reproductive labour through commercial surrogacy and egg donation, unethical practices by ART clinics, the mushrooming of IVF clinics and research centres and increasing harmful medical tourism, have stimulated the dialogue on the violation of human rights among feminist forums and human rights groups in India. Health is universally specified as a fundamental human right, and reproductive rights too have been recognized by the World Health Organization as one of the basic human rights. The Universal Declaration of Human Rights 1948 had acknowledged, though in an unspecified manner, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family” (Article 16.1). Exploring the Indian legal framework in this context one finds the Law Commission of India acknowledging the recognition given by the Indian Judiciary to reproductive rights in this country as a basic right (Law Commission of India, 2009). The Law Commission report also cites some of the cases being dealt with in Indian courts in which the idea of reproductive rights as human rights has been legally supported and reinforced.7 Nevertheless, it is evident that the legal framework specified for reproductive rights in this country has a very limited extent. The International Conference on Population and Development (ICPD) Programme of Action, Cairo (1994) had formally recognized reproductive rights as “the rights which embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents”.8 However, in spite of various provisions, guidelines, and schemes at international and national level, reproductive rights in India continue to be a complicated issue within the field of women’s rights. A study on Health Care Case Law in India jointly by CEHAT (the Centre for Enquiry into Health and Allied Themes, Mumbai) and ICHRL (the India Centre for Human Rights and Law, Mumbai) in 2007 concludes after examining the judgments in different reproductive health care cases in India that there is no uniform policy in this area. It also highlights the possibility of many

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unreported cases of negligence in the area of reproductive issues. Further, the study also establishes that the central and state governments in India have not come up with any concrete policies regarding the reproductive rights of women. A huge gap is perceived in recognizing the rights of women even to safe pregnancy, sterilization and abortion. The attitude of the Indian judiciary towards the issue of reproductive health rights has been observed as being gender insensitive, according to the same study (Hiremath and Mahabal, 2007: 127–38). The legal framework in India is very ambiguous and there is an urgent want of a well formulated act explicitly dealing with the reproductive rights of the people in general and women in particular. However, currently a cluster of legal acts, rules and provisions are available indirectly addressing to the reproductive and sexual health rights issues. Some of them are the Medical Termination of Pregnancy Act and Rules, the Pre-Natal Diagnostic Techniques (PNDT) Act and Rules, the Maternity Benefit Act and Rules, the Drugs and Cosmetics Act, 1940, the Pharmacy Act, 1948, the Transplantation of Human Organs Act and Rules, and the Consumer Protection Act and Medical Profession.

Reproductive Health Rights Movement in India I. Women’s Stake in Reproductive Technology: “Contraceptive to Conceptive” Dialogue The question of reproductive self-determination in India is becoming more relevant with the advancement of reproductive technology and growing medical tourism. A subject of continuous and immense discourse among feminist forums and human rights groups has been whether advancement in reproductive technology is empowering women by providing them a variety of alternatives and choices to design and shape their reproductive performances or it has become a tool to meet the demands of patriarchal norms and capitalist requirements of society. The perception varies to a remarkable extent. The global reproductive rights framework addresses two significant aspects, viz., everyone’s right to reproductive healthcare and reproductive self-determination. In the case of India, while exploring the public health policy it becomes evident that the first aspect has been only nominally protected by the legislation, and that too quite ambiguously, but the other one (reproductive self-determination) is completely neglected.

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Beginning in the 1980s, the agenda and action of Indian women’s reproductive health and rights movement had been quite focused and determined. The government promotion of hazardous contraceptives and formulation of coercive population control policies were the issue of debate.9 The movement campaigned against the biased research agenda of women-centric, gender-insensitive reproductive technologies leading to the introduction and promotion of harmful contraceptives, especially injectables and implants such as E.P. drugs, Net-En, Depo-Provera, Norplant, Quinacrine, anti-fertility vaccines etc. Besides, unethical research and test trials, lack of informed consent, government incentives and disincentives based population policies, inadequate medical infrastructure and the unaccountability of drug agencies as well as health services were some other prominent issues in the debate by the women’s movement in India.10 Although artificial reproductive mechanisms and technology that facilitates conception was also included as one of the issues of the women’s movement in India, the shift in the movement from contraceptive to conceptive technologies has more explicitly been realized since the first decade of the twenty-first century. Hence, with regard to ARTs which have been understood as the umbrella term for all conceptive technologies available in this country, it is too early to conceptualize any dominant trend of the women’s movement, as the approaches of activists and human/women’s rights groups vary quite significantly. One of the leading organizations working in this field, Sama, has admitted that “there has not been any systematic engagement on the part of the ongoing movements in the country regarding this issue” (Sama, 2006: 99).11 Therefore the official position of the movement on ARTs has yet to be formulated. However, at the same time one witnesses the emergence of different dialogues from various groups of human rights activists, women’s rights advocates, and anti-capitalist social-political bodies in recent years. The major ideological position adopted by the movement is against the patriarchal and consumerist/capitalist pattern of development which enslaves women by technological choices.

II. ARTs and Human Rights The latest Assisted Reproductive Technologies encompass a variety of technology based methods and procedures. Most popular among them are In Vitro Fertilization (IVF), Intra Uterine Insemination (IUI), and Intra

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Cytoplasmic Sperm Injection (ICSI) (Sama, 2006: 4), popularly known as “test tube baby technology” and “surrogacy”. It was predicted that medical tourism would be a $2.3 billion industry by 2012, just next to the information technology sector (Puri and Kapadia, 2006). India is becoming a world centre for cheap ART services, where “first world technology” is available at “third world rates”. There is no exact law governing ART in this country, and the ART Regulation Bill 2010 has yet to be discussed in Parliament for further decision; however, commercial surrogacy has already been made legal in this country. Sama, Cehat, Saheli and other likeminded non-government organizations may be identified as some of the leading women’s groups campaigning on the issue of ARTs in India. With a central position in the latest movement on ARTs, their methodology is more academic and research oriented. The current position can be seen as the early phase of movement-building, and the stand is to be shaped up and streamlined on a definite and wellresearched foundation of the issue. However, the upcoming voices from the movement advocate for certain non-negotiable as well as essential ingredients to be assured in ART legislation. The major demand is to safeguard the health and rights of the women undergoing ARTs. A high degree of concern is also expressed for the rights of the child born from these technologies. The way infertility is thought of as a “disease” by the ART industry as well as government, legal and ethical loopholes, the growing consumerism of fertility clinics, the commercialization and commoditization of women’s reproductive organs and functions, rising demand for designer babies, market oriented public health policies, unregulated increase of IVF clinics and the resulting fast pace of reproductive tourism in this country have been prime concerns of the movement (Sama, 2010: 2) to be addressed with a human rights perspective. Although the ICPD Programme of Action states that reproductive health services should include “prevention and appropriate treatment of infertility”,12 the issue of infertility has not been addressed comprehensively under the public health policy of the government of India. While the government is aiming to drop the total fertility rate of the country significantly, it has neglected even to calculate the rising incidence of infertility. There is a lack of evidence of the level and pattern of infertility in India. The reproductive health policy of India does not include adequate treatment and counselling services for infertility. Although infertility

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treatment is available in government hospitals, there is often poor coordination between gynaecologists, infertility specialists, surgeons and laboratory technicians (Widge, 2002: 68). Probably for the first time, the issue of infertility has been addressed by the women’s movement with a more audible voice in the context of ARTs.13 With the mushrooming of ART services in India claiming to “cure” the “disease” of infertility, the question of human rights has acquired a new space in the Indian women’s reproductive health movement. Interestingly, the Law Commission’s report acknowledges infertility as a “huge impediment”, which “can not be overlooked” in a “patriarchal society like India” (Law Commission of India, 2009: 9). The report also says that “a woman is respected as a wife only if she is mother of a child, so that her husband’s masculinity and sexual potency is proved and the lineage continues”. On this basis the commission has recognized the growth of ART methods including surrogacy as a “supreme saviour”.14 The projection of infertility as a disease, by the government and ART services providers, has been widely criticized by the women’s and human rights movements, since it establishes the misleading opinion that people with infertility are basically sick and disabled and they should be considered as patients. It also victimizes women, increasing the social stigma of inability to have a biologically belonging child.15 These prohuman rights individuals unearth the exploitative and human rights violating nature of the ART industry. They argue that to promote this medical industry, infertility has been portrayed as a “disease”, which is to be “cured” by technological intervention. A hype of the “thrust for motherhood” has been created by ART industry in the same way as other commercial industries do to generate demand for their product. The movement perceives such an approach as reinforcing the gender role of motherhood as compulsory by increasing the societal taboo of childlessness in the Indian context. A 2006 study by Sama reveals how increasing commercialization of the ART industry in India has severe implications for women, visualizing women’s bodies as a mere commodity, which is ready to receive and test the available technologies for baby farming! The movement criticizes the marketing strategies adopted by fertility clinics, especially in India, to promote reproductive tourism. Sama has revealed how print, electronic, and web media have been utilized to generate a wider international client group for ARTs.16 Women’s groups have highlighted how this industry

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has evolved a complete consumerist mechanism, first creating a demand and then supplying their product to trap the customer.17 The extremity of these marketing tactics is well expressed in the following advertisement by one of the clinics: See Taj Mahal by the moonlight while your embryo grows in a Petri dish, or Stay in five-star apartment suite while you undergo hormonal treatment cycles.18

The government’s apathy about this is shown by the absence of a stringent uniform rule and process for the registration of ART clinics in India. Regulations on the marketing and advertisement strategies of the industry, as well as the services delivered by them, are far off. The women’s movement has disparaged as well as challenged the dealings in reproductive organs, functions and processes as commodities by the ART industry. The projection of reproductive body parts, such as sperm, ova, eggs, uterus and others as objects of sale and purchase has been discredited. In this regard, it is significant to note that the Indian Transplantation of Human Organs Act, 1994 was established as “an act to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto” (Transplantation of Human Organs Act, 1994: 1). Besides, this act also determines punishment for commercial dealings in human organs.19 However, due to the government’s unaccountability for reproductive rights issues, and in the absence of a direct act or law in this area, any legal provision remains only a mockery. The issue of surrogacy20 has been considered as more complex by this movement. In India surrogacy is legitimate because no Indian law prohibits it. But the human rights of the surrogate as well as the child to be born are at stake. It is a matter of philosophical discourse whether human rights start after birth or at conception (and, if the latter, how this upcoming ART industry is going to address the rights of the baby). The question still remains unanswered: if the right to life is a fundamental human right then what about the right to choose whether birth is to be natural or artificial? Issues such as the child’s right to family (in the case of gay couples or individually commissioning persons), motherhood (in case of surrogacy), and parental lineage (in case of gamete donor) are at stake.

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The new ART Regulation Bill 2010 states that a baby born through ART will have the right to know about his/her genetic parent after attaining adulthood at the age of 18, which is contradictory to the rule of privacy guaranteed to the surrogate.21 Critics have also pointed out that surrogacy is promoting commoditization of human life leading to baby manufacturing. Not only this, it is also breaking the bond between the mother and child and replacing it with legal relations made on paper, as the bill states that “a surrogate mother shall relinquish all parental rights over the child”.22 Further, according to the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics, the surrogate mother cannot be considered as the legal mother of the unborn and the birth certificate is to be made in the name of the genetic parents (National Guidelines, 2005: 63). Even the Law Commission of India has also advocated that the birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only (2009: 26). Besides, it is observed that commercialization of surrogacy has promoted reproductive tourism, where women from socially and economically marginalized sections from underdeveloped countries, like India, are making their bodies available as a commodity to sell in the surrogacy market for money.23 Besides, the fertility clinics as well as ART Banks in India operate in a legal vacuum, thereby leaving the field clear for touts and middlemen (Fertility Industry, 2012). The human rights movement has also raised some other serious ethical issues such as the desire for preparing a designer baby with the assistance of ART. It has been observed that donors with athletic physique and “culturally approved good looks” are preferred by the commissioning party. Especially in the Indian context “acceptable” caste and religion of the donor are emphasized because of existing social taboos.

Conclusion The last quarter of the twentieth century, with the birth of the first IVF baby, added a new phase to the history of human reproduction. The genesis and development of ART as the major trend in this phase has been dealt with in two ways – both cherished and criticized. Although it is believed that the new technology has given the infertile couple new hope and happiness, the introduction of assisted reproduction in the existing medical domain has posed immense challenges to health care services,

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particularly in developing countries. Some of the major challenges in this area are related to the socio-cultural and ethical aspects such as the issue of third-party reproduction, the commoditization of reproductive organs and functions, inhuman health-consumerism making consumers passive recipients, psycho-social and human-rights related issues and the like. The unresolved technological issues in ARTs causing major health risks to the mother (surrogate) and the child are other points of concern. Besides, ARTs have also brought the issue of gender and gender roles to the fore front. Not only these, one of the most prominent concerns in this field is about the status of legal framework. The laws on ART are not only poor but rather absent. The policies are often gender biased. The privatization of health systems due to almost internationally adopted neo-liberal agendas has facilitated the practice of “reproductive tourism” in India and there is an urgent need to use human rights advocacy to address this issue and also to promote the individual sexual and reproductive rights in this field. However, as a welcome note, discussions and debates are initiated by the pro-human rights groups in different movements and forums at national, regional and international levels. They are researching on ARTs with a trans-disciplinary approach questioning their viability for safeguarding the human rights of the individual, publishing their reports and findings, writing columns in newspapers, magazines and journals. Some of the groups are organizing workshops, trainings and consultations on ART and related issues. They are also creating dialogues with the policy and guideline makers as well as suggesting research inputs in drafting ART and related policies and guidelines.24 These human rights and women’s groups are also creating a platform for public discussion and advocacy on ARTs. They offer critiques of the draft ART Regulation Bill 2010 and are pointing out the loopholes and gaps, so that it can be made more stringent and gender sensitive.

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Notes 1

The Assisted Reproductive Technologies Draft (Regulation) Bill 2010 defines ART as “all techniques that attempt to obtain a pregnancy by handling or manipulating the sperm or the oocyte outside the human body, and transferring the gamete or the embryo into the reproductive tract”. However, women’s health rights activists perceive assisted reproductive procedures as more than mere technology, having deep roots in existing social arrangements and power relations. They identify specific social contexts for their development, practice and propagation, and consider that the created essentiality of motherhood and biological progeny, as well as the social stigma associated with infertility, provide an impetus for developing the ARTs as a major industry. 2 The growing number and proliferation of ART industries in India was admitted during the International Consultation on Commercial, Economic and Ethical Aspects of Assisted Reproductive Technologies (January 2010), organized by Sama – Resource Group for Women and Health, in New Delhi to discuss the “interaction of ARTs with poverty, business and commerce, religion, patriarchy, and caste in various contexts around the globe; to unravel the process through which the proliferation, standardization and reutilization of ARTs is taking the shape of an industry; to learn from the experiences of regions where these technologies are more advanced, and anticipate the trends to come in countries where these technologies are catching up; to know what strategies have been developed by activists and groups working on these concerns and their challenges and outcomes; to understand the differential perspectives of governments towards ARTs across the globe, the roles assumed by them in dealing with these technologies, and the underlying reasons for these” (Sarojini, 2010: 3). 3 Assisted Reproductive Technologies (Regulation) Bill – 2010, Chapter VII, Rights and Duties of Patients, Donors, Surrogates, and Children, 34/3, Rights and duties in relation to surrogacy. 4 “Reproductive tourism” (also known as “fertility tourism” or “procreative tourism”) has been defined as “the travelling by candidate service recipients from one institution, jurisdiction or country where treatment is not available to another institution, jurisdiction or country where they can obtain the kind of medically assisted reproduction they desire’ (Pennings, 2002). “Reproductive tourists” are also defined usually as infertile individuals and couples who travel across national and international borders with the intention of receiving medical advice, assisted reproductive technology (ART) treatments, and, in some cases, donor gametes, embryos, or surrogacy services (Inhorn and Patrizio, 2009. 5 “Law Silent on Protecting Rights of a Surrogate”, The Hindu, 24 March 2012, http://www.thehindu.com/news/cities/Hyderabad/article3213040.ece, cited in Thapa, 2012. 6 For the history of reproductive health movement in India, see Hodges, 2006; Sarojini, 2006; Khullar (2005); Sarojini (1996); Ramasubban and Shireen (2000); Berer (2000). 7 For instance, the case where the Andhra Pradesh High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” in B.

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K. Parthasarthi v. Government of Andhra Pradesh, and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahoma, which characterized the right to reproduce as “one of the basic civil rights of man”. In another case, Javed v. State of Haryana, the Supreme Court upheld the two living children norm to debar a person from contesting a Panchayati Raj election but it refrained from stating that the right to procreation is not a basic human right (Law Commission of India, 2009: 11–12). 8 The ICPD further states that these rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and also the right to attain the highest standard of sexual and reproductive health. It includes their right to make decisions concerning reproduction, free of discrimination, coercion and violence, as expressed in international human rights documents. 9 For the agenda of the women’s reproductive health movement, see Sarojini and Murthy, 2005; Indian Journal of Medical Ethics, Vol. XIII, No. 1; Sarojini, 2001; Laxmi, 1998; Das, 2003; Das, 2006; Mehta, 1994; Menon, 1994; Sama (2005). 10 For prominent issues of reproductive health campaign see Sarojini, 2006; Mehta, 1994; Contraceptives, 1995; Menon, 1994. 11 Sama has noted the opinions of the activists from the women’s movement, reiterating that “ARTs never became a women’s issue in the way hazardous contraceptives and sex-selection had, because whereas coercive population policies and hazardous contraceptives affect almost 90 per cent of the population, only about 10 per cent gets affected by infertility and even lesser by these techniques.” Some of the main reasons or justifications for a lesser degree of involvement with ARTs that came up in the course of Sama’s discussion on this issue include “(i) Prevalence of the technologies were not wide, (ii) Concentrated in the urban sector, (iii) Primarily in the private sector, (iv) Given its epidemiology only 5 per cent people suffer from the problem of infertility. Some activists also stated that ARTs never became a campaign issue because they were provided by private clinics and were away from the public eye. Besides various factors from within the movement, certain external factors (market forces) have also played an important role in marginalizing the issues of ARTs in the women’s movement” (Sama, 2006: 99– 100). 12 Infertility is the inability to conceive a child. Webster’s New World Medical Dictionary (2008) defines infertility as diminished or absent ability to conceive and bear offspring. A couple is considered to be experiencing infertility if conception has not occurred after 12 months of sexual activity without the use of contraception. Infertility can have many causes and may be related to factors in the male, the female or both. Treatments can include medications and assisted reproductive technologies. Measuring infertility is quite difficult due to the vagueness and varying nature of its definitions. The World Health Organization (WHO), using a two-year reference period, defines primary infertility as the lack of conception despite cohabitation and exposure to pregnancy. Secondary infertility is defined by WHO as the failure to conceive following a previous pregnancy despite

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cohabitation and exposure to pregnancy (in the absence of contraception, breastfeeding, or postpartum amenorrhoea). 13 Although Widge (2002) has stated that the voice of the childless woman is absent in the feminist and policy debates surrounding reproductive technology in India, and infertility seems to be a relatively unimportant issue, as it affects only a few couples in an “overpopulated” country, hence neither the issue of infertility nor the implications of ART are given any value. However, this can be debated as the growing concern of women’s movement towards the issue of infertility and the social stigma attached to it, considering it as re-victimizing women in India, is getting significant space in recent discourse (Sama, 2006: Chapter 3, Section 3 “Infertility”). 14 Justifying the pretext of ARTs, the Law Commission writes that “the problem however arises when the parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny. Herein surrogacy comes as a supreme saviour” (Law Commission of India, 2009: 9). 15 Widge (2002) writes that the issues surrounding pregnancy, childbirth and motherhood are very complex in all societies. There is a huge stigma attached to being infertile/childless, and childlessness has negative implications in Indian society, especially for the woman. Fertility defines womanhood and womanhood is defined by a woman’s capacity to “mother”. Since it is the woman who becomes pregnant and gives birth, society puts pressure on her to “mother” even though the male may be the one who is infertile. 16 Sama reveals in its study that the primary marketing tool used for ARTs is the exclusive package deals offered to the clients. Even religious sentiments are not exempt from being exploited, used for profit making and attracting a clientele. Examples of fertility clinics are cited, one of them in Mumbai advertising thus: “All Muslim couples will be counselled regarding the proscription of their religion while selecting an appropriate treatment modality. We will ensure that none of the Shariat laws is broken while providing infertility treatment” (Sama, 2006: 70). 17 Most clinics or hospitals use catchy advertising text to attract the attention of people accessing such services. For example, the brochure of an infertility centre in Hyderabad says, “Life deserves the best … we try to fulfil your need for a Child”. Another brochure of a fertility clinic in Delhi says, “Dream comes true … because every couple has a right to have their own child”. One hospital from Mumbai claims, “A thousand already born … thousand more to be”. The website of a fertility clinic in Bangalore says, “Is your longing for a child unfulfilled? Your search ends here” (Sama, 2006: 70–71). 18 Quoted in Shree Mulay, “New Climate for Marketing of NRTs and its Implications for Regulatory Processes”, unpublished document, 2006, cited in Sama, 2006: 71. 19 The Act states that “Whoever publishes or distributes or causes to be published or distributed any advertisement, — (a) inviting persons to supply for payment of any human organ; (b) offering to supply any human organ for payment; or (c) indicating that the advertiser is willing to initiate or negotiate any arrangement … shall be punishable with imprisonment for a term which shall not be less than two

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years but which may extend to seven years and shall be liable to fine which shall not be less than ten thousand rupees but may extend to twenty thousand rupees” (Transplantation of Human Organs Act, 1994 – Chapter VI, Offences and Penalties, Article 19, Punishment for Commercial Dealings In Human Organs). 20 The ART Regulation Draft Bill 2010 defines surrogacy as “an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate”; “surrogate mother” means “a woman who is a citizen of India and is resident in India, who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to viability and deliver the child to the couple/individual that had asked for surrogacy”; “surrogacy agreement” means a “contract between the person(s) availing of assisted reproductive technology and the surrogate mother” (Draft ART Regulation Bill, 2010). 21 “Subject to the provisions of this Act, all information about the surrogate shall be kept confidential and information about the surrogacy shall not be disclosed to anyone other than the central database of the Department of Health Research, except by an order of a court of competent jurisdiction” (Rights and duties in relation to surrogacy, 34/12, Chapter – VII, Rights and Duties of Patients, Donors, Surrogates, and Children). “A child may, upon reaching the age of 18, ask for any information, excluding personal identification, relating to the donor or surrogate mother” (Right of the Child to Information about Donors or Surrogates, 36/01, Chapter – VII, ART Draft Regulation Bill 2010). 22 It is also mentioned in the bill that “the birth certificate issued in respect of a baby born through surrogacy shall bear the name(s) of individual / individuals who commissioned the surrogacy, as parents” (Draft Assisted Reproductive Technologies (Regulation) Bill – 2010: , Chapter VII, 25–29.) 23 A recent editorial in Economic and Political Weekly highlights the two year old story of 17-year-old Sushma Pandey, a scrapyard worker earning Rs 4,500 a month, who died after complaining of abdominal pain in Mumbai. Two days earlier, she had donated eggs or oocytes at a fertility clinic, the third time in 18 months. The story reveals how urban, well-educated young women in India are turning to egg donation to make easy money. As with surrogate motherhood, this is an area that, in actuality, overwhelmingly draws the poor. “Sushma Pandey’s case and the data available about the oocytes donation scene in India clearly show that highly sophisticated technology in the hands of an unregulated ART industry has resulted in a ‘free-for-all’ situation. The social, medical and ethical costs have neither been calculated nor debated, either by the industry or the government that continues to dither over the bill” (Fertility Industry, 2012). 24 The dialogue and debate on ARTs created by women’s reproductive health movement has been consolidated, exploring the position statements, websites and blogs materials, agendas papers, informative brochures, pamphlets and leaflets and other research documents of selective organizations that are campaigning around the issue of ARTs.

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Pennings, G. (2002). “Reproductive Tourism as Moral Pluralism in Motion”, Journal of Medical Ethics. Vol. 28, Issue 6: 337–41. Puri, Anjali, and Kapadia, Payal (2006). “Carry on Doctor”, Outlook, 13 February (cited in Sama, 2006: 67). Raina, B. L. (1990). Planning Family in India; Pre-Vedic Times to Early 1950s, Delhi: Commonwealth Publishers. Ramasubban, Radhika, and Jejeebhoy, Shireen (2000). Women’s Reproductive Health in India. New Delhi: Rawat Publications. Sama (2005). Beyond Numbers: Implications of the Two Child Norm, New Delhi: Sama, Resource Group for Women and Health. —. (2006). ARTs and Women: Assistance in Reproduction or Subjugation? A Study. New Delhi: Sama, Resource Group for Women and Health. —. (2010). Unravelling the Fertility Industry: Challenges and Strategies for Movement Building, International Consultation on Commercial, Economic and Ethical Aspects of Assisted Reproductive Technologies (ARTs): A Report. New Delhi: Sama, Resource Group for Women and Health: 46–49. Sarojini, N. B. (1996). Campaign against Injectables and Implants in India. New Delhi: Centre for Development Studies. —. (2001). “A Women’s Body is Not a Testing Ground”, Humanscape, Vol. 8, Issue 9. Sarojini, N. B. et al. (eds.). (2006). Women’s Right to Health, New Delhi: National Human Rights Commission. Sarojini, N. B., and Murthy, Laxmi (2005). “Why Women’s Groups Oppose Injectable Contraceptives”, Incorporating Issues in Medical Ethics, Cumulative, Vol. 2, No. 1, Indian Journal of Medical Ethics, Vol. 13, No. 1. Thapa, Jwala D. (2012). “Analysing the Status of the Surrogate Mother under the Assisted Reproductive Technologies (Regulation) Bill, 2010”, NUJS Working Paper Series, NUJS/WP/2012/01. “The Fertility Industry and Egg Donors; The Unregulated Fertility Industry in India is Allowed to get away with Murder”, Economic and Political Weekly, Vol. XLVII, No. 30, 28 July 2012. Webster’s New World Medical Dictionary (2008). 3rd ed. Chichester: Wiley. Widge, Anjali (2001). “Socio-Cultural Attitudes towards Infertility and Assisted Reproduction in India”, in Effy Vayena, Effy et al. (eds) Current Practices and Controversies in Assisted Reproduction: Report of a Meeting on Medical, Ethical and Social Aspects of Assisted Reproduction Geneva: Switzerland, 17–21 September: 60–74.

PART III: ECOLOGICAL AND GENDER BASES OF HUMAN RIGHTS Part III of the book examines the ecological and gender issues of human rights. It comprises four lead papers which attempt to focus on industrialization and ecological development, environment and development, climate change, domestic violence and women’s rights. The first paper of the section correlates the issue of industrialization and ecological development with a focus on the rights of workers in Delhi, the capital city of India. Written by a young political scientist from University of Delhi, Prakash Chand, the paper explores the economic, social and cultural implications of industrial relocation on the workers in Delhi. The tabulated presentation by the author citing various socio-economic changes and their impact on the food habits, housing facilities, educational benefits and socio-cultural life of the workers in the wake of industrial relocation is alarming. The author argues that one of the worst sufferers of industrial relocation has happened to be the workers themselves. The issue of workers’ safety, health and working conditions has failed to find a place in the whole process of industrial relocation and development discourse, stated the author. The second paper in the section is jointly written by young management faculty from Delhi, Neha Gupta and Sumbul Tahir. Defining the right to development (RTD) as a broader category within which human rights and fundamental freedoms can be fully subsumed, the paper is an attempt to bring together both the right to development and the realization of human rights. The authors argue that implementation of the right to development requires strong and effective national development policies as well as an equitable and just international economic environment in order to achieve the UN Millennium Development Goals. The paper also looks at the right to development in the wake of climate change and offers the human rights approach to mitigate its devastating effects.

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Another paper of the section aptly delineates the trilogy of life, environment and development. Written by a Sheffield scholar from India, Pravin Singh, the paper has adopted an analytical approach both by examining the factors responsible for environmental pollution, specifically caused through global warming and delineating the prerequisites of a sustainable economic growth. The unscrupulous growth of industrialization, modernization and globalization in terms of environmental degradation has actually brought together human right activists and campaigners on a common platform, argued the author. The paper emphasizes the need of giving primacy to the right to life as the most fundamental aspect of human rights and suggests various ways to achieve a balance between growth, sustainable development, safe environment and a peaceful, progressive and happy life. The last paper of the section examines the rights of women in the context of a southern state of India, viz., Kerala. Written jointly by a political scientist and a sociologist from South India – J. Anuja and Sara Neena T. T. respectively – the paper underlines the changing nature of women’s emancipation in the state of Kerala in the aftermath of the formation of Domestic Violence Act, 2005. High literacy rate and high number of crimes against women appear to have unfolded a peculiar paradox in the state. One could witness not only violence against women but also a conspicuous silence against violence in the state, felt the authors. Highlighting the plight of the women in the state through a “culture of silence and subjugation”, the paper tries to reveal interesting statistics on the basis of authors’ field experience in the state and suggests various remedial measures to address the challenge. All the four lead papers of the part underscore the significance of ecological and gender issues in the broad gamut of human rights. Harmonising the relations between development and ecology and placing the gender issue amicably within the patriarchal set up are some of the concerns shown by the authors in this section.

CHAPTER NINE ENVIRONMENTAL PROTECTION, INDUSTRIAL RELOCATION AND HUMAN RIGHTS: A STUDY OF WORKERS’ RIGHTS IN DELHI PRAKASH CHAND* i

Abstract In the early 1990s environmental pollution emerged as the main threat to public health in Delhi, the capital city of India. In order to ensure a pollution free environment the Supreme Court directed to relocate the polluting industries from Delhi. The court’s concern for quality of life in Delhi is commendable. However, disproportionate responsibility is placed on those who sell their labour power in order to secure a life of dignity. Based on a field study, the paper seeks to examine how industrial relocation in the city of Delhi during the 1990s has affected the workers not only economically, but also socially and culturally. Most affected by industrial pollution are the workers themselves but the issue of workers’ safety, health and working conditions do not find a place in the whole gamut of industrial relocation. In contrast, workers have paid a disproportionately high price for a clean Delhi.

Introduction Delhi, India’s capital city, is a multi-functional city with large-scale industries, commercial and service-oriented activities. With 1,000 people being added to the population every day; it is one of India’s fastest growing cities (Dhamija, 2006: 15). Delhi’s growth at the expense of other *

This paper is primarily based on the data collected in a field study conducted by the researcher for his PhD work during May-June, 2005. i This paper is an improved version of the article published in Social Change, 42, I (2012): 49–68.

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urban centres has been due to the range of opportunities for economic growth that it offers to citizens in comparison to other parts of the country, especially to the poor in the neighbouring states. Through the expansion of industry, trade and commerce provided opportunities for economic development, which in turn has transformed the character of Delhi from an administrative city to a multifunctional megapolis with a significant shift towards industry, commerce and services. The rapid population growth along with the high rate of urbanization and also industrialization and an increase in motorized transport has resulted in increasing levels of various air pollutants. In the 1990s the air environment of the city became so critical that the highest court of the nation had to declare that there were virtually no “lung spaces” in the city. A people’s movement to Green Delhi that started in 1996 was Delhi’s response to this wake-up call.

Unregulated Industrial Development in Delhi The air pollution generated from industrial activity in Delhi is about 8% of the total air pollution. By 1996, the total number of small-scale industries in Delhi grew to a record number of 126,000 and unfortunately most of the growth was witnessed in the pollution intensive areas and sectors (Towards Cleaner Air, 2006: 8). Uncontrolled industrial development began in the surrounding villages, described as the Lal Dora area of Delhi (agricultural land of the village that the government allows to be used for residential purposes). Since it became profitable to install small-scale industries in such non-conforming areas, the small-scale sector has now emerged as a major economic force of the city with a large number of units and with matching industrial production. The percentage of people employed in the industrial sector has increased from 16.94 per cent in 1951 to 32.43 per cent of city’s population in 1991 because of the overall growth of Delhi in terms of population, urban area and entrepreneurship, especially in the small-scale manufacturing sector. The rate of increase in Delhi’s workforce during 1981–91 was 48.85 per cent compared to 28.42 per cent (Tata Energy Research Institute, 2001: 25) at the national level, primarily due to the very high growth of the small-scale sector attracting large immigration of unemployed youth from neighbouring states. One indicator that 42 per cent of unemployed youth in Delhi belong to neighbouring states also confirms the availability of cheaper industrial labourers. The contribution of the manufacturing sector to the gross state domestic product in 1997/98 was 18–20 per cent (Tata Energy Research Institute, 2001: 25). The manufacturing sector also acts as a growth engine

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in other related activities, viz., transport, trade and commerce, construction etc. The unregulated growth of the manufacturing sector has resulted in major environmental pressures. The Municipal Corporation of Delhi’s survey of December 2000 showed more than 71,000 units still located in nonconforming areas, which account for more than 85 per cent of the total units in Delhi. As far as the small-scale industrial sector is concerned, the air pollution emission scenario is not clear to date, but low combustion energy efficiency and use of inferior fuel should make this sector a significant contributor towards Delhi’s pollution load. It is thought that a significant source of Sox (oxides of sulphur) contribution could be the small-scale units because of high sulphur-content furnace oil. In addition, significant pollution is also caused by the large number of diesel generators that are installed in various commercial and industrial establishments.

Industrial Relocation in Delhi The issue of industrial closure and relocation in Delhi can actually be traced to the filing of a Public Interest Litigation (PIL) in 1985 by a lawyer and environmentalist, M. C. Mehta. The PIL sought judicial direction and intervention in relocating the polluting industries away from Delhi. Mehta was of the opinion that contrary to the provisions of the Master Plan for Delhi, formulated in 1962, industrial units were operating in residential and non-conforming areas. The Master Plan became the basis of the judgment delivered by the Supreme Court on 8 July 1996 ordering either the shifting of 168 hazardous industries from Delhi to the suitable locations in the National Capital Region (NCR) or their closure by 30 November 1996 (Mehta vs. Union of India, 4SCC:750). The Supreme Court in its order of 8 July 1996 spells out the rationale behind industrial closure/relocation in Delhi.1 The Supreme Court order was supposedly a step in the direction of environmental preservation in the capital city and to ensure its development in accordance with the Master Plan. However, the judgment fuelled the debate over people’s rights vis-à-vis environmental protection. Environmental decisions have different implications for different people. For a common citizen, the closure/relocation of polluting industries is the preservation of his right to inhale clean air but for an industrial worker it may prove painful due to adjustment problems at the relocated site.

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Although provisions were made to protect workers’ interests by the court order of 8 July 1996 (Mehta, 2001: 51), the question about these instructions being followed, or not, remains important. There are a number of important issues concerning social, economic and cultural changes that the workers have experienced at the new site. Against this background the present paper attempts to analyse the impact of industrial relocation on the workers and their families. The methodology of the study includes a sample survey based on a semistructured questionnaire. The sample comprises 104 workers of five industrial units relocated in Himachal Pradesh, Punjab, Rajasthan and Uttar Pradesh. Most of these units are in the category of heavy/large and hazardous/noxious industries and come under the organized sector of production.

Relocation and Economic Rights of the Workers The Supreme Court laid down clear guidelines to protect the rights of the workers affected by closure/relocation of industrial units. The relocating units were required to consider their workers as being in “active employment” while the units are being relocated. The workers were paid one year’s wages as a “shifting bonus” in order to enable them to settle down at the new locations (DJAM, 2001:2). Table 1: Details of Compensation Paid to Workers No. of Workers Details of Payment

Per cent

Yes

No

Yes

No

Whether compensation offered Get wages between closure and restart

74 60

30 44

71.15 57.70

28.85 42.30

Get one year shifting bonus A lump sum amount paid Get the compensation in time

56 14 6

48 90 90

53.80 13.50 5.80

46.20 86.50 86.50

104

0

104.0

80 54

30.00 48.10

70.00 51.90

Have you received the full payment 0 yet? Is your case still pending? 24 Approached the court for settlement 50 Source: Data is based on the researcher’s field work

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Compensation paid to the workers of the relocated units has various dimensions. Only 71.15 per cent of the workers were offered compensation though all the workers were eligible for the same. Only 57.7 per cent of the workers were paid in full during the period of relocation. Further, 53.8 per cent of the workers were fortunate to get a “shifting bonus” in order to settle down in the new locations. Just 13.5 per cent of them were paid a lump sum so that they would not protest against the owners. It is unfortunate that only 5.8 per cent of workers got the compensation in time; a majority of them (86.5 per cent) got it later after a long drawn out struggle. 48.1 per cent of the workers are reported to have approached the court for settlement. It shows that the Indian judiciary is out of reach of the common people because of being more expensive and also reflects that the common people lack guidance and information about their rights. Thirty per cent of the workers reported that their cases were still pending in courts even 7 years after the court order. Even the profit-making industries deprived the uneducated and poor employees of the compensation prescribed in the court order. Unfortunately these workers are so poor that they have no means to claim compensation. The existing mechanism for resolution of industrial disputes is skewed in favour of the employers; litigation can take years and in the unequal battle workers are invariably at the receiving end. Therefore, a piquant situation faces workers who are reduced to being helpless bystanders between an active judiciary and an inactive executive (Navlakha, 2000: 4470). Table 2: Utilization of the Compensation Money Response

No. of Workers

Spent in day to day requirements Spent in family affairs (e.g. daughter’s marriage) Repaid debts Invested in banks Medical treatment Total Source: Data is based on the researcher’s field work

Per cent

26 18

35.2 24.3

14 12 4 74

18.9 16.2 5.4 100.0

How the workers are utilizing the compensation money has a direct bearing on the process of their rehabilitation. Out of 104 workers interviewed, as many as 74 are reported to have received some compensation, though the amount paid is not strictly what the court

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ordered in each case. Table 2 provides data on how 74 workers utilized their compensation. As shown in Table 2, more than 35 per cent of the workers who received some compensation were seen spending the same for meeting their day to day expenses. Another one-fourth of them are reported to have spent the money in family affairs like a daughter’s marriage. Another one-fifth of them used the money for repayment of their loans which they had taken during the intervening period (the period between the closure and resettlement of the industry). More than 16 per cent of the workers used the compensation money wisely by investing it in a bank. The remaining 5.4 per cent of the workers gave a variety of responses regarding the mode of utilization of their compensation money, including, among others, meeting the requirements of family members at their native place, or spending on medical treatment. It shows that the condition of the workers was so bad that more than one-third of them utilized the compensation money on meeting their day-to-day expenses and another one-fourth spent it on either repayment of debt they had incurred during the transitional period or in fulfilling family affairs like a daughter’s marriage. This compensation money could have been utilized for their rehabilitation but most of the amount was spent in fulfilling basic needs or meeting social obligations. This made the situation worse for them.

Changes in Economic Conditions of the Workers Here an attempt has been made to look into the impact of relocation on the economic conditions of the workers. Table 3 shows the changes in the monthly income of the workers after the relocation. In a majority of cases (78.8 per cent), the workers reported that their income had gone down, which is quite natural in such circumstances. They are not getting the same salaries as they were getting in Delhi because of the lower rate of house rent allowance (HRA) in other states in comparison to Delhi. They are also not getting the City Compensatory Allowance (CCA) and a number of other allowances, like annual bonus, washing bonus, travelling allowance etc. which they used to get in Delhi. Also in many cases it became apparent that workers were not given full time work, i.e. 8 hours a day, in order to compel them to leave the job. Only 9.6 per cent of the workers reported that there was no change in their monetary status, as their factory was paying regular salaries to them. 11.6 per cent of the workers felt that their income had increased after relocation, as they were getting a shifting allowance which was nearly 10 per cent of their income

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(Sri Ram Food and Fertilizer). The overall picture shows that in a majority of cases (78.8 per cent), the monthly income of the workers has come down after relocation. Thus it will naturally disturb their overall lifestyle and increase miseries for them. Table 3: Trends of Change in Income Type of Change

Number of Workers Income has decreased 82 Income has increased 12 No change 10 Total 104 Source: Data is based on the researcher’s field work

Per cent 78.8 11.6 9.6 100.0

Taking loans is not unusual among the workers, but if we consider the reasons for taking loans before and after relocation, we get an idea about the financial status of the workers affected by the court order. Table 4 provides a comparative picture of the number of respondents taking loans before and after relocation. Table 4: Whether workers took Loans before and after Relocation Before Relocation Taken Loans

Number

Per Cent

Yes 38 36.5 No 66 63.5 104 100.0 Total Source: Data is based on the researcher’s field work

Post Relocation Number 80 24 104

Per cent 76.9 23.1 100.0

Data in Table 5 reveal that there has been practically no difference in the incidence of the workers taking loans before and after relocation of industrial units. The workers had been taking loans in the past and they continue to do so now. As seen from Table 6, there are differences in the reasons for taking loans. In the past, the dominant reasons for taking loans included: (a) marriage of a daughter/sister (31.5 per cent), (b) purchase of property or construction/repair of house (31.5 per cent) and investment in business (21.2 per cent). On the other hand, the single most important reason for taking loans after relocation is meeting day-to-day expenses for running the household (70 per cent). In the past, no one is reported to have taken a loan for this purpose. The additional reasons for taking loans in the

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post-relocation period are (a) to repay debt (15 per cent), (b) to generate self-employment (7.5 per cent) and (c) family affairs (7.5 per cent). It shows that workers’ economic conditions are so bad that they are compelled to take loans to meet their day-to-day household expenses. Another major reason of taking loans is repayment of debts, which indicates the miserable condition of the workers after relocation. Table 5: Reason for taking Loans (Before and after Relocation) Reasons for taking Loans

Before Relocation Number

Day to day household expenses Purchase of 12 property/construction /repair of house Marriage of daughter/sister 12 Investment in business/self8 employment Repayment of debt/old dues Medical treatment of family 6 member(s) Other social obligations Total 38 Source: Data is based on researcher’s field work

After Relocation

Per cent

Number

Per cent

31.5

56 -

70.0 -

31.5 21.2

6

7.5

15.8

12 -

15.0 -

36.5

6 80

7.5 76.9

Does relocation has any direct bearing on the saving pattern of workers? Table 6 shows that 88.4 per cent of the workers were able to save some money, reducing to 13.5 per cent after relocation. A number of reasons have been given by the workers: increase in family expenditures (66.7 per cent) because of maintaining two families (one in Delhi, another at the relocated place), repayment of loans and dues (17.7 per cent), increase in transportation expenditure (6.7 per cent), and decrease in salary (8.9 per cent) (Table 7). It clearly shows that relocation of industrial units has reduced the saving capacity of the workers, which will again compel them to fall into the vicious circle of debt trap in order to fulfil a number of social obligations like marriage of daughter/sister.

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Table 6: Money Saving Pattern Before Relocation

After Relocation

Money Saving Number

Per cent

Yes 92 88.4 No 12 11.6 Total 104 100.0 Source: Data is based on researcher’s field work

Number

Per cent

14 90 104

13.5 86.5 100.0

Table 7: Reasons for Decline in Saving Capacity of Workers after Relocation Reasons No. of Workers Family expenditures increased 60 Loan/old dues repaid 16 Salary decreased 8 Transport expenditure increased 6 Total 90 Source: Data is based on researcher’s field work

Per Cent 66.7 17.7 8.9 6.7 100.0

Impact of Relocation upon Lives of Workers Here an attempt has been made to examine the impact of relocation upon the lives of the workers. Four important aspects of the life of workers are: changes in food habits, health facilities, children education, and housing facilities. (a) Food Habits When asked if there had been any change in their food habits or those of their family members, more than 80 per cent of the respondents reported that there had been a change, whereas one-fifth reported that there was no change. Further probing revealed that 33.6 per cent of the respondents were consuming poorer quality food, as they were buying cheap quality rice, wheat and vegetables. Some stated that they used to visit the market when it was about to close, as at that time they could buy vegetables at lower rates. One-fourth of them (25.2 per cent) stated that they had curtailed expenditure on food items. 8.4 per cent of the workers responded that earlier they used to consume non-vegetarian food quite frequently, but now they have either totally stopped eating non-vegetarian items or

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consume them only once a while. Others (5.9 per cent) pointed out that they had reduced the quantity of milk consumed. An equal number of respondents (5.9 per cent) reported that they had stopped taking food three times a day. Sometimes the entire family had to sleep without any food (6.7 per cent). 4.2 per cent of the workers felt that they were somehow managing to live by eating only once a day to survive. Children were deprived of milk and seasonal fruits. Other austerity measures like ignoring family gatherings or not buying fruits or sweets were also reported. It clearly shows that relocation is responsible for a drastic change in the food habits of the workers. It has negative implications for their health standard. Table 8 provides details of the changes in the food habits of the relocated workers. Table 8: Nature of Change in Food Habits Nature of Change in Food Habits

Number

Per cent

Lower quality of food (rice, wheat, cheap 40 33.6 vegetables) Reduced expenses on food items 30 25.2 Stopped consuming non-vegetarian items or taking 10 8.4 them only once a while Some days one had to go without food 8 6.7 Reduced the quantity of milk consumed 7 5.9 Stopped lunch or dinner 7 5.9 Somehow managing just to survive 5 4.2 Other reasons 2 1.7 Total 109 100.0 (Note: In all 84 respondents provided the data given in the table. The total exceeds 84, because some respondents gave more than one response.)

(b) Health Facilities Table 9 provides data regarding changes in the pattern of medical treatment of the respondents and their families. Almost 77 per cent stated that there was a change in medical facilities available to them due to the relocation of industry whereas 23 per cent of them said that earlier they were not getting any medical facilities and that they were either going to government hospitals or consulting private doctors in case of illness. In cases where they were still getting their regular salaries, the medical facilities they used were intact.

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Table 9: Change in pattern of medical facilities Change in Pattern

No. of Workers

Yes 80 No 24 Total 104 Source: Data is based on the researcher’s field work

Per cent 76.9 23.1 100.0

Nearly 62 per cent of respondents replied that they were still getting ESI medical facilities, but all of them were dissatisfied with the facilities being provided there. A number of reasons were reported like (a) nonavailability of basic facilities (56.2 per cent), (b) lack of free medicines (37.5 per cent), and (c) distance of the hospital from their residence (6.3 per cent). Another 34 workers said that they were now going to government hospitals where treatment was not good and at times they had to buy costly medicines from the market. Some workers reported that earlier they were getting medical allowances, or if something happened during working hours the owners used to take care of them. 15 per cent of the respondents remarked that now they had to spend their personal money, while others stated that they tried to bear the pain and visited government or private hospitals only during emergencies. Industrial relocation has also affected the physical and mental health of the workers. 65.4 per cent of the workers reported a change in their health after relocation. A number of symptoms were reported: (a) feeling stress, mental depression (59 per cent); (b) bodily weakness (29.4 per cent); and (c) chest pain/lung disease (11.8 per cent). It clearly shows that relocation is not just an economic issue, but is also connected with the physical, mental and psychological health of the relocated workers. Constant concern for their family remaining in Delhi, frequent travelling from Delhi to the relocated place, irregular food habits, absence of family care in case of sickness and insecure future have had an adverse impact on their health. (c) Children’s Education Relocation has badly affected the education of the children of the relocated workers. More than one-third (35 per cent) of the respondents said that their children had stopped going to schools because of financial crisis. Some workers mentioned that their children had failed the examination because of change in school or lack of tuition facility. 29 per cent of the respondents reported that due to financial crisis, their children

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had stopped going to school and had started working to assist their families. Their involvement in household work and in certain economic activities had led to their entry into substandard jobs long before they would normally have done. They are totally unprepared and untrained for this. Even where the children were going to school, they were not getting private tuition, which in turn led to their poor performance because they don’t have any guidance at home. Some workers have sent their families to villages and now the children are studying in the village schools. A majority (52 per cent) of the workers mentioned that earlier their children were going to private schools but now they are going to government schools where the standard of education is low. In order to support the schooling of one child, the other child (preferably female – 33 per cent) has been taken out of school. Kamla’s is a striking case. She has two brothers. All of them were going to school before relocation, but after the relocation due to financial crisis her education was stopped whereas the family somehow managed the education of her brothers. It was thought by the family that education was not as important for her as she would have to handle household chores after marriage. Thus the education of boys was given priority and, therefore, education of the girl was totally stopped. This attitude has serious implications not only for their families but also for the whole of society. (d) Housing As relocation disrupts the normal habitat of the workers, the question whether relocation has any implications for housing seems obvious. It was revealed that in Delhi nearly one-third of workers (31 per cent) had their own houses and only 48 per cent of them had rented houses, increasing to 85 per cent at the new place. This has a direct bearing on their income. More than 52 per cent of the respondents reported that there is an increase in the distance from their houses to the factory at the new place. Now they have to pay more for transportation. It clearly shows that due to relocation a majority of the workers have been forced to stay in rented houses which have a negative impact on their saving capacity and their day-to-day requirements. Further they are now paying more for transportation as the distance between their houses and the factory has increased. Table 10 outlines changes in the pattern of housing.

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Table 10: Pattern of Change in Housing Before Relocation

After Relocation

Pattern of Change Number Per cent Own House 32 30.8 Rented House 50 48.1 Jhuggi 22 21.1 Total 104 100.0 Source: Data is based on the researcher’s field work

Number 10 88 6 104

Per cent 9.6 84.6 5.8 100.0

(e) Changes in the Social and Cultural life The aftermath of the relocation has driven the workers and their families to utter isolation. On the brink of starvation, they cannot share their anxiety even with their family members. Family tensions have increased, including incidents of wife-beating. Usually, quarrels and physical violence follow from friction over reduced money for basic necessities of life and general uncertainty about the situation (Delhi Janwadi Adhikar Manch, 2001: 15). As happens in every oppressing situation, women over here became the most vulnerable, bearing the brunt of the overall economic pressures as well as the frustration of their spouses. Relocation has also been a major factor in separating the families. 89 per cent of the workers reported that they were with their families before relocation, while this percentage came down to 21 after relocation. Hence, 67 per cent of families were separated due to relocation. Due to financial crisis either they were left in Delhi or they went back to the villages. Now these workers are left alone and there is no one to take care of them in the event of sickness. Many workers reported that in their absence the children were not getting proper guidance, which was affecting their education and career. The adverse outcome of family separation has forced workers to maintain two houses, one in Delhi or a village and another at the relocated place, resulting in an increase in their living expenses. Relocation has snatched childhood from workers’ children. 42 per cent of the workers reported that due to financial crisis their children had started working to assist the family after relocation. 17 per cent of the workers reported that before relocation their wives were working either in a nearby factory or in houses as domestic help. After relocation they were either sent to villages or went with them. It directly affected their family income and thereby degraded their lifestyle.

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There is a remarkable change in the cultural and social aspects of the life of the relocated workers. Most of the workers reported that now they do not see the same friends as before. There is also a change in the respect they were getting from others. It might be due to their bad economic conditions. There is a 33 per cent decline in social gatherings (like marriage, birthday celebrations etc.) in which workers used to participate before relocation. Respondents attribute this to the lack of money, time and change of location from somewhere they had stayed for years and where they had a good social networking which naturally got broken after relocation. Women related how they found it difficult to visit their married daughters because they could no longer afford gifts to take with them. One woman stated that she had not been able to meet her daughter who had just been delivered of a boy – “Khali haath nahin ja sakte” (cannot go empty handed). Unable to break from these age-old customs, these families see no hope of seeing their children again. Table 11: Change in Participation in Social and Cultural Activities Before Relocation

After Relocation

Participation Number

Per cent

Number

Per cent

In Social Gatherings

102

98.1

68

65.4

In Cultural Activities

100

96.2

36

34.6

Source: Data is based on the researcher’s field work

Culture is an inseparable part of our life. Industrial relocation has led to uprooting and shifting of people from their familiar surroundings, patterns of livelihood and culture. 62 per cent of workers reported that after relocation they were not attending cultural activities which they used to attend before relocation (Table 11). A number of reasons could be given for this development: increased working hours, social dislocation, isolation, separation from family etc. It shows that relocation has not only financial, but also social and cultural implications. It has broken down workers not only economically but also socially and culturally.

Concluding Observations Overall, the results of industrial relocation are very disappointing. It has violated the basic human rights of the workers. Though most of the

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workers got the offer of re-employment, the terms and conditions were not the same as in Delhi. Now they are getting lower wages, whereas the working hours have increased comparatively. The majority of the workers also got compensation, but none of them received it on time. Industrial relocation has made the majority of workers either jobless or decreased their bargaining capacity. Further, the process of contractualization, casualization and formalization in the industrial set up has forced the workers to work in a more exploitative economy resulting in increasing control and dominance of the factory owners over the workforce. Most of the workers reported that their financial condition has deteriorated since relocation. The adverse effect of less income was reflected in the deterioration of quality of the food intake. Most of the workers were forced to curtail their expenditure on food items. Likewise, in the absence of ESI hospitals or any medical subsidy from the employers, most of the workers were forced to go to government hospitals. The quality of service in government hospitals was so poor that the workers had, in many cases, no alternative but to approach private doctors who charge exorbitant fees. It shows that even after more than half a century of independence, workers have been reduced merely to cogs in the machines. Workers are not treated as human beings having basic needs such as health, education, housing, etc. The right to dignity is still a dream for the working class in contemporary Indian society. The adverse financial position of the workers caused by the relocation of industrial units has also affected the quality of education of the children of the workers. In some extreme cases, the workers stopped sending their children to school and forced them to take up odd jobs to supplement the family income. In other cases, the workers either made their children shift from good (but expensive) private schools to those run by the government, where the cost is low but the quality of education is poor. Education of male children is preferred to that of female children, and girls are increasingly withdrawn from the schools. The process of industrial relocation has brought with it social isolation, frustration, depression and social tensions for the workers and their families. Displacement is not just an economic issue which can be solved by compensation but it also entails social, psychological, historical loss and disruption which cannot be compensated by merely financial means. The fact that it is neither non-compensable nor brought about after dialogue and consultation, makes it arbitrary and undemocratic. There have been

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remarkable changes in the cultural and social aspects of the workers’ lives. This aspect has always been neglected in displacement and relocation cases. Most of the workers have stopped participating in social and cultural activities. This has occurred due to the absence of the social networking they had nurtured for years. This loss is non-compensable. Workers are not against a clean and green environment. In fact, they are the first victim of industrial pollution and have the greatest need for clean air and water. Industrial relocation has just removed the victim rather than the cause. For the industrialists the court order came as a blessing in disguise. Under the guise of judicial directive, they did everything that they were not able to do otherwise: closing the industry, retrenching the workers, selling the lands at a very high rate, diverting the capital in other more lucrative sectors, and so on. The order has come as a double reward for them. Earlier they were profiting by violating all environmental safety norms and exploiting workers and now they are selling and diverting the capital to other more lucrative sectors. For the workers the order has come as a double punishment. The relocation of the factory means that while the work condition shall remain hazardous as before, they have to suffer from the traumatic experience of displacement also. The sections most affected by industrial pollution are the workers themselves. But the issue of workers’ safety, health and working conditions does not find a place in the whole process of industrial closure/relocation. In contrast, workers have paid a disproportionately high price for a clean Delhi. Thus, in the whole process of industrial relocation workers have been denied their basic human rights.

Notes 1

The Supreme Court in its judgment observed: Delhi is one of the most polluted cities in the world. The quality of ambient air is so hazardous that lung and respiratory diseases are on the increase. The city has become a vast and unmanageable conglomeration of commercial, industrial, unauthorized colonies, resettlement colonies and unplanned housing. There is total lack of open spaces and green areas. Once a beautiful city, Delhi now presents a chaotic picture. The only way to relieve the capital city from the huge additional burden and pressures, is to deconcentrate the population, industries and economic activities in the city and relocate the same in various priority towns in the National Capital Region (NCR) (SSC 1996:752).

Environmental Protection, Industrial Relocation and Human Rights 159 Keeping in mind the increasing air pollution in Delhi, the Supreme Court directed to deconcentrate the industrial and economic activities in the city and to relocate the same in the National Capital Region. The Master Plan of Delhi became the basis of the judgment delivered by a division bench of Justice Kuldeep Singh and Justice Faizan Uddin. According to the directives issued by the bench on 8 July 1996: x The listed 168 hazardous/\heavy industries cannot be permitted to operate and function in Delhi. These industries may relocate/\shift themselves to any other industrial estate in the National Capital Region (NCR). x The workmen employed in these industries shall be entitled to the rights and benefits as indicated hereunder: (a) The workers shall have continuity of employment at the new town and place where the industry is shifted. The terms and conditions of their employment shall not be altered, (b) The period between the closure of industry in Delhi and its restart at the place of relocation shall be treated as ‘active employment’ and workers shall be paid their full wages with continuity of service, (c) All workmen who agree to shift with industry shall be given one year’s wages as “shifting bonus” to help them settle at the new location, (d) The “shifting bonus” and the compensation payable to the workmen in terms of this judgment shall be paid by the management before 31.12.1996. The shifting industries on their relocation in the new industrial estates shall be given incentives in terms of the provisions of the Master Plan and also the incentives which are normally extended to the new industries in the new industrial estates (SSC, 1996: 752).

References and Further Reading Delhi Janwadi Adhikar Manch (2001). How Many Errors Does Time Have Patience For? Delhi: DJAM. Dhamija, Urvashi (2006). Sustainable Solid Waste Management: Issues, Policies and Structures. New Delhi: Academic Foundation. Fernandes, Walter (2008). Sixty Years of Development-Induced Displacement in India: Scale, Impacts and the Search for Alternatives in India. Social Development Report 2008, Council for Social Development. New Delhi: Oxford University Press. Kothari, S. (1997). “Whose Independence? The Social Impact of Economic Reforms in India”, Journal of International Affairs, 51(1): 85–116. Mehta, Lyla (ed.) (2009). Displaced by Development: Confronting Marginalization and Gender Injustice. New Delhi: Sage Publications, p. xxxi. Mehta, M.C. (2001). “Capital Pollution; Wages of Violation”, The Hindu Survey of the Environment. Chennai: Kasturi and Sons.

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M.C. Mehta. vs. Union of India, (1996). 4 SCC 750 9, Lucknow: Eastern Book Company. Ministry of Rural Development (MRD) (1994). National Policy for Development-Induced Displacement and Rehabilitation of Persons Displaced as a Consequence of Acquisition of Land, New Delhi: MRD, Government of India (second draft). Narratives of Displacement: Experiences of the Workers of Factories relocated from Delhi (2001) (Unpublished Report). Delhi: University of Delhi Department of Political Science. Navlakha, Gautam (2000). “Urban Pollution: Driving Workers to Desperation”, Economic and Political Weekly, 16 December. Supreme Court Cases (1996), 4 SCC 750. Lucknow: Eastern Book Company, p.752. Tata Energy Research Institute (2001). State of Environment Report for Delhi (2001). New Delhi: TERI. Towards Cleaner Air: A Case Study of Delhi (2006). New Delhi: Department of Environment, Government of NCT of Delhi.

CHAPTER TEN RIGHT TO DEVELOPMENT IN THE WAKE OF CLIMATE CHANGE: REFORMS NEEDED IN INTERNATIONAL COOPERATION NEHA GUPTA AND SUMBUL TAHIR

Abstract There is a huge debate on the interpretation of the relationship between human rights and the right to development. Very little attention so far has been given to identifying the extent to which the right to development and an approach based on human rights to development differ. Concepts like equality, freedom, participation and non-discrimination are common to both but there are many significant differences as well. The right to development is a broad area that includes allocation of financial resources and priorities in international development cooperation. Hence the right to development is not the same as a rights-based approach to development. Between these concepts, there has emerged a significant shift from charity to responsibility in the field of international development cooperation. On the other hand, the impact of climate change due to increasing anthropogenic emissions has had far reaching implications in the efforts of international community in achieving MDGs (Millennium Development Goals). This paper attempts to relate the right to development in the field of international cooperation in the wake of climate change and explores the linkages between human rights and MDGs.

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Debate on Human Rights Approach and Right to Development Integrating human rights with the right to development has not been an easy task. Though many people are contributing towards designing a valuable development process for the future, yet there is no universal consensus on the issue. In this paper we define right to development (RTD) as “the right to a process of development in which all human rights and fundamental freedoms can be fully realized”. These two terms share many similar aspects of discussion but their differences cannot be foregone. In other words, the right to development is a superset of human rights as it considers it as a complete system and examines all the crucial areas of consideration from within. The human rights-based approach to development considers the usual goals of development activities, such as health or educational services, food or shelter, as human rights. There is a trail carried out so as to balance out the main contributors of human development theory with the internationally acclaimed work of human rights. Alessandro Sitta says: Between these principles, the principles showing highest degree of consensus are: x attention to the process of development x direct linkage to rights x participation and empowerment x non discrimination x attention to the most vulnerable groups x accountability

Most of these principles are already in right to development theory and practice but on studying them in a rightful manner in the context of human rights, they have attained a new significance. The research design adopted in this paper is descriptive, aiming at describing a phenomenon that despite having been studied before, it still offers a huge potential for interpretation. In the paper various interpretations of right to development have been analysed to understand the various

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connotations in which this right is understood all over the world. These interpretations are then explored to arrive at a manner through which we can improve and adapt humanitarian interventions with regard to international cooperation initiatives and application of the Millennium Development Goals in a world struggling with climate change. The paper hence tries to prescribe a way of bringing together the right to development and realization of human rights.

Right to Development The renowned work of Arjun Sengupta has been very important in explaining various dimensions in the right to development and their consequences. His six reports not only explain the content of this right in detail, but also derive ways for its concrete realization. The human person is the central subject of development and should be the active participant and beneficiary of the right to development. [DRD, Article 2 (1)]

The process of claiming RTD is double: an individual has the right to claim his RTD realized by his own country, and the country has the same right in relation to the international community. The RTD is an individual right, a collective right and a right of solidarity, which makes a necessary correlation between the realization of this right at the individual and at the collective level. In sum, the declaration on the RTD highlights some fundamental concepts: 1. The human being, understood in his individuality and relatedness, is the centre of a development process, which is a multi-task process in which cultural, political and social aspects must be included. 2. The RTD is an inalienable human right that every individual can assert against his own people and that every society can assert against the international community. This right is defined as the right to a process of development in which all human rights of the individual and the people are respected. 3. A shared and diversified responsibility exists for the realization of the RTD that calls to action the single individual, the community to which he belongs, the State and the international community, with shared but differentiated duties.

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4. Human rights are indivisible and interdependent. This means that no right can be fully realized without the contemporary realization of all the others and that a State or a community cannot pursue the realization of a human right to the detriment of some other right. 5. The RTD is indissolubly connected with the concepts of equity, social justice and participation. This acknowledgment implies a redefinition, at national and international level, of political priorities, resources allocation and mechanisms for the implementation of the different policies.

Right to Development and Human Rights-Based Approaches to Development: A Critical Confrontation The RTD approach is an example of human rights-based approaches to development. Many common points exist between these two perspectives. Both talk about the emphasis towards participation, non-discrimination and empowerment, but the RTD seems broader than other human rights approaches because it integrates the common elements; the acknowledgment of development itself as a human right, i.e., development itself becomes a human right. According to a 1986 Declaration defining development in terms of human rights, the RTD approach reverses the relation in development process: human rights and fundamental freedom are not only a means to achieve human development, but they are the goals of development itself as an indivisible and interrelated whole. This does not mean that other components, like economic growth or technological transfer, lose their relevance, but they assume the role of instruments to achieve a broader goal. The right to development is a continuous approach which shows outcomes. An activity trying to improve or practise any human right in sync with the RTD approach is not considered to be the same as realizing the RTD. The RTD requires attention to the consequences and also towards the processes that are lagging in due course. As Sengupta says: while the reduction of poverty or improving the lots of the most vulnerable or the poorest section of the population will satisfy some index of justice, to realize the right to development, viewed as a right to a process, will require looking at the elements that contribute to the dynamics of sustained poverty reduction and human development (Sengupta (2000)).

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According to the human rights approach, all human rights are practised separately, by actions which try to make several specific rights stronger when followed in proper order. However, according to the RTD perspective, creating a sustainable process for practising human rights is a connected and holistic approach which is important and cannot be overlooked. This means that the right to development in totality will also have to be realized in a rights-based manner which follows more transparency, accountability, participation, justification and equity. All these elements are interdependent when related to the level of realization of a right. As stated by Alessandro Sitta: Being in fact the elements of such human rights, and as all human rights have an equal value, a trade-off or comparison in which we can lose any of them is not possible despite of having a positive general value.

Therefore, if a human right is violated the right to development does not get improved, even if there is an improvement in all other human rights. The requirement for getting a better insight of RTD will be that at least some of the rights can be practised at higher standards while no other human right is violated or suppressed thereby ensuring a sustainable growth. Another difference between the HRA and RTD framework can be found in terms of economic and political concerns. According to RTD, each person has the right to be free to develop himself. In this sense, RTD affirms the right. Under RTD, everyone has the right to have adequate development policies implemented, both at national and at international level. The emergence of conflict is not surprising, given the content of the RTD and the possible consequences of its implementation. It is enough to think about two fundamental points: the duty of international cooperation, and the duty to respect and fulfil political and economic rights at the same pace and with the same attention, duty that could generate some problem for many governments, both in developed and in developing countries. A full appreciation of the RTD would contradict the behaviour of a few developing countries that approve a total or partial denial of human rights in comparison to the achievement of economic and social rights, and also the practices of few developed nations that privilege civil and political rights at the cost of economic and social rights.

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International Cooperation – Current Scenario The United Nations Declaration itself clarifies the emphasis on human rights in international cooperation by proclaiming in the Preamble stating that the purposes and principles of the charter of the United Nations to the achievement of international cooperation in solving international problems of an economic, social, cultural and humanitarian nature and in promoting and encouraging respect for human rights and fundamental freedoms.

Member states are required to take joint as well as separate actions for promoting high standards of living with good conditions of economic and social progress and development, and provide for solutions of international problems to achieve cultural and educational cooperation, and finally to arrive at a universal observance of human rights and fundamental freedoms without discriminations. Hence, all member states of UN are a party in protecting human rights through international cooperation. The Vienna Declaration of 1993 originally established a consensus about the right to development as a human right. It also reaffirms the commitment of all in ensuring development and promoting effective international cooperation for realizing the right to development. The declaration from the 2005 UN World Summit proclaimed that the international community has a responsibility in protecting civilian populations from violations of human rights. It is thus clear that implementation of the right to development requires effective development policies at the national level, and a favourable and equitable economic environment at the international level. It is the responsibility of the international community that all obstacles to achieving the right to development of all countries especially the developing and third world countries should be removed. The individual is placed at the centre in human rights with restrictions provided only under international human rights conventions. The point is not to protect cultures, religions or traditions but rather protecting an individual human being’s right to protection against infringements by the State. Without this protection there can be no confidence in a State and it is fundamental to a well-functioning democracy.

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x All countries must ensure that the promotion and protection of human rights is mainstreamed into all foreign policies. x All countries should work towards enhancing support for international instruments in the field of human rights. x Develop an international human rights policy and continuously upgrade and modify it by frequent dialogues with community members. x Support independent international monitoring of human rights compliance. For instance SA 8000 provides third party certification for social accountability. The Universal Periodic Review set up in 2006 is a mechanism under the UN Human Rights Council, which regularly reviews the individual UN Member States’ fulfilment of their human rights obligations. x Always assess the will to comply with human rights obligations as an essential ingredient in all bilateral relations with other countries. x Increase cooperation with nongovernmental organisations working for the implementation of international human rights conventions and declarations. x Contribute to the initiatives and development activities undertaken by organizations like UN, World Bank, and other human rights defenders. x Work towards developing corporate social responsibility into an effective tool for promoting and protecting human rights. x Work towards eliminating all forms of torture and other illtreatment of prisoners. x Making sure that the fight against terrorism does not exploit the human rights of the general public. x Promoting the UN Millennium Development Goals.

Impact of Climate Change on Human Rights The impact of anthropogenic climate changes on human life and hence on human rights is widely accepted and acknowledged today. Climate change is expected to cause floods, unbearable heat, food shortage, drought, and enhanced exposure to diseases that are water-borne and vector-borne. Numerous normative frameworks have been designed to understand and control climate change. The first, for instance the Stern Review, applies cost-benefit analysis by comparing the costs and benefits of climate change with those for the programmes for combating climate change. This becomes a valid ground

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for justifying a diligent policy of combating climate change. The argument employed is that the costs of mitigating the harmful effects of climate change will be miniscule as compared to the harmful after-effects of no intervention. A second approach is to consider the impact of anthropogenic climate change on security. For example, a statement issued by the High Representative and the European Commission to the European Council on Climate Change and International Security, believes that climate change is “a threat multiplier which exacerbates existing trends, tensions and instability”. The institutions believe climate change to cause stress over resources that are already depleting, loss of land and border disputes making millions of indigenous people homeless, energy conflicts and most of all tensions between the industrialized countries that contributed the most to emissions causing this climate change and the developing countries which are suffering the consequences. A third perspective is also found that consists of people who believe that the natural world has intrinsic value and any anthropogenic instances of climate exploitation and change should be condemned. We are going to consider a fourth perspective that believes that climate change is invariably hurting the progress made towards human rights implementation in the last century. This approach is not completely new or groundbreaking though it has not managed to find full support and acceptance. In 1972, the United Nations Conference on the Human Environment, held in Stockholm, was the first instance of recognition of the global nature of environmental depletion and its fundamental linkage with exploitation of human rights by the international community. The Stockholm Conference affirmed that environmental conditions “are essential to his or her wellbeing and to the enjoyment of basic human rights – even the right to life itself”. In 1987, Maumoon Abdul Gayoom of the Maldives became the first President to raise the issue of climate change in the UN General Assembly. The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities stressed on the necessity of human rights protection by the law in July 1994. The report also emphasized the placement of a legal framework to ensure the right to a healthy and flourishing environment. According to

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the report it is not possible to separate the claim to the right to a healthy and balanced environment from the claim to the right to sustainable development, which in turn clearly specifies the need to channel efforts to fight poverty and underdevelopment. In 2007, an AOSIS conference adopted the Male’ Declaration on Human Dimension of Global Climate Change which appealed for the “fundamental right to an environment capable of supporting human society and the full enjoyment of human rights”. The conference raised strong issues relating to climate change and its clear and immediate effects on thwarting full enjoyment of human rights that include the right to life, the right to participate in culture, the right to own and enjoy property, the right to an adequate amount of food, and the right to the highest achievable standard of physical and mental health. Later the Human Rights Council of the United Nations passed a resolution proclaiming that “climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights”. Similarly, Article 24 of the UN Convention on the Rights of the Child amalgamates environmental issues with the provision of primary health care to fight diseases and malnutrition. It highlights the ill effects and risks that environmental degradation may be leading to the unavailability of hygienic and nutritious food and clean water for the mankind. The Convention on Biological Diversity (CBD) believes in protecting the cultural rights of indigenous peoples while engaging in sustainable management of biological diversity of their respective communities. The organization also upholds the decentralization of decision making to ensure equality in distribution of the benefits of the initiated activity. ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) also safeguards land rights of indigenous and tribal peoples. Again a participatory decision making model is recommended in formulating development plans and also in developing environmental impact studies. The Cartagena Protocol on Biosafety of the CBD, adopted in January 2000, proclaims that countries should be informed in advance of the risks of genetically modified organisms for biological diversity and human health.

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The illegal movement and dumping of toxic wastes in developing countries with lax laws and weak policing is considered as “constituting a serious threat to the human rights to life, good health and a sound environment for everyone” by the Commission on Human Rights. Similarly the use of toxic agricultural products, uncontrolled exports and use of plastics, chemicals, e-waste and contaminated ships is also a major concern. Here, the Basel Action Network (BAN), an environmental watchdog network, has described trade in toxic waste as one following “a path of least resistance” in which the poorest of the poor end up being “the recipients of the risks and poisons of the rich”. This clearly shows the lackadaisical attitude of the industrialized world. Despite these initiatives, even now the US argues against a human rights based approach to climate change citing the following reasons: x Complexity and Uncertainty: The processes that lead to climate change are extremely complex making it difficult and uncertain to lay responsibility on natural or anthropogenic sources of climate change thus making the entire procedure difficult. x Inability to lay responsibility on any agency or individual due to the large number of varied actors involved in the process. x Carbon dioxide emissions remain in the atmosphere for more than 100 years hence blaming the current generation for the actions of the previous generations actions is faulty. x As human rights law requires identifiable violations by identifiable parties, the nature of this process makes it unsuitable to be considered by the human rights approach. Despite the above objections the resolution was adopted by UNDP, but these reasons make it very clear that in spite of the current dangers associated with climate change, major economies of the world are trying to escape responsibility. The US is the leading emitter of greenhouse gases releasing 25 per cent of the world’s share. 1. The Human Right to Life Though there has been a lot of debate about the exact definition of right to life with pertinent queries regarding foetuses and capital punishment and war deaths, the definition given by International Covenant on Civil and

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Political Rights (1976) – “every person has a human right not to be arbitrarily deprived of his life” – sums up what we are trying to articulate here. Climate change violates this view of human right by causing severe weather events like hurricanes, storms, floods etc. that in turn cause deaths. According to the Fourth Assessment Report of IPCC in 1999, 30,000 people died due to storms followed by floods and landslides in Venezuela. A slew of respiratory, cardiovascular and cerebrovascular problems were brought on by the heat wave of 2003 in Western Europe. 2. The Human Right to Health Again taking the definition provided by the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1976), which says right to health is “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, we believe right to health is a human right of all persons that prevents other people from causing any serious threat to their health. Any disease, illnesses or injuries will diminish and limit the ability of people to do any effective work. This aspect has been chronicled in detail in recent history with a lot of instances. Citing the Fourth Assessment Report of the IPCC we find that anthropogenic climate change is expected to: • increase the number of people suffering from ... disease and injury from heat waves, floods, storms, fires and droughts; • increase the range of malaria in some places but decrease it in others; • increase the burden of diarrhoeal diseases; • increase cardio-respiratory morbidity ... associated with ground-level ozone; and • increase the number of people at risk of dengue.

It is very evident that climate change is a direct cause of a variety of threats to the human right to health. 3. The Human Right to Subsistence Every person has the right not to be prohibited to earn his basic sustenance. The ICESCR affirms “the right of everyone to an adequate standard of living for himself and his family, including adequate food” and Article 25.1 of the Universal Declaration of Human Rights says the same. Moreover, the ICESCR adds that right to subsistence is “the fundamental right of everyone to be free from hunger”.

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To realize the effect of climate change on this right we can consider four mechanisms. First, an increase in temperature or global warming will cause drought and hence diminish food security. Nyong and Niang-Diop (2006) report that “in southern Africa, the areas having water shortages will have increased by 29 per cent by 2050, the countries most affected being Mozambique, Tanzania and South Africa”. Secondly, an increase in sea levels will cause loss of land to the sea impacting agriculture badly as in the case of Bangladesh. Thirdly, flooding will further enhance crop failure. Lastly, freak weather changes will also destroy agriculture. All of these mechanisms will deprive people of their means of subsistence. Hare (2006) says that recent research indicates that there will be “45–55 million extra people at risk of hunger by the 2080s for 2.5°C warming, which rises to 65–75 million for a 3°C warming”. Three approaches have traditionally been taken to explain climate change and its relation to human rights. The first one is the classic human rights approach that asserts that protecting the environment is a precondition for enjoyment of internationally accepted human rights. All negative effects on the climate have to be immediately recognized and mitigated. The second approach is the environmental approach that has been visible in international environmental agreements since the Stockholm Declaration in 1972; it believes human rights are an essential element for environment protection because all environmental protection can be guaranteed only through people’s participation. The third and the most modern approach is the integrative approach that asserts that environmental protection is itself a human right and hence both are indivisible and inseparable. It is really important to emphasize here that if climate change was not anthropogenic and was entirely natural then holding it responsible for violation of human rights would not have been a valid argument. All definitions of the three human rights described above assert that other people should not thwart any person from achieving that right. Hence, if a person loses his life due to purely natural causes, then human rights remain intact. However, climate scientists are unequivocal that climate change does emanate from human activities and this itself is sufficient ground for all preceding claims. Proceeding on similar lines we find that the human right to development and the human right to non-forcible eviction from place of habitation are also affected by climate change. People from coastal settlements and small island states are being forced to leave, as in the case of the Marshall and Solomon Islands.

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In the end, we see that if a rights-based approach is not adapted to climate change, then all other approaches will become unethical and people suffering the ill-effects of climate change will not get proper redress. The right to sustainable development, if accepted as a human right, will mean all development activities will have to meet the basic needs of the people. This will also lead to international collaborative dialogue and efforts that will make all initiatives directed to this end in a better and more efficient way. The human rights approach offers the best solution for an integrative approach to develop robust, substantive policy responses at national and international levels to mitigate the effects of climate change.

Linkage between Human Rights and Millennium Declaration Goals The Millennium Declaration was adopted by the UN General Assembly in 2000 containing a number of goals in the area of development assistance aimed to be achieved by 2015. Subsequently, 8 development goals have been finalized and termed Millennium Development Goals. The MDGs embrace poverty eradication, education, health concerns, building new coalitions for development and many more such issues. The international community has agreed to invest resources and work towards achieving these goals. In 2005, the UN held a summit in New York, to analyse the implementation of this declaration, inviting 170 countries. Let us now consider the common and diverging points that exist between the MDGs strategy and the RTD perspective.

Common Points The MDGs provide an inclusive strategy of alleviating poverty, whether due to income deprivation or lack of education or health. The points in common between RTD and MDG are: x Clear demarcation of responsibilities in the path towards development. x Considering poverty as a multidimensional phenomenon that is not caused only due to lack of money but also due to scarcity of means of education, health and other aspects.

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x Contemplation of the root causes of underdevelopment so as to treat the cause and not only the symptoms. Hence aspects like debt, market access, technology gap and lack of information are addressed.

Diverging Points x MDGs are not defined like human rights, but in terms of specific development outputs to be achieved. The MDGs are both timebound and quantified and aim to reduce poverty, hunger, disease, lack of shelter, and exclusion while on the other hand encouraging gender equality, education, and environmental sustainability. x The attention put on processes of development wherein MDGs only aim at outputs while RTD emphasizes output as well as the process hence taking the deontological approach. For example, the emphasis on participation for achieving a long term and holistic sustainable development levied by RTD is significantly missing in MDGs. x A different degree of completeness and inclusiveness of goals exists in both approaches. The concepts like non-discrimination, equality, share of benefits and sustainability though mentioned exhaustively by MDGs still do not appear to be fully considered. Issues like reducing poverty or increasing primary education can be approached by a variety of perspectives but these are not mentioned in MDGs. We can further see these differences by considering few examples. The RTD framework integrates all the relevant aspects of the development process whether clear identification of rights and correspondent obligations or equal emphasis on direct and indirect causes of underdevelopment. But comparing with MDGs by taking two goals: the goal on gender empowerment and the goal on the creation of a global partnership for development, we can clearly find a difference. The goal of gender empowerment should take a holistic view considering domestic violence, glass ceiling, equal remuneration, political representation and sexual harassment policy. However goal 3 only considers equality of access to education thus ignoring all the other aspects.

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Considering the fact that sexual discrimination is widely found in workplaces employing highly educated people this approach is most emphatically flawed. Similarly goal 8 (which talks about global partnerships for development) only considers numbers, ignoring stability and quality of aid. We can explain these glaring differences considering that RTD is a theoretical phenomenon while MDGs were arrived after a lot of diplomatic and political negotiations and compromises. However, recognizing the huge differences and trying to arrive at a more integrated approach can be very useful in the long term. Ensuring that multinational corporations are given a more crucial and integrated role in this field can also help to achieve the MDGs.

Conclusion As we have seen, the right to development has been defined in various manners and applied in a different direction than the human rights approach. In a world characterized by climate change which is necessitating unprecedented levels of international cooperation, we have arrived at many interventions that are crucial to bring RTD and HR approaches in line. The paper has also described the current scenario in international cooperation and various challenges being faced by developing countries in trying to make the developed world behave more responsibly for the damage inflicted by the latter. We have cited some instances of the effects of climate change on human rights to understand the loopholes in current policies. We have also seen that the RTD framework provides a comprehensive strategy for development cooperation. However, if at the theoretical level this strategy seems to satisfy the necessary requirements of coherence and feasibility, the situation of its political feasibility appears more complex. Besides the refusal of international community to recognize the existence of a binding duty to cooperate for development, in effect, development strategies implemented by international and governmental organizations still appear quite distant from the fundamental aspects of RTD. Hence ensuring political consensus on this issue is the need of the hour. We cannot have piecemeal and haphazard interventions especially as the victims are the most vulnerable section of society – the poorest of the poor. In the end, we would summarize by saying that the most important finding of this paper has been that we have to upgrade our policy and

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decision making internationally to the right to development approach as the human rights approach is clearly insufficient.

References and Further Reading Barsh, R.L. (1991). “The Right to Development as a Human Right: Results of the Global Consultation”, Human Rights Quarterly, Issue 13. Celestine Nyamu-Musembi and Andrea Cornwall. “What is the ‘rights-based approach’ all about? Perspectives from International Development Agencies” accessed at http://www.handicapinternational.fr/bibliographiehandicap/3Approche Droit/Approches/RBAIds.pdf on 12 January 2012. European Commission (2007). Furthering Human Rights and Democracy Across the Globe. Brussels: European Communities available at http://eeas.europa.eu/human_rights/docs/brochure07_en.pdf accessed 12 Jan 2012. Fukuda-Parr, S. (2003). “The Human Development Paradigm: Operationalizing Sen’s Ideas on Capabilities”, Feminist Economics, Vol. 9. Gutto, S. (2004). The legal Nature of the Right to Development and Enhancement of its Binding Nature, UN Doc. E/CN.4/Sub.2/2004/16. Hare, B. (2006). “Relationship between Increases in Global Mean Temperature and Impacts on Ecosystems, Food Production, Water and Socio-Economic Systems” in Hans Joachim Schellnhuber et al. (eds.) Avoiding Dangerous Climate Change. Cambridge: Cambridge University Press, p. 179. Kumar, A.K. (2004). MDGs and the Right to Development: Issues, Constraints and Challenges. New Delhi: Oxford University Press. Lankao, Patricia Romero (2008). Urban Areas and Climate Change: Review of Current Issues and Trends available at http://www.ral.ucar.edu/staff/prlankao/GRHS_2011_IssuesPaperfinal.p df on 12th Jan 2012. Marks, S.P. (2003). The Human Rights Framework for Development: Seven Approaches. Cambridge, MA: Harvard University Press. —. Implementing the Right to Development: The Role of International Law, available at http://www.fesglobalization.org/geneva/documents/HumanRights/Aug ust08_Publication_RtD.pdf on 12 January 2012. Nyong A. and Niang-Diop, I. (2006). “Impacts of Climate Change in the Tropics: The African Experience”, in Hans Joachim Schellnhuber et al.

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(eds.). Avoiding Dangerous Climate Change, Cambridge: Cambridge University Press, p. 237. OHCHR (2002). “Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies” at http://www.unhchr.ch/development/povertyfinal.html. Rees, Caroline and Vermijs, Davis (2008). Mapping Grievance Mechanisms in the Business and Human Rights Arena. Cambridge, MA: Harvard University Press. Sengupta, Arjun. Reports of the Independent Expert on the Right to development (First, Second, Third, Fourth, Fifth, Sixth). 1999, 2000, 2001, 2002, 2003, 2004. —. “The Right to Development as Human Right”, available at http://www.harvardfxbcenter.org/resources/workingpapers/FXBC_WP7--Sengupta.pdf accessed on 12 January 2012. Shelton, Dinah (2002). Human Rights, Health and Environmental Protection: Linkages in Law and Practice available at http://www.who.int/hhr/Series_1%20%20Sheltonpaper_rev1.pdf on 12 January 2012. Sitta, Alessandro. “The Role of the Right to Development in the Human Rights Framework for Development”, paper prepared for the Human Development and Capabilities Approach Association, p. 2. Available from www.capabilityapproach.com/pubs/5_1_Sitta.pdf. Solomon, S., Qin, D. and Manning, M. (2007). “Technical Summary” in Climate Change 2007: The Physical Science Basis-Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press, p. 60 Stern, N. (2007). The Economics of Climate Change: The Stern Review. Cambridge: Cambridge University Press. UNDP (1998). Integrating Human Rights with Sustainable Human Development, Available at http://www.undp.org/governance/docs/HRPN_English.pdf. Accessed on 12 January 2012. —. (2006). Applying A Human Rights-Based Approach To Development Cooperation And Programming, available at http://lencd.com/data/docs/252-Applying%20a%20Human%20Rightsbased%20Approach%20to%20Development%20Co.pdf. Accessed on 12 January 2012.

CHAPTER ELEVEN LIFE, ENVIRONMENT AND SUSTAINABLE DEVELOPMENT: AN INALIENABLE TRILOGY PRAVIN SINGH

Abstract Right to life, clean environment and sustainable development can only exist in an inalienable unity. A right combination of sustainable development and environmental preservation, to curb climate change and the disastrous impacts attributed to it, is the panacea for the evils of the modern world, the most amicable and efficient solution to hinder the hindrances on the way to achieving the fundamental human right, i.e., the right to life, liberty and security as envisaged by the Universal Declaration of Human Rights of the UNO. The paper aims at establishing the inevitable correlation between right to life, environmental preservation and sustainable development. The objective of the paper is to suggest ways and means to save mankind in its total neglect of the nature. The contribution it will make to knowledge will go a long way in carving a niche for the total and sustainable development of mankind powered by the synergy of growth, safe environment and peaceful, progressive and happy life.

Introduction The world is in a state of flux. Sweeping tides of globalization are taking the world in its ambit and nations are in a vigorous mode of industrializationpropelled development undermining the value of sustainability of the environment. The sword of Damocles is hanging over the very existence of life on earth thereby ready to breach our right to life. Humanity is ready to be crucified on the altar of development. The Goliath of pollution needs to be killed if life is to survive.

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A clean and pure environment is a fundamental human right. It is essential for the survival of human beings as well as all other species. To a large extent a pollution-free environment is also conducive to the proper upkeep of the non-living world. The right to life is an essential right and is considered indispensable for the very survival of man. Philosophers from the Greek days to the present, from Socrates and Plato to Hobbes, Locke, Rousseau, Marx and the post-modern visionaries, have all emphasized and strongly harped upon the necessity of right to life. Environment is a precondition for the fulfilment of the right to life. Thus, a pollution-free environment is a basic and fundamental right of every creature on earth. The devastating and unscrupulous steps taken by humans in the process of industrialization, modernization and globalization have actually created a situation which is fatally hazardous. The 7th International Summit of 192 countries at Copenhagen on 7 December 2009 in Denmark is one amongst the various earlier summits held in order to search for a sustainable solution to this problem of pollution. Every human being should contribute to the conservation of forests, glaciers, land, air, water and other natural resources given to us by nature. The willing and intelligent actions of humans could make it possible to enjoy the right to life and thereby the right to a pollution-free environment with sustainable growth. Over the past decade environmental concerns have increasingly been integrated into the management routines of both states and corporations. This is not to suggest that global environmental problems are becoming any less acute. On the contrary, despite some real achievements in controlling pollution, improving resource efficiency, preventing habitat destruction and protecting public health, the overall burden humans place on the global ecosphere continues to rise. On many fronts pressures already exceed critical ecological thresholds. Patterns of greenhouse gas emission, water use, biological resource harvesting, chemical release and soil degradation appear unsustainable. And yet environmental issues are more manifest in societal discourse, and better anchored institutionally, than ever before (Meadowcroft, 2006: 57). The world is currently engaged in a grand experiment, studying what happens when you release carbon dioxide, nitrous oxide, ozone and certain other gases into the atmosphere in larger amounts. The scientific community is fairly sure of the outcome. These gases absorb and emit radiation within the thermal infrared range which is the fundamental cause of the greenhouse effect. The greenhouse effect leads to melting the

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glaciers and the polar ice caps, changing the ocean currents and raising the ocean levels. It is not yet clear how long this will continue to happen, but it appears that the northern polar ice cap will be gone within seventy years, and that America’s famed Glacier National Park – a million-acre reserve in the state of Montana – will be without glaciers much sooner than that (Stiglitz, 2006: 161). Forcing individuals to pay for the consequences of their actions is necessary for economic efficiency. Internationally, no such recourse is available. Even when the actions of one country damage the well-being of another, there is little that the injured party can do. China’s pollution affects Japan. The Maldives and Bangladesh are almost certainly going to be seriously harmed by the rising sea level caused by global warming, to which the United States’ pollution is contributing significantly. Japan can’t sue China, the Maldives and Bangladesh cannot sue the United States and the other countries whose greenhouse gas emissions are leading to rising sea levels (Stiglitz, 2006: 164). The need for development is leading to an increasing rate of industrialization in the world which is the most important cause of global warming. There is need to understand the impact of global warming and make an effort to lessen it so that the negative repercussions can be curbed. This study uses the analytical approach to probe into the process of pollution questioning the very survival of humankind and challenging the right to life. Further, an earnest effort is being made to look into the probabilities of controlling environmental pollution and making the world a safer place to live in.

Global Warming The increase of the Earth’s average surface temperature, generally caused by the increasing concentration of greenhouse gases released by the burning of fossil fuels, deforestation and industrialization, is termed global warming. This brings about climate change which is considered to have a negative impact on human life and ecology. Etymologically, “ecology” is a term (Greek oikos, household or living place) first used by Ernst Haeckel in 1873 for that branch of biology which deals with the interrelationship between organisms and their environment. The word is also used in a more popular sense to denote concern for the protection of the environment from a wide range of pollutants. The growing awareness of environmental problems during the 1960s and

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1970s led to the formation of activist groups, particularly in the USA and Western Europe, with the result that governments introduced legislation to control the release of toxic substances into the environment. Major environmental disasters like the Bhopal gas tragedy in India on 3 December 1984, and the Chernobyl nuclear disaster in Ukraine on 26 April 1986, have put ecological issues firmly on the political agenda of most countries (Bullock, 1998: 247–8). In recent years, global warming has become an important cause of climate change and a fatal disaster waits for mother earth if the problem is not sorted out seriously. A meeting of the Nepali cabinet at the base camp of Mount Everest on 4 December 2009, to discuss the problem of the melting Himalayan glaciers, depicts the intensity of the problem created by global warming. The major rivers of India like the Ganges and the Yamuna, and the Brahmaputra of Bangladesh are in the process of drying up if the melting of the Himalayan glaciers continues. The human settlements at the base of the Himalayas would be washed away and mankind would have to bear the consequences of its own folly. A pioneering effort with regard to climate change was taken in form of the Copenhagen Summit of 192 countries in Denmark 7– 18 December 2009. The summit’s purpose was described as an attempt to agree the “first true global protocol for curbing emissions and countering the threat of comprehensive climate destabilization” (CaféSentido, 2009). Global warming is a problem which concerns all humans and has to be dealt with properly so that a larger danger can be averted. The fact that there has been a rise of about one degree Fahrenheit in the last century is a matter of concern and needs immediate attention. Sea levels have risen by some ten to twenty centimetres in the last century and this is a signal for larger problems in future like the submergence of coastal areas and islands. A one-metre rise would inundate low-lying areas around the world, from Florida to Bangladesh. The increase in the greenhouse gases in the atmosphere has led to unexpected climate change leading to various kinds of problems. Human activity like deforestation and massive industrialization has resulted into global warming which is bound to accelerate climatic changes. Droughts and floods, cyclones and hurricanes may change drastically if the Gulf Stream at the eastern coast of North America shifts its course marginally thus affecting the basic climate of Europe comprehensively (Stiglitz, 2006: 166).

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Bangladesh is going to bear the brunt of global warming very much as it is a low-lying delta good for rice cultivation. It is expected that the rising sea level will result in the submergence of one-third of the country and around 145 million people will have less space to survive. The Maldives is another country going to be badly hit by global warming. This small nation of 1,200 islands in the Indian Ocean with a population of around 330,000 will be totally submerged after a few decades if global warming continues at the present rate. The future might prove to be much worse than the worst being imagined if we do not control global warming instantly. International effort was witnessed in the Montreal Protocol signed in 1987 to phase out chlorofluorocarbon (CFC) gases, commonly used in refrigerator and air-conditioner coolants and found to be destroying the ozone layer, thereby allowing cancer-causing ultra-violet rays of the sun to penetrate the atmosphere. It was a success in the sense that CFCs were phased out fast enough. However that was not enough and we have failed to stop global warming till now. The UN created the Intergovernmental Panel on Climate Change (IPCC) in 1988 to assess the impact of climate change. The IPCC published three reports between 1990 and 2001 indicating the dangers of global warming.

The Earth Summit – Rio de Janeiro In 1992, more than 100 heads of states gathered at Rio de Janeiro in Brazil and resolved to do something about the problem of global warming. The Heads of the States at the United Nations Framework Convention on Climate Change agreed to stabilize greenhouse gas concentrations to control climate change. The United States and 152 other countries signed the agreement, which became the cornerstone of the international community’s attempt to address one of the most serious threats to our planet. A series of technical meetings followed, culminating in the next major worldwide conference on global warming, held in Kyoto in Japan in 1997 (Stiglitz, 2006: 168–9).

The Kyoto Protocol In 1997, more than 1,500 delegates, lobbyists, and heads of state from over 150 countries gathered in the historic Japanese city of Kyoto for the purpose of coming up with a treaty to cut greenhouse gas emissions worldwide. Their task was to devise a way of cutting emissions that was

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fair and efficient, that minimized the economic costs of reducing emissions and shared the burden equitably among the countries of the world. The resulting Kyoto Protocol made no immediate demands on the developing countries but called on each of the developed countries to cut back their emissions by specified amounts from 1990 levels – Europe as a whole by 8 per cent, the United States by 7 per cent, Japan by 6 per cent by 2012 (Stiglitz, 2006: 169). The acceleration of development in the field of science and technology has grossly transformed the environment much to the loss of mankind. Dangerous levels of pollution in air, water and earth, destruction and depletion of natural resources, ozone layer depletion leading to global warming and climate change, are all creating a disastrous and hazardous situation for the very existence of life on earth. Mankind needs to awake to this unavoidable demand of mother earth which has given life to millions of living creatures. Mankind cannot survive by neglecting nature which is suffering incorrigible and devastating losses at the hands of its most intelligent creation. The right to life is the pivot around which all human rights rotate. Thomas Hobbes, the English philosopher in the seventeenth century, did not allow even his sovereign, the all powerful Leviathan, to interfere with this most essential right. Hobbes agreed that man could rebel against the king only when his right to life was at stake. Locke emphasized the right to life as the most important natural right. Polluting the environment and thereby making survival difficult is a violation of human rights. It undermines life, livelihoods, culture and society which are fundamental aspects of human existence. It also leads to social conflicts and even war. The converse is also true. Human rights violations can lead to destruction of the environment. Such violations are manifested in loss of clean air and water, productive land, energy sources, food and health security and socioeconomic marginalization (Kothari and Patel, 2006: 9–10). “Civilization decivilizes man”, is what Jean-Jacques Rousseau, the French philosopher of the eighteenth century had said. Indeed, development has become a major problem for the protection of environment and the more we are developing the greater danger is being posed to nature. Instead of alleviating problems, development has become grossly anti-environment. Moreover, superfluity for some and scarcity for the majority has become another devastating characteristic of our development strategy. Development of a powerful section of society and impoverishment of the

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masses has become the order of the day. In a different context, development of the technologically advanced rich nations of the world which are contributing to the majority of the environmental degradation and the losses being suffered by the relatively poor and far less advanced countries is totally against the “polluter pays” principle of the developing nations. Today, America and China are among the largest carbon producers in the world (producing around 6,000 million tones of carbon per year) while India is well down the ladder (around 1,400 million tones per year) and the USA leads in the per capita carbon production in the world. Carbon emissions are a major global hazard and a severe cause of the devastating impact of climate change. The people dependent on the natural environment for their livelihood are bearing the brunt of large-scale industrialization. The majority of the Indian population depend on agriculture for their subsistence, and climatic changes due to global warming create difficulties for them in reaping a good harvest. The people living in advanced countries are equally prone to the havoc of nature’s destruction and pollution. Lung and skin diseases, waterborne diseases and congenital abnormalities due to toxins have become major health hazards to all people of the world. “Economic progress” has become a cause for environmental pollution. Along with mankind, around 5 to 50 million species of plants and animals living in a complex web of interdependent connections are also facing the risks of environmental hazards caused by humans. Human beings need to respect the right to survive of other species inhabiting the earth. The United Nations Conference on the Human Environment, held at Stockholm in 1972, first recognized ecological principles dealing with clean environment. It shared the common conviction that humans have the fundamental right to a clean environment so that they may live with dignity and good health. They also have the duty to keep the environment pollution-free for the coming generations. Environmental pollution is posing a serious threat to the right to life of people. A special mention needs to be made of the indigenous and tribal people of the world whose symbiotic relationship with nature and land and forests is the basis of their survival. Acquisition of tribal land in the name of “national interest” and the unscrupulous deforestation has become a major survival hazard for the tribals. The assimilation theory is no doubt true but the majority of tribals still depend on nature for their survival and their right to life cannot be taken away by the modernized world. Sustainable development and national well being can become feasible only if this large chunk of human

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population is allowed to survive and their life breath is not snatched away by the people of affluent societies and cultures. Modernization has to be limited by the needs of environmental protection; for if the end – that is, the peaceful survival of all creatures – is lost, what good would the means entail that we are following in the form of development of science and technology and sophistication of economics? The developed nations have been contributing to environment pollution since the beginning of industrialization in England in the sixteenth century. The developing countries in their effort to develop are moving on the process of industrialization at a fast pace thereby also contributing to environmental pollution and global warming. India is one of the fastest growing economies of the world and belongs to the group of emerging markets called BRICS (Brazil, Russia, India, China and South Africa). The constitution of India has several provisions to safeguard the environment, forests, flora and fauna of the country. The Supreme Court of India has also interfered whenever required with its landmark judgments to protect the environment. The provisions of the constitution of India and the Supreme Court judgments need elaboration.

The Indian Constitutional and Legal Context The constitution of India has specifically mentioned the need for protecting the environment. The 42nd Amendment Act of 1976 provided for the protection of forests and wild life which was incorporated in Part IV, Directive Principles of State Policy, Article 48-A of the Constitution of India. Further, Part IV-A of the constitution which talks about Fundamental Duties under Article 51-A (g) makes provision for the protection of forests, lakes, rivers and wild life. Specific mention of environment can also be found in the Concurrent List of the Seventh Schedule (Article 246) of the Constitution. In recent years, certain remarkable judgments of the Supreme Court emphasized the need for preserving the environment while highlighting the right to life as stated in Article 21 of the constitution.

Inter-Generational Rights to the Environment An issue that is increasingly coming up in discussions relating to the right to a safe environment is that of the rights of future generations. Do unborn generations have a legal right to a secure natural environment, much as we in the current generation would like to have? Even if one is to accept this in

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principle, how would this translate into law? An interesting precedence on this has been set by a 1993 judgment of the Philippine Supreme Court, in Minors Oposa vs. Secretary of the Department of Environment and Natural Resources. The Court allowed a class action by Filipino children, acting as representatives of themselves and future generations, arguing for a halt in timber cutting in national forests. The Court held that the petitioners were qualified to sue on behalf of current and future generations, and accepted their statistical evidence about how much forest cover is required to maintain a healthy environment for all generations. This is a critical issue for resolution and action on environment-related laws in India.

Environment Problems in India: Main Causes The last few decades have seen an increasing trend towards materialism which is becoming the ultimate goal of existence for very large parts of middle and upper class Indians. The entry of the mass media, now global in reach, has in no small measure contributed to this, as the easier availability of technologies and market mechanisms made consumer goods more accessible. Some of the main causes of environmental problems in India can be listed as: x Economic growth has necessitated a corresponding expansion in energy availability for industrial, agriculture and domestic purposes. Till recently, there has been little regulation of the environmental impacts of such expansion. x The level of environmental literacy is low, especially amongst decision- makers, and there is a gross under-valuation of the economic and material values of the environment. x The policies and programmes of the Central and State Governments have not incorporated environmental principles, with the result that many development projects have been conceived for short-term gains without considering their long-term ecological and social impacts. x The growing human and animal populations are making increasing demands on natural resources resulting in the exploitation of resources in an unsustainable manner. x The general indifference of the industrial sectors on aspects of environmental safety and protection has led to the spread of avoidable air, water and soil pollution. x The inability to convert the oft-repeated rhetoric of growth with equity into reality and the neglect of the livelihood needs of the

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adivasis and rural people have resulted in persistence of real poverty (including scarcity of resources). x The uncontrolled consumerism of the upper classes, which seem completely oblivious to the limits of resource use, has put serious pressure on natural resources. However, the fundamental causes are more deep-rooted. The factors responsible for environmental problems in India are herein analysed.

Globalization and its Aftermath Movements against the negative forces of globalization have brought together on a common platform the activists and campaigners on human rights, ecologists, women’s rights, children’s rights, pacifists and many others. A series of massive protests in many parts of the world have begun thereby increasing networking in the search for ecologically and socially responsible development alternatives such as the World Social Forum. A number of Indian groups and movements are also participating in this international networking.

The Ill-Effects of Mining In early 2003, the environmental group Kalpavriksh brought out a detailed, nation-wide study of the impacts of mining on natural ecosystems, wildlife, and people. Vagholikar and Moghe (2003) have highlighted the following points: • • • •

•

Mining activities are destroying some of India’s most ecologically sensitive areas, including catchments that provide water security to millions of people. At least 90 wildlife sanctuaries and national parks, and hundreds of other ecologically sensitive areas with unique biodiversity and wildlife, are threatened. Culturally and economically fragile communities residing in these areas, including many adivasi groups, are seriously affected by mining. Since the economic liberalization phase in the 1990s, the mining sector has opened up thousands of square kilometres of the country for reconnaissance and prospecting activities, many of which are taking place in some of our most ecologically fragile areas. Many mining activities are in gross violation of environmental

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•

•

policies and laws, of the constitutional guarantees to adivasis and other communities, and of the National Mineral Policy’s own assurance that “ecologically fragile and biologically rich areas” would be avoided. The government of India and state governments need to take urgent steps to declare ecologically and culturally sensitive areas as being off-limits to mining, to commission an independent assessment of the impacts of the mining sector, to make necessary changes in the mining policies and laws, to ensure ecological restoration of already mined areas, to provide alternative employment to workers before closing down mines in ecologically sensitive areas, and to set up an expert group to explore ways of sustainable material and energy use, including the reduction of luxury and wasteful consumption of minerals. Communities, people’s groups, and NGOs need to unite and network more strongly, to resist the increasing take-over of sensitive areas for mining.

Damage by Large Dams Water is an essential natural resource. Some of the most violent conflicts have arisen over conflicting claims to water, some of the best-known examples being from the so-called “hydraulic” states where large-scale irrigation were one means to retain control over large command areas. Rural and urban areas often have conflicts over water sharing. Since independence, these structures have been seen as potent symbol of progress, the “temples of modern India” in Prime Minister Jawaharlal Nehru’s terms. Further, many mega-development projects like big dams, while delivering undoubted benefits, have caused severe negative environmental and social impacts. The construction of large dams brings about conflicts over the usage of water. By far the dams’ most direct impact on people is displacement of people from the areas being submerged, or being taken over for canals, construction colonies or other dam-related infrastructure. No official estimate exists, but several million people have been uprooted. In the past, there was no resettlement or rehabilitation at all; people were simply told to leave and to fend for themselves. Increasing concern about the social impacts of such processes has forced the state to institute resettlement and rehabilitation (R&R) programmes in some states, but shockingly, there is

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still no comprehensive R&R policy for the country. The physical act of involuntary displacement occurs at one moment, though it sets in motion a succession of chronic, inevitable and traumatic events due to the disruption in the established pattern of life of the displaced people. Production systems are dismantled, close-knit kinship groups are scattered, long established relationships are disrupted, traditional sources of employment are lost, market-links are broken and several cultural customs get dissolved. The systems of social hierarchy and leadership lose their credibility, and ancestral symbols and shrines, graves and monuments and an entire sense of history and cultural identity are irretrievably lost. The obvious result of such sudden changes can be seen both in social and economic impoverishment. The psychological trauma is profound because people find themselves landless, jobless, without food, shelter and access to community resources. It is an irony of fate that the ones who suffer the most from these development projects are called the beneficiaries of the compensation and rehabilitation packages. The commonly accepted belief that “some people have to pay the price for reaping the benefits of development” is also conveniently lopsided in favour of urban citizens, industrialists and rich farmers, who actually reap most of the benefits. Displacement is especially disruptive in the case of adivasis. They have to leave behind their land and the forests upon which they depend for their livelihood. Many of them have no skills to take up any other activity for a living. The compensation is poor, both in monetary terms and in terms of the socio-cultural changes forced on them by these projects. Indeed, the experience of dam oustees in India validates the grim judgment of the anthropologist Thayer Scudder that “next to killing a man, the worst you can do is to displace him”. A series of investigations by Indian Peoples Tribunal on Environment and Human Rights has brought out the widespread suffering caused by large dams such as Sardar Sarovar, Maan, and Bargi. Experience from dozens of dams suggests that rehabilitation has usually been considered an obstacle in implementing a project and an extra financial burden. The authorities always try and get away with the minimum. Cash compensation is usually inadequate, and the much more desirable policy of land for land is almost impossible to implement in the case of large-scale displacement. Facilities provided differ from project to

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project. Rehabilitation and Resettlement is usually treated as a “technical” project, handled by engineers, rather than as a human and sociological issue. Several critical resources available at the sites of original residence are almost never provided at the R&R sites, e.g., forest resources, grazing lands, fishing opportunities and so on. Rich farmers often manage to get higher compensation and better alternative project lands, whereas the poor keep running from pillar to post. Most distressing is the fate of families, as in the Singrauli area of eastern India, who have been displaced four times over: successively by dams, mines, power stations and urbanization. Shattered completely, such families have simply lost the will to live. Rather than learning from the mistakes of the past, India is going for a rapid expansion of water mega-projects. In the north-eastern region alone, many dams are being considered, mostly for power generation meant to be exported to the rest of India. The environmental and social costs of these will be colossal, and there is considerable opposition from people’s groups in most of the north-eastern states. Even more ambitious is the so-called River Linking scheme that the central government has proposed. This will involve several major dams and massive canal-building to transfer water from one river basin to another, with the assumption that the former has water in surplus. Several experts have raised questions about the technical and financial feasibility of this scheme, but more worrying is the potential ecological and social disruption it will cause, as dams and canals will lead to major destruction of natural ecosystems and displacement of people. The transfer of water could also bring with it unwanted organisms, and the reduction of water flowing into the sea could cause coastal erosion, collapse of marine fisheries and disruption in the lives of countless fisher folk (as reported in a series of “Survey of Environment” articles in The Hindu in 2003).

Industrialization Haphazard and toxic development is a major problem today. For decades, industrialization has been equated to development all over the world. However, as elsewhere, few people in India have paid attention to the dark side of industrialization, especially to the growing dangers it poses to the health of people. Many people are dying a slow and steady death brought about by the growing pollution of the general environment and the increasing hazards in the occupational environment while others are dying in a cataclysmic way as happened in Bhopal where the chemical disaster at the Union Carbide pesticide factory at Bhopal rudely woke India to the

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fact that the country’s industrialization has reached a stage when even catastrophic accidents can be expected. Industrialization is creating a high-risk environment for everyone, though it is ultimately the poor who face the highest risks and dangers. The poor get the dirtiest, most hazardous of jobs and poverty forces them to live in an unhealthy environment. India faces a disastrous “double burden” of disease. While most old ones continue to be rampant, newer ones are making rapid strides. Industries, which are known to produce potentially toxic and hazardous wastes, are pesticides, dyes and pigments, organic chemicals, fertilizers, non-ferrous metals, steel and chloral kali manufacturing plants. Chemical industries, including the pesticides industries, produce highly toxic wastes. The disposal methods of these industries are still very primitive, with landfill being the major practice. Generally, industries neutralize the toxic waste-water from the plants with lime and the neutralized liquid effluents, which are still highly toxic, and discharge into rivers and ponds with little or no treatment. The sludge and other solid and semi-solid wastes are disposed of on fallow public land. This in turn, among other ills, creates filthy conditions simultaneously developing secondary health hazards – those of mosquito-borne diseases. The range of direct and indirect health hazards from these chemical effluents is as wide as the chemical components themselves and the consequences may make their presence felt immediately or may even have a more residual effect. The hazards may vary from simple skin disorders to more complex and fatal illnesses such as cancer and organ damage or dysfunction. The perils from the use of some of these compounds are also marked at various stages of their processing – right from their acquisition as raw material, handling during manufacture and disposal of their effluents, to their use as end products and their disposal post-use, to be dumped on bare ground and chemicals from the sludge seeping into groundwater.

Nuclear Power The invention of nuclear power was initially heralded as providing electricity that was “safe, clean, and too cheap to meter”. We now know that it is, on the contrary, very unsafe, highly polluting and very expensive. Indeed, it is a dangerous technology that has left a legacy of irretrievable contamination and a trail of disease, death and futile costs. This industry over the world has failed to demonstrate that it can safely deal with the inevitable consequence of the nuclear fuel cycle and its highly dangerous

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wastes. Today the nuclear empire in India consists of uranium and heavy earth mines, fuel fabrication factories, heavy water plants, nuclear power stations and spent fuel reprocessing plants. But projects undertaken by India’s Department of Atomic Energy (DAE) are described more as environmental liability than ecological assets.

Natural Disasters Natural disasters such as floods, droughts and famines are quite frequent in India as elsewhere in the world. The number of people being killed or affected by them is on the rise. Environmental destruction is raising the hazard-proneness of the affected areas, and increasing poverty is making large and growing numbers of people more vulnerable to these disasters. Poor people in poor countries are affected the most when a natural disaster strikes. Within a country, natural disasters are almost choosing their victims by class – the poor living on the environmental margins are the worst hit. Many natural disaster experts argue that the so-called natural disasters like floods, droughts, cyclones, landslides and earthquakes are events having equally devastating social and political impacts. Natural disasters are no longer “disaster events” but more like “disaster development processes”. The great famines of the early part of this century in eastern India, for instance, are now acknowledged to be more a result of the political and economic regimes prevalent at the time. Given India’s population density, consumption patterns and the attitudes of a growing number of people, pressure on our fragile ecosystems will only increase. Humans are an integral part of nature and whatever happens to nature happens to humans, most often with an immediacy that is not captured in the crisis of global warming or ocean pollution. Indeed, natural calamities in many instances have not remained entirely “natural” either in their occurrence or in the devastation they cause. They have, in fact, become accentuated by, and sometimes even created by, human actions. The indirect effects of mass degradation and over-exploitation of natural resources show up in more destructive forms such as “natural calamities”. Floods, landslides, cyclones, famines and earthquakes are known to have stimulated or catalysed some of the “developmental” projects such as desilting, deforestation and controlling soil erosion; reclaiming lands from shorelines; curtailing mismanagement and over-exploitation of water resources; building of large dams, hydroelectric power plants etc.

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The Problem of Floods In view of their geographical conditions, states like Bihar and Assam have been prone to both droughts and floods. The losses of property and life these “natural” calamities have caused in the past have been high. In its zeal to curb the destructive phenomena, the Bihar government adopted a completely misguided and short-sighted solution to control floods. Embankments were constructed around rivers to prevent damage from floods, as it was believed that when a river is strait-jacketed between embankments its spills are prevented, protecting the area outside them from floods. However, several crucial consequences were conveniently ignored. Sediment in the river-flow is prevented from spilling over and slowly gets deposited within the embankments, raising the bed level of the river. The embankments must therefore be constantly raised, but there is a practical limit to doing this. Fertility of the land decreases because the fertilizing silt no longer spreads over it. The embankments stand as a wall between the river and its tributaries, preventing the normal flow of water and thereby causing water logging in the countryside. Seepage of the river water into the countryside compounds the problem. The tributaries cannot discharge their water into the river and the sluice constructed to facilitate the process cannot be opened during the monsoons for fear of the main river water entering the tributary, and flooding newer areas in the protected countryside. Embanking the tributaries does not help either. It only locks the rainwater between the embankments of the main river and the tributary.

Urbanization India is no exception to urban growth internationally. About one-fourth of its population is already in urban areas and thousands of people are pouring in from rural areas every day. Unable to cope with this influx, almost every Indian town and city is well on its way to becoming an urban nightmare. Chaotic traffic, mushrooming slums, piles of garbage and high levels of air and water pollution are making life miserable for residents. This is leading to an increasing incidence of health problems. Once again, the worst hit is the poor, who are often jobless and have to scrounge around for water, food and shelter. The urban environment has polluted at hazardous levels. Towns and cities are drowning in industrial and domestic toxic wastes and industrial pollution. Water supply agencies have failed in most parts of the country to supply clean and adequate water.

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People are turning more to the use of groundwater, further depleting and polluting its reserves. Rivers and streams passing through urban areas are all turning into open sewers. Most of the air quality counts in India are well above World Health Organization (WHO) guidelines, literally making India’s urban centres lethal gas chambers. The urban air is facing massive pollution due to the unprecedented spurt in the number of vehicles. An Indian city violates not only the rights of its own dwellers but also the rights of rural communities, whose resources are siphoned off to feed the enormous appetite of the city. The exploitation of land (including topsoil for bricks), forests, water, minerals, fish and other such inputs needed for the wasteful consumerism of urban dwellers, is a direct cause of the dispossession of livelihood resources that the rural poor are dependent on.

Need for Survival – Save the Environment The conservation of environment and human development are not antagonistic to each other and should basically go hand in hand. We cannot afford to devour nature for the sake of the temporary progress of mankind. We have to be visionaries and make the earth safe for our future generations. At the same time, the right to life of all creatures must be kept in mind before we get going with our ambitious development projects through industrialization and sophisticated technology. Solutions for development with ecological preservation have come from communities rooted in their culture, from government officials who go off the beaten track, from NGOs who dare to question the system, and from individuals who think beyond their own selfish ends. In all these cases, the essence of the answer has been the marriage of ecological ethics and human values and rights. What has also been critical is that these answers have exploded the myth of the single answer, a sort of universal blueprint which can be implemented everywhere. Such a blueprint will not work, because there is a diversity of ecological situations, diversity of cultural situations, diversity of governance structures, and so on. Nature has not found one universal solution to the problem of finding food, finding a mate, and surviving against all odds. Humans would do well to learn from such diversity.

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Technology is a central component of environmental problems and solutions. But political debates and policy initiatives relating to technology and environment are often skewed. Some green critics dismiss the bulk of established environmental policy as a mere “technological fix” that fails to appreciate that genuine social change is required if humans are to reduce pressures on natural systems. Emphasis on technological innovation is seen as a distraction when basic values, ways of life and the whole system require urgent change (Carter, 2001; Dobson, 2000). On the other hand, vocal critics of environmentalists’ concern with “natural limits” express a quasi-mystical faith in the efficiency of markets and the power of human ingenuity to deliver technological solutions to the environmental ills (Dryzek and Scholsberg, 2005). Their point is that, when problems of pollution and resource scarcity reach the point that they really matter (relative to the social needs), solutions will be forthcoming. Although rarely encountered in their most extreme variants, these divergent perspectives permeate discussion of environmental issue. For their part, governments have typically adopted a more pragmatic approach, either funding research and development in environmental technologies (through public laboratories, universities or tax incentives for business), or using regulation to drive performance improvements. More recently, they have seen environmental technologies as a growth opportunity which can win profitable markets for national industries (Meadowcroft, 2006: 70). Notwithstanding arguments which suggest that the role of state has diminished and there has been an “erosion of sovereignty” in the era of globalization, states in the twenty-first century still appear central to any serious attempt to come to terms with environmental pressures. As a number of analysts have recently argued, claims about state powerlessness have been exaggerated (Weiss, 1998). States still command impressive financial and organizational resources. They remain the foundation of civil authority and the principal actors on the international stage. Moreover, states posses established democratic structures that provide a critical context for taking and legitimizing collective decisions, including decisions about the environment. Even within the European Union, states remain gate keepers to implementation, and play the decisive role in making policy and determining the course of future integration. Moreover, one could argue that, to the extent that member states cede authority to the Union, the EU itself acquires state-like characteristics. It is also worth noting that many of the reforms introduced

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over the past two decades (jettisoning failing industries, reducing subsidy programmes, cutting public deficits) have actually enhanced state capacity for societal intervention, while others (for example, public–private partnerships) can be understood as experiments with exercising influence in altered circumstances. Activities of civil society and business are dynamic and change-oriented and they need to supplement governmental efforts to curb environmental pollution. Pooled knowledge, collaborative learning and joint initiatives are required to boost eco-friendly and sustainable development.

Solutions Various solutions to save the Earth from the scourge of pollution need to be carried out. First, “development” projects and processes that are destructive should be avoided. Second, traditions which are still relevant need to be revived, in the same or modified manner. Third, synthesizing traditions and modern processes and knowledge into new combinations need to be investigated. Fourth, some key terms and paradigms of development require a redefinition. Fifth, attitudes towards nature and fellow human beings need reorientation. Last, but not least, restitution by the process of handing back of territories, resource rights, and knowledge ownership should be experimented with. A clean and pollution-free environment is our fundamental human right and we ought to enjoy it along with all other creatures which have equal and inalienable right to pollution-free and life-generating environment. Progress and environment are complementary to each other and not mutually devastating. Most of all, sustainable development is equally essential for our survival and for the existence of life on earth. The right to life of every creature is inalienable and of utmost importance and a clean and healthy environment is at its very core. Rightly, we should do unto nature as we would like nature to do unto us.

Notes 1 For the full reports, see http://www.iptindia.org/main/ipt.php/Page=Inquiry&Inquiry=Displacement 2 See www.toxicslink.org

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References Bullock, Alan (ed.) (1998). The Fontana Dictionary of Modern Thought. London: Fontana. CaféSentido (2009). “Copenhagen Conference Opens, with 192 Nations in Attendance”, 7 December. http://www.casavaria.com/cafesentido/2009/12/07/5297/copenhagenconference-opens-with-192-nations-in-attendance/ accessed 29 June 2012. Carter, Neil (2001). The Politics of the Environment: Ideas, Activism, Policy. Cambridge: Cambridge University Press Dobson, Andrew (2000). Green Political Thought, 3rd edition. London: Routledge. Dryzek and Scholsberg, D. (2005). Debating the Earth, 2nd edition, Oxford: Oxford University Press. Kothari, Ashish and Patel, A. (2006). Environment and Human Rights, New Delhi: National Human Rights Commission. Meadowcroft, James (2006). “Environmental Political Economy, Technological Transitions and the State”, in Anthony Payne (ed.) Key Debates in New Political Economy. London: Routledge. Stiglitz, Joseph E. (2006). Making Globalization Work, London: Allen Lane, Penguin Books. Vagholikar, N. and Moghe, V. (2003). Undermining India: The Ecological and Social Impacts of Mining. Pune: Kalpavriksh. Weiss, Linda (1998). The Myth of the Powerless State. Cambridge: Cambridge University Press.

CHAPTER TWELVE THE DOMESTIC VIOLENCE ACT 2005: EMANCIPATION FROM CULTURE OF SILENCE AND SUBJUGATION; A STUDY OF WOMEN IN KERALA J. ANUJA AND SARA NEENA T. T.

Abstract Violence takes many forms and can happen all the time or once in a while. Victims can be of any age, sex, race, culture, religion, education, employment or marital status. Although both men and women can be abused, most victims are women. Children in homes where there is domestic violence are more likely to be abused and neglected. Most children in these homes may have emotional and behavioural problems. According to available global statistics, one out of every three women has experienced violence in intimate relationship at some point in her life. Domestic violence can be understood as human rights violations of public concern. Women undergo subordination within intimate relations and this fits more directly into a human rights perspective. The women experiencing abuse do not access any form of medical care for either psychological or physical injuries. A great majority of women in abusive relationships stay silent about their sufferings. The study provides an understanding of the degree of domestic violence being experienced by women in Kerala and how far these women fight against violence and get their right and rebuild their life by legal and judicial responses. The study was conducted in Thrissur District in Kerala; respondents were selected through a simple random method. A structured interview schedule was prepared based on the general objective of the study and the same was adopted for eliciting information.

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Introduction Violence against girls and women is a major health and human rights issue. At least one in five of the world’s female population has been physically or sexually abused by male(s) at some time. Violence operates as a means to maintain and reinforce women’s subordination and India is no exception. Domestic violence is a reality in Indian society too. An Indian woman faces abuse, rape, early marriage and dowry killings; if she survives all this, as a widow she is discriminated against and given no rights over inheritance or property. Human rights, as the very term indicates, represent the right of all human beings of both sexes. Human rights are nature-given rights. Both men and women have equal access to these rights. No discrimination can be allowed or imposed in the exercise of these rights. Women in independent India have more rights than their counterparts in many other countries of the world, but most of our women are not very conscious of these rights. The level of awareness of rights by women depends upon their individual background, social environment, economic base and subjective perception of women. There is no legal or constitutional barrier to equality – there is only the social barrier. Indian women seek a respectable and meaningful social status which is free from all sorts of exploitation. There is no urge in them to outsmart men. They want their interests to be protected and problems to be solved. Moreover, they expect a change in the attitude of men towards them and their status. They expect greater freedom and a socio-economic environment free from all types of exploitation. Domestic violence against women is an age old phenomenon. Feminist theory asserts that the effect of patriarchy is the most important factor that perpetuates domestic violence against women. The patriarchal system is the dominant force which perpetuates domestic violence in Western society (Stephenson, 2003). It is the most serious violation of all basic rights that a woman suffers in her own home at the hands of family members. Domestic violence in India is a function of the status of women in society and cultural notions regarding gender roles. Even before birth, women face glaring gender discrimination. This pervasive gender discrimination is deeply rooted in the notion of patriarchy endorsed through a woman’s life, from her childhood to death. Even in contemporary Indian society, women are viewed as the property of men and are measured by their ability to produce male children. For women, marriage imposes additional familial expectations such as dowry practice,

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assimilation into joint family and increased responsibilities as wife, mother and daughter-in-law. Domestic violence is faced by women regardless of age, education level, socio-economic class and family living arrangements. Overall one-third of women aged 15–49 have experienced physical violence and about one in ten have experienced physical and sexual violence. This figure translates into millions of women who have suffered and continue to suffer at the hands of husbands and other family members. Domestic violence is often not recognized as an abuse of human rights or there is a tendency to think that the government cannot do anything about this type of violence because it takes place in the private sphere within the home in a relationship, or between two married people. A national crime report (1991) revealed that an Indian woman is abused by her husband every 33 minutes. Sarada (2008) states that victims of domestic violence often feel helpless, are depressed, have a poor self-image and suffer from self-devaluation. They have stressful family lives and lack social maturity or social interpersonal skills. The partners of most of these victims are alcoholic. The patriarchal attitude of Indian society, which perceives woman as an object rather than subject, gives her a low status in society. Religion too expects a woman to be submissive, respecting her in-laws and treating her husband like lord and master. Kerala is considered a model for the rest of India. It shows the highest gender development index in the country. It has the highest literacy rate, educational achievement, sex ratio, improved health status, life expectancy, job opportunities and so on. Even so, the status of women is low. There is a high rate of violence against women both inside and outside the home. Crimes against women, ranging from domestic violence to sexual assaults, are also very high in Kerala. Over one-fifth of the national aggregate of crime against women in the year 2010 was committed in Kerala. The latest National Crime Records Bureau (NCRB 2012) figures comparing incidence of crime with the state population, note that Kerala is the most affected by the crime. Figures compiled till 2010 show that Kerala has a crime rate of 424.1, more than double the national average of 187.6. One of the important indicators which provide a different picture of the status of women in Kerala is the increase in instances of gender based violence against women. There have been increasing instances of gender based violence, particularly domestic violence against women in Kerala (Kodoth and Eapen, 2005). A study conducted by INCLEN (International

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Clinical Epidemiology Network) and ICRW (International Centre For Research on Women) on domestic evidence in Kerala found that as high as 62.3% and 61.61% of the women in Kerala are subjected to physical torture and mental harassment as compared to 37% and 35.5% at the national level. The same study found that Thiruvananthapuram, the capital of Kerala, ranked first among the five cities in India in the prevalence of domestic violence against women (ICRW, 2002) A study by Sakhi for the Department of Health reported 40% violence against women. There are increasing reports of dowry related violence, rape and other atrocities against women in Kerala. Wife beating has been found to be the most common and yet the least reported of atrocities against women in the state. This study concentrates on the district of Thrissur, known as the cultural and educational centre of Kerala. Thrissur has been called the most women-unfriendly district in the state. According to district figures for gender-based violence in the year 2010–11, the largest number of assault cases on women have been reported from Thrissur and the second largest number of case of divorce have also been reported from Thrissur. Is there a paradox between high literacy rate and at the same time the high number of crimes against women? Not only is there violence against women, there is also a culture of secrecy about this violence. This violence and secrecy is because of the patriarchal nature of society and the role of religion. Both expect the women to play a submissive role which is expected to make them good daughters and good wives. Women also tolerate violence because of the lack of family and social support, and economic dependence. It is in this context that the protection of women by the Domestic Violence Act 2005 has been a revolutionary step in assisting women to raise their voice against domestic violence. The Domestic Violence Act 2005 promotes the rights of women guaranteed under Articles 14 and 15 of the Indian Constitution. The Act is a comprehensive piece of legislation offering protection from all forms of domestic violence. The Act was brought into force with effect from 26 October 2006. The Act contains five chapters and 37 sections. It provides for comprehensive and speedy relief within a specified timeframe. Previously, the remedies available to a victim of domestic violence in the civil courts were limited (see section 498–A of the Indian Penal code). Section 2 (a) of the Act enables a woman to seek protection against any adult male family member who has been in a domestic relationship with her. This includes her own father, brother, her husband or male partner as

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well as his male and female relatives. Thus, a father-in law, mother-in law or even siblings of the husband and other relatives can be proceeded against even if they are not living under the same roof. The Act ensures speedy justice as the court has to start proceedings and hold the first hearing within three days of the complaint being filed in court and every case must be disposed of within a period of 60 days for protection officers and the whole machinery by which to implement the Act. The major orders under this Act are as follows: Section 18 – Protection Order; Section 19 – Residence Order; Section 20 – Monetary Relief; Section 21 – Custody Order; and Section 22 –Compensation Order. The salient features of the Act are as follows: x The Act seeks to cover those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or a relationship in the nature of marriage, or adoption; in addition, relationship with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the Act. x Domestic Violence includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and economic. Harassment by way of unlawful dowry demands on the woman or her relatives would also be covered under this definition. x One of the most important features of the Act is the woman’s right to secure housing. The Act provides for the woman’s right to reside in the matrimonial or shared household, whether or not she has any title or rights in the household. This right is secured by a residence order passed by a court. These residence orders cannot be passed against anyone who is a woman. x The other relief envisaged under the Act is that of the power of the court to pass protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both the parties and causing violence to the abused, her relatives and others who provide her assistance in protection from the domestic violence. x The Act provides for appointment of Protection Officers and NGOs to provide assistance to the woman in medical examination, legal aid, safe shelter, and so on.

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x The Act provides for breach of protection order or interim protection order by the respondent as a cognizable and non-bailable offence punishable by imprisonment for a term which may extend to one year or by a fine which may extend to Rs. 20,000, or both. Similarly, non-compliance or discharge of duties by the Protection Officer is also sought to be made an offence under the Act with similar punishment.

Methodology Statement of the Problem Violence takes many forms and can happen all the time or once in a while. Victims can be of any age, sex, race, culture, religion, education, employment or marital status. Although both men and women can be abused, most victims are women. Children in homes where there is domestic violence are more likely to be abused and neglected. Most children in these homes may have emotional and behavioural problems. According to available global statistics, one out of every three women has experienced violence in intimate relationship at some point in her life. Domestic violence can be understood as human rights violations of public concern. The women experiencing abuse do not have access to any form of medical care for either psychological or physical injuries. A great majority of women in abusive relationships stay silent about their sufferings. This study provides an understanding of the degree of domestic violence being experienced by women in Kerala and how far these women fight against violence and get their rights and rebuild their life by legal and judicial responses. Hence, the following specific objectives were set forth for this study: 1. To understand the socio-economic characteristics of the victims 2. To understand the type of violence 3. To understand the type of support received by the women to fight against violence 4. To know their present living arrangement 5. To know their awareness and attitude towards the Act, justice system etc.

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Conceptual Definitions 1. Domestic Violence Any act of omission or commission or conduct of the respondent shall constitute domestic violence in case it harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical of the aggrieved person or tends to do so, and includes causing physical abuse, sexual abuse, verbal, emotional or economic abuse, or harasses, harms, injures or endangers the aggrieved person with a view to coercing her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security, or has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned above or otherwise injures or causes harm, whether physical or mental to the aggrieved person. 2. Physical Abuse Physical abuse can be defined as any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force. 3. Verbal and Emotional Abuse Verbal abuse includes insults, ridicule, humiliation, name calling and insults or ridicule, especially with regard to not having a child or a male child, and repeated threats to cause physical pain to any person in whom the aggrieved person is interested. 4. Economic Abuse Economic abuse means deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any stridhan, property, jointly or separately owned by the aggrieved person, payment of rent related to the shared household effects, any alienation of assets whether movable or immovable, valuable, shares, securities, bonds and the like, or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person and prohibition on restriction to continued access to resources or

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facilities which the aggrieved persons is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household (legal definition under section 3). 5. Sexual Abuse Sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women (legal definition under section 3). 6. Aggrieved Person Aggrieved person means any woman, who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent (legal definition under section c). 7. Domestic Relationship Domestic relationship means a relationship between the persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family (legal definition under section 3). 8. Victim According to Webster’s dictionary a victim is “one who is injured, destroyed, sacrificed under any of various conditions”. 9. Perpetrator One who does or performs or commit something evil, criminal or offensive (Webster’s New World College Dictionary).

Pilot Study The investigator conducted a pilot study with the help of women from Thrissur District and family counselling centres. The investigator also contacted advocates dealing with such domestic violence cases in order to determine the feasibility of conducting the study.

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Universe All women victims of domestic violence who have registered under the Protection of Women from Domestic Violence Act 2005 in Thrissur district of Kerala. Sampling Techniques Only those cases registered on the basis of the Protection of Women from Domestic Violence Act 2005 were considered. First class, second class and third class judicial magistrates’ courts are taken as study area. Out of the total 263 registered cases collected from the three magistrates’ courts in Thrissur, 35 cases (10% to 14%) were randomly selected. Research Design The research is descriptive in nature. The study aims to explain the various types of violence experienced by the victims and also the way they approached the court for justice. Tool for Data Collection A well-structured interview schedule was used to collect detailed information from the victims of domestic violence. The interview schedule consists of questions on personal data, type of violence, type of support received, level of awareness and attitude towards the act, and so on. Pre-Test After formulating the interview schedule, the tool was pretested among five victims in order to find out the drawbacks in the interview schedule. Necessary modifications were made in the interview schedule after pretest. Both primary and secondary sources of data were gathered for the study. Secondary sources included books, survey reports, court registration books and studies, literature, other relevant publications pertaining to domestic violence.

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Sources of Data S. No 1. 2. 3. 4.

Age Group Below 30 30-40 40-50 50+ Total

Number

Percentage

5 22 6 2 35

14.3% 62.9% 17.1% 5.7% 100%

Data Collection Primary data was collected by using the interview scheduled by the investigator who personally interviewed the victims. Victims were contacted with the help of lawyers and counsellors. Lawyers and counsellors from the family counselling centre also provided valuable information and data related to the study. Analysis Collected information was coded and transferred into a master chart. Simple statistical techniques like percentage, mean and so on were applied for analysing the data. Chapterization The study report is divided into four sections. The first section deals with the introductory aspects and review of literature. Research methodology has been detailed in the second section. The third section deals with the analysis and the last section deals with the summary, finding, suggestions and conclusions. Limitations of the Study The study was conducted among a small sample within a limited time. The investigator only could take 35 samples. So generalization has its own limitations. This section presents the analysis and interpretation of the data collected from the women who were victims of domestic violence.

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Tables Table 1: Age Group of the Respondents Sl. No 1. 2. 3. 4. 5.

Education

Number

Percentage

4 4 5 19 3 35

11.4% 11.4% 14.3% 54.3% 8.6% 100%

Number

Percentage

Primary SSLC P DC UG PG Total

Table 2: Education of the Respondents Sl. No 1. 2. 3. 4. 5.

Education Primary SSLC P DC UG PG TOTAL

4 4 5 19 3 35

11.4% 11.4% 14.3% 54.3% 8.6% 100%

Table 3: Employment Status of the Respondents Sl. No 1. 2.

Employment Status Employed Unemployed Total

Number

Percentage

11 24 35

14.3 85.7 100%

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Table 4: Type of Employment of the Respondents Sl. No 1. 2. 3. 4.

Type of Employment

Number

Percentage

3 3 3 2 11

27.3 27.3 27.3 18.1 100%

Professional/Teacher Accountant Sales Girls Daily Wagers Total

Table 5: Income Level of the Respondents Sl. No 1. 2. 3.

Income Level Below 5,000 5,000–10,000 10,000+ Total

Number

Percentage

6 3 2 11

54.6 27.3 18.1 100%

Number

Percentage

23 9 3 35

65.7 25.7 8.6 100%

Number

Percentage

1 20 10 4 35

2.9 57.1 28.6 11.4 100%

Table 6: Religion of the Respondents Sl. No 1. 2. 3.

Religion Hindu Christian Muslim Total

Table 7: Age of the Husband Sl. No 1. 2. 3. 4.

Age Group Below 30 30–40 40–50 50+ Total

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Table 8: Education of the Husband Sl. No 1. 2. 3. 4.

Education

Number

Percentage

5 10 15 5 35

14.3 28.6 42.8 14.3 100%

Number

Percentage

7 25 3 35

20 71.4 8.6 100%

Primary SSLC P DC UG Total

Table 9: Occupation of the Husband Sl. No 1. 2. 3.

Type of Occupation Permanent Temporary No regular occupation Total

Table 10: Type of Occupation of the Husband Sl. No 1. 2. 3. 4. 5.

Occupation

Number

Percentage

3 4 20 4 4 35

8.6 11.4 57.2 11.4 11.4 100%

Professionals/Teachers Electrician, Clerks Daily Labourers Employed in Gulf Countries Other manual labourers Total

Table 11: Income Level of the Husband Sl. No 1. 2. 3.

Income Level Below 5000 5000-10000 10000+ Total

Number

Percentage

4 20 11 35

11.4 57.2 31.4 100%

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Table 12: Type of Marriage Sl. No 1. 2.

Type of Marriage Arranged Marriage Love Marriage Total

Number

Percentage

33 2 35

94.3% 5.7% 100%

Number

Percentage

9 10 4 12 35

25.7% 28.5% 11.4% 34.4% 100%

Number

Percentage

5 30 35

14.3% 85.7% 100%

Number

Percentage

3 10 19 3 35

8.7 28.3 54.3 8.7 100%

Table 13: Age Difference Sl. No 1. 2. 3. 4.

Age Difference 5 years 6 years 7 years 8 years Total

Table 14: Type of Dowry Sl. No 1. 2.

Type of Dowry Only Gold Cash and Gold Total

Table 15: Number of Children Sl. No 1. 2. 3. 4.

No. of Children Nil Only 1 child Only 2 child More than 2 Total

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Table 16: Distribution of Respondents by Major Reasons for Violence Sl. No 1. 2. 3.

Reasons

No

%

Illicit Relationship Alcoholism Dowry harassment Total

5 15 15 35

14.2 42.9 42.9 100.0

Table 17: Distribution of Respondents by their Present Living Arrangement Sl. No 1. 2. 3. 4. 5. 6.

Present living arrangement

No

%

Living separately Living in husband’s house Living with the support of parents Living in parents’ house Living in relatives’ house Shelter home Total

2 5 15

5.7 14.3 42.9

10 2 1 35

28.6 5.7 2.8 100.0

Table 18: Duration of Marital Life Sl. No 1. 2. 3. 4.

Duration Up to 5 years 6–8 9–10 10+ Total

No

%

5 11 4 15 35

14.3 31.4 11.4 42.9 100%

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Table 19: Years of Suffering from Violence Sl. No 1. 2. 3.

YEARS Up to 5 years 5 to 10 years 10 and above Total

No

%

16 4 15 35

45.7 11.4 42.9 100%

Table 20: Type of Violence Sl. No 1. 2. 3. 4.

Type

No

%

Emotional /mental violence Physical violence Sexual violence Economic violence

35 32 22 15

100 91.4 62.9 42.9

Table 21: Distribution of Respondents by Perpetrator Sl. No 1. 2. 3. 4.

Perpetrator

No

%

Husband only Husband and in-laws only In-laws only Children (son-inlaw/daughter-in-law) Total

3 29 2 1

8.6 82.9 5.7 2.8

35

100

No 2 8 7 15 3 35

% 5.6 22.9 20 42.9 8.6 100

Table 22: Year of Reporting the Violence Sl. No 1. 2. 3. 4. 5.

YEAR 2007 2008 2009 2010 2011 Total

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Table 23: Causes of Violence (Verbal Emotional Violence) Sl. No 1. 2. 3. 4. 5. 6. 7. 8.

Causes Insulting for not bringing dowry Accusation on character, conduct etc. Scolding unnecessarily Labelling Restrict mobility Rudeness to friends and relatives Difference of opinion and disagreement Threatening with an object or a weapon

No

%

30 20 32 15 22 20 30 25

85.7 57.1 91.4 42.9 62.9 57.1 85.7 71.4

Table 24: Causes of Sexual Violence Sl. No 1. 2. 3.

Sexual violence

No

%

12 18 20

34.3 51.4 57.1

Economic Violence

No

%

Refusal to fulfil basic needs Not allowing to stay at home Not allowing to go for job Compelling to hand over salary Compelling to hand over savings Compelling to take loan Compelling to get money and property from parents Taking away jewellery and ornaments

30 28 11 11 11 9 15

85.7 80 31.4 31.4 31.4 25.7 42.9

25

71.4

Forceful sex Hurting sexually Forcing to look at pornography or any obscene pictures or materials

Table 25: Causes of Economic Violence Sl. No 1. 2. 3. 4. 5. 6. 7. 8.

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Table 26: Types of Physical Violence Sl. No 1. 2. 3. 4.

Striking with feet/object or weapon Slapping Throwing objects Making visible injury

No

%

28 32 28 18

80 91.4 80 51.4

No

%

30 5 35

85.6 14.4 100

Table 27: Seeking Police Help Sl. No 1. 2.

Approached police for assistance Other sources of support Total

Table 28: Type of Distribution of Respondents by Type of Support Received Sl. No 1. 2. 3. 4. 5. 6.

Support Counselling Police help Financial Support for filing a case Medical help Legal help Shelter home

No

%

35 30 24 28 35 1

100 85.7 68.6 80 100 2.9

Table 29: Health Condition of the Respondents Sl. No 1. 2. 3. 4.

Type of Health Problems Lost ear balance Back Pain Severe body pain Other minor complaints Total

No

%

1 10 19 5 35

2.9 28.5 54.2 14.4 100

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Table 30. Awareness of Domestic Violence Act Sl. No 1. 2. 3.

Level of awareness Fully aware Partially aware Not at all Total

No

%

11 12 12 35

31.4 34.3 34.3 100

Table 31: Sources of Knowledge of Domestic Violence Act Sl. No 1. 2. 3. 4.

Sources Friends and neighbours Family counselling centres Media Other sources Total

No

%

8 12 3 2 23

34.9 52.3 13.1 8.7 100

Table 32: Satisfaction with Domestic Violence Act Sl. No 1. 2. 3.

Level of Satisfaction Highly satisfied Satisfied Not satisfied Total

No

%

25 7 3 35

71.4 20 8.6 100

Table 33: Time to Get Justice Sl. No 1. 2. 3.

Time Within one year One to two Two + Total

No

%

0 31 4 35

0 88.7 11.3 100

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Table 34: Persons Involved in getting Justice Sl. No 1. 2. 3. 4. 5.

Persons involved

No

%

Parents and relatives Parents, Friends and FCC Parents, Friends and women commission Parents, Friends and other welfare organizations Relatives, friends and other welfare organizations Total

5 12 7 6 5

14.3 34.3 20.0 17.1 14.3

35

100

Table 35: Distribution of Respondents by Orders of Relief Obtained Sl. No 1. 2. 3. 4. 5.

Orders Section 18 Protection orders Section 19 Residence orders Section 20 Monitory reliefs Section 21 Custody orders Section 22 Compensation orders

No

%

35 33 25 6 28

100% 94.3% 71.4% 17.1% 80%

Table 36: Distribution of Respondents by Major Issues Related to Violence Sl. No 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

ISSUES Dowry issue Related to job and salary Suspected character or contact Childlessness Insult by in-laws Forceful sexual relationship Forceful termination of pregnancy Driven to commit suicide Causing hurt and grievous hurt Unlawful confinement Martial rape Misappropriation of wife’s property Matrimonial cruelty

No

%

30 11 11 33 3 18 18 6 12 34

85.7 31.4 31.4 94.3 8.6 51.4 51.4 17.1 34.3 97.1

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Table 37: Distribution of Respondents by their Preference for Living Arrangement Sl. No 1. 2. 3.

Preferences Prefer to stay in husband’s home with order 18, 19. Prefer to stay with parents Prefer to stay independently Total

No

%

5

14.3

20 10 35

57.1 28.6 100

Table 38: Respondents’ Opinion/View of Persons Working in the Justice System. Sl. No

Approach

1. 2. 3.

Police Lawyer Judges

Highly Satisfied No. % 25 71.4 30 85.7

Satisfied No. 30 10 5

% 85.7 28.6 14.3

Not At All Satisfied No. % -

Interpretations In this study, about two-thirds of the respondents belong to the age group of 30–40. The mean age of the respondents is 37.8. More than half (54.3%) have completed graduation. A little more than one-tenth are employed; this includes teachers, accountant, salesgirls and daily wagers. More than half of them earn Rs. 5,000. About two-thirds of the respondents are Hindus, followed by Christians and Muslims. Nearly three-fifths (57.1%) of the husbands belong to the age group 30–40, followed by 28.6% who are in the 40–50 age group; a very small proportion of husbands are above the age of fifty. The mean age of the husbands is 40.9. With regard to husbands’ education, 14.3% studied up to primary level, 28.6 % up to SSLC, 42.8% up to PDC, while others (14.3%) have completed their graduation. Only one-fifth have permanent jobs and about 70% have temporary jobs, while the others (8.6%) do not have regular employment. A very small proportion of the employed husbands are teachers and professionals and a small proportion of them (11.4%) are working abroad. About one-tenth (11.4%) earn below Rs. 5,000, less than 60% (57.2%)

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earn Rs. 5,000–Rs. 10,000 and about 30% (31.4%) earn Rs. 10,000 and above. Most (94.3%) marriages are arranged, whereas a small proportion (5.71%) constitutes love marriages. The data on age difference between husbands and wives shows that one-fourth (25.7%) of the couples’ age difference is five years, a little more than one-fourth of the couples (28.5%) have an age difference of six years, about one-tenth (11.4%) seven years and about one-third (34.4%) eight years. All of them had given dowry in the form of cash or gold. Except three, all others have children. A little more than one-fourth (28.3%) of the families have only one child, followed by two children (54.3%), while others (8.7%) have more than two children. With regard to the major reasons for domestic violence, out of the total respondents, almost an equal proportion of the respondents reported their husband’s alcoholism (42.9%) and dowry harassment (42.9%), while a little more than one-tenth (14.2%) reported their husband having extramarital relations. As to the living arrangement of the respondents, it was clear that most of the respondents get parental support for living arrangements. Except about one-fifth (20.6%) living separately, and those living in their husband’s house (14.7%), all others have made arrangements with the strong support of their parents. Among them, more than two-fifth (42.9%) live with the support of parents and a little more than one-fourth (28.6%) are living with parents, while a small proportion (5.7%) are living with their close relatives. Only a few (2.8%) took advantage of the shelter home. As to the duration of married life, more than one-tenth (14.3%) have been married for five years, about 30% have (31.4%) for six to eight years, a little over one-tenth (11.4%) for 9 to 10 years and above 40% (42.9%) for more than 10 years. Years of suffering violence shows that more than 40% (45.7%) suffered it up to five years, the rest (54.3%) for more than five years. Most of the respondents identified the place of violence as the husband’s house. With regard to the type of violence faced by women, all of them faced emotional violence, followed by physical violence (91.4%), and sexual violence (62.9%). More than 40% (42.9%) faced economic violence. A great majority of the perpetrators are husbands and in-laws. A small proportion (5.6%) filed their case in the year 2007, 22.9% in 2008, 20% in 2009, 42.9% in 2010, and 8.6% in 2011. Major kinds of emotional violence were dowry (85.7%), unnecessary scolding (91.4%), derogatory labelling and restricted mobility (42.9%), husbands’ rudeness to friends and relatives (62.9%) and difference of opinion (8.5%). With regard to sexual violence, about one-third (34.3%) experienced forceful sex, and about half (51.4%) were forced to look at pornography. Major kinds of

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economic violence included unfulfilment of basic needs for a great majority (85.75%), about four-fifths (80%) not being allowed to stay at home, about 30% (31.4%) not being allowed to go to work, compulsion to hand over their salary (31.4%), compulsion to hand over their savings (31.4%), compulsion to take loans (31.4%), about one-fourth (25.7%) being compelled to get money and property from parents; more than twofifths (42.9%) had their jewellery and ornaments taken away. With regard to physical violence, eight out of ten (80%) said their husbands struck them with feet, an object or weapon, or threw objects at them, and most of the respondents (91.4%) said they were slapped. Among them half of them (51.4%) said that they had visible injury due to physical violence. A great majority (85.6%) approached the police for help. With regard to the support received by the respondents, all of them received counselling and legal help, a great majority (85.6%) got police help, a little more than twothirds (68.6%) got financial help, and eight out of ten (80%) got medical help. With regard to health conditions, a great majority reported minor or major health problems, such as lost ear balance (2.9%), back pain (28.5%), severe body pain (54.2%) and various other minor injuries were reported by 14.4% of the respondents. With regard to respondents’ awareness of the Act, it was found that about 30% (31.4%) are well aware, about one-third (34.3%) partially aware, others (34.3%) not at all aware. More than onethird of the respondents (34.9%) came to know about the Act and its details through their friends and neighbours, a few (2.3%) from family counselling centres, a little more than one-tenth (13.1%) from media and others (8.7%) from various welfare organizations. About 70% (71.4%) of the respondents are highly satisfied with the Act; one-fifths are just satisfied, while others (8.6%) are not satisfied. A great majority (88.7%) got justice within two years, while others (11.3%) said they got relief only after two years. Distribution of respondents by the relief they obtained shows that all the respondents received protection orders under section 18, most of the respondents (94.3%) got resident orders under section 19, a little more than 70% (71.4%) received monetary reliefs under section 20, nearly one-fifth of respondents received custody orders under section 21 and about 80% (80%) of respondents got compensation orders under section 22. Women who approached courts for justice through family counselling centres have undergone counselling before filing a case. Respondents’

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opinions/views of the persons who are working in the judicial system reveal that out of the total respondents (35), a great majority (85.7%) approached the police. Respondents who approached the police expressed satisfaction with the service. With regard to lawyers, about 70% (71.4%) of respondents expressed high level of satisfaction, while others (28.6%) expressed just satisfaction. A great majority (85.7%) expressed a high level of satisfaction with judges, whereas others (14.3%) expressed satisfaction with the judge’s approach towards them. Out of the total respondents, only a little more than one-tenth (14.3%) said that they would like to stay in their husband’s house with orders under section 18 and section 19, nearly three-fifth (57.1%) said that they would like to stay with their parents, while others (28.6%) preferred to make their own arrangements. Except a few, all others do not feel guilt, shame or fear after reporting and filing a case. All of them know that domestic violence is a serious violation of human rights. Most of these women do not want to tolerate any more harassment and violence. They are ready to break their silence and fight against the violence till they get justice.

Major Findings and Conclusion From this study, we understand the following facts: 1. Though domestic violence is prevalent among women regardless of age, education level, socio-economic class and family living arrangements, a majority of the cases are reported by women belonging to the 30–40 age group. 2. A great majority faced violence in their matrimonial homes. Most of them have faced violence from husbands and in-laws. 3. Alcoholism and dowry harassment are the two major factors behind domestic violence. This finding is similar to the findings of the studies conducted in Kerala by Vijayan (2003) and Mukhopadhyay (2007). 4. A great majority of victims were not aware of their rights of protection of life, liberty and so on when they entered into the marital life. 5. Most of the victims in this study only came to know that domestic violence in any form is a human rights violation and that they should fight for justice after filing the case.

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6. Victims who understand this right are very cooperative with the justice system, particularly with lawyers. This awareness really helps them to overcome threats, including those of physical harm. Victims are ready to face any situations/obstacles. 7. Victims are ready to approach any one to get support to fight against the violence and to get justice. 8. Victims who face emotional/verbal violence are suicidal. 9. All the victims have received counselling. 10. Violence in all its forms causes immense damage to the physical and emotional well-being of the victims. It is a serious violation of basic human rights. 11. Violence distorts the emotional development of the victim’s children (Radhika, 2005). 12. Victims often feel helplessness, depression, poor self-image and suffer from self-devaluation. This finding is inconsistent with the study report of Ganesmurthy (2008). Domestic violence affects women’s health, self-esteem and ability to participate in development process. 13. Most of the victims initially tolerated harassment and kept silence towards all forms of violence by their birth family. 14. A great majority of the victims and their children face economic crisis due to violence. 15. The majority of the victims have high levels of satisfaction with the law.

Suggestions 1. Police should treat violence as a crime rather than mere domestic dispute. 2. Counselling and legal aid should be made easily accessible to the victim. 3. Violence within the so called private domain of household should be recognized for its societal and political nature, and not discussed as private. 4. Speedy rehabilitation for victims because in most of the cases the final judgments are pending. 5. More gender sensitization programmes should be organized. 6. Legal literacy for women. 7. Involvement of NGOs. 8. More in-depth studies/researches are required to know the gravity of the problem.

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9. Proper counselling to be given to the couple. 10. Proper care and counselling to be given to victims’ children.

References and Further Reading Centre for Women’s Studies & Development (2005). A Situational Analysis of Domestic Violence against Women in Kerala. Kerala: Rajagiri College of Social Sciences. Available at http://wcd.nic.in/research/Domestic%20Voilence-Kerala.pdf accessed on 1 July 2013. Coomaraswamy, Radhika (2005). “Human Security and Gender Violence”, Economic and Political Weekly, Vol. XL, No. 44/45, October 29November 4: 4729-4736. Davis, Richard L. (2008). Domestic Violence Intervention: Prevention, Policies and Solutions. New Delhi: CRC Press. Ganesamurthy, V. (2008). Empowerment of Women in India: Social, Economic and Political. New Delhi: New Century Publications. International Centre for Research on Women, 2012. www.icrw.org. Kodoth, Praveena and Eapen, Mridul (2005). “Looking Beyond Gender Parity - Gender Inequities of Some Dimension of Well-Being in Kerala”, Economic and Political Weekly, Vol.XL, No. 30, July 23-29: 3278-3286. Manjula, B.C. (2008). Problems Faced by Deserted Women’s Link. New Delhi: Social Action Trust. Mishra, Ranganath (1996). “The Challenges to Human Rights in the Modern Society”, The Hindu 8 May. Misra, Preeti (2006). Domestic Violence against Women: Legal Control and Judicial Response. Delhi: Deep and Deep Publications. Panda, P. (2003). Rights based Strategies in Prevention of Domestic Violence. Kerala: Centre for Development Studies. —. (2004). Domestic Violence against Women in Kerala: Kerala Research Programme on Local Development Centre. Kerala: Centre for Development Studies. Panda, P. and Agarwal, B. (2005). “Marital Violence Human Development and Women’s Property Status in India”, World Development, 23(5). Rai, Suman (2008). The Law Relating to Protection of Women from Domestic Violence. New Delhi: Orient Publishing Company. Mukhopadhyay, Swapna (2007). Enigma of Kerala Women: A Failed Promise of Literacy. New Delhi: Institute of Social Science Trust. National Crime Record Bureau, Ministry of Home Affairs, 2012.

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Sarada, S. (2008). “Violence against Women, Women’s Link, Vol. XIV, No. 3, July-September: 29-35. Stephenson, Virginia (2003). “Stepping Down from Patriarchy”, Of Our Backs, Vol.33, Issue 5/6: 16. Vijayan, Abraham (2003). “Abused Women in a Domestic Circle: A Study Among the Sea Workers of Kerala”, Kerala Sociologists, Vol. XXXI, No. 2: 40–45. Vijayan, Eliamma (2001). Gender based Violence in Kerala: A Report. Thiruvanathapuram: Sakhi Resource Centre for Women.

PART IV: HUMAN RIGHTS FROM A TRANSNATIONAL PERSPECTIVE Part IV constitutes the last section of the book which presents a transnational perspective of human rights. The part tries to locate the phenomenon of human rights in three important continents – Asia, Africa and Europe. An attempt is also made to underline the growing problem of human rights in the politics of West Asian countries, especially Israel. The first paper of this section brilliantly sums up the rights of people with disabilities (PwD) in China. Written by a young sociologist from University of Hong Kong, Pui-yan Flora Lau, the paper advocated the World Health Organisation’s community-based rehabilitation approach (CBR) to address the issue of human rights in natural disasters. Through her paper, Lau has illustrated how a CBR approach would serve as a strategy to promote the rights of PwD. She has also tried to evaluate the success and challenges of CBR in the earthquake zones in Sichuan, a province in western China, which experienced a disastrous earthquake in May 2008. The author in her findings has suggested both the community approach and institutional support to ensure better results for the PwD victims in the region. Another paper of the section tries to locate the issue of human rights in the context of state-citizenship debates in Israel. Written on the basis of his post doctoral study at Tel Aviv University, Israel, Sunil K. Choudhary has underlined the paradox of Jewish State in a Zionist Society on the one hand and the ambivalence of the State’s role as protector of human rights of its Arab minorities on the other. The author argues that civil society movements in Israel has brought the issue of human rights to the mainstream discourse from the 1980s, particularly with the emergence of massive demonstrations and protests in form of Intifada. The majorityminority debates in Israel should be re-looked from a broader perspective of human rights for which both the communities need to come forward in a friendly spirit of accommodation as against a hostile attitude of confrontation.

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Besides Asia and West Asia, the fourth and the last section of the book also touches upon human rights movement in the African continent. Written by a South African fellow from Madhya Pradesh, India, Ramesh Kumar the paper critically analyses the policies, programmes, problems and challenges of the post-apartheid regime in respect of democracy and human rights. The author has highlighted various pressing issues in contemporary South Africa which actually violate human rights, viz., crime against women and children, the HIV/AIDS, poverty and unemployment, corruption, and xenophobia. Good governance and devotion to democratic values are the challenges for the post-apartheid regimes of South Africa, argued the author. The last paper of this part seeks to examine the role of European Union as the protector of the rights of foreigners in Europe. Written by a young social scientist from France, Alix Loubeyre, the paper states that the existence of migration laws of Member States in Europe has actually complicated the study of migrants’ protection in the continent thereby resulting into the violation of their fundamental rights. The author firmly believes that extension of the competences of European Court of Justice (ECJ) in the areas of freedom, security and justice have no doubt helped in protecting the fundamental rights of the foreigners, much more need to be done, however. Major improvements in protecting the rights of the foreigners depend on the harmonisation of both internal reform process and external institutional commitments, felt the author. The four lead papers of the last section underline the gravity of human rights issues from international perspective. While the part does emphasize the splendid work undertaken by community in containing human right infringements, it also questions the role of the state in addressing human rights violations across the world. The authors of the section thus suggest amicable balancing in the role of the state and society in protecting human rights in the world.

CHAPTER THIRTEEN ADVOCATING THE RIGHTS OF PEOPLE WITH DISABILITIES IN CHINA: A COMMUNITY-BASED REHABILITATION APPROACH PUI-YAN FLORA LAUh

Abstract The rights of people with disabilities (PwD) are grounded in a human rights framework based on the United Nations Charter and the Universal Declaration of Human Rights. People with disabilities are entitled to exercise their civil, political, social, economic and cultural rights on equal basis with others. This presentation will illustrate how community-based rehabilitation (CBR) approach serves as a strategy to promote the rights of PwD. This paper aims to evaluate the successes and challenges of CBR in the earthquake zones in Sichuan, a province in western China which experienced a disastrous earthquake in May 2008. The WHO-CBR matrix, which suggests that health, education, livelihood, social and empowerment are the guiding outcomes of community rehabilitation, is adopted as the assessment tool. The findings suggest that financial difficulties and the ignorance of physical rehabilitation of service users are the major challenges. With the support of various non-political agencies, CBR is concluded as an effective strategy to promote the rights of PwD.

h This is one of the post-doctoral research projects of the author. The author would like to express a sincere thank to WHO Collaborating Centre for Rehabilitation of the Hong Kong Society for Rehabilitation for sponsoring this project, and Huaxi Hospital (Sichuan), Professor Lai Wan Cecilia Chan, Mr. Hang Sau Ng and his team for supporting this project.

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Introduction The rights of people with disabilities (hereafter referred to as PwD) are founded on a human rights framework based on the United Nations Charter and the Universal Declaration of Human Rights. PwD are entitled to exercise their civil, political, social, economic and cultural rights on equal basis with others. The United Nations Convention on the Rights of Persons with Disabilities (2008) is an international agreement drawn up by states with the involvement of PwD, which affirms that they have the same rights and dignity as everyone else. Some of the examples of human rights include the right to life (Article 10), access to justice (Article 13), liberty and security of the person (Article 14), protecting the integrity of the person (Article 17), living independently and being included in the community (Article 19), personal mobility (Article 20), education (Article 24), health (Article 25), habilitation and rehabilitation (Article 26), work and employment (Article 27), participation in political and public life (Article 29), and participation in cultural life, recreation, leisure and sport (Article 30). Parties to the Convention are required to promote, protect, and ensure the full enjoyment of human rights by PwD, and ensure that they enjoy full equality under the law. In line with the principles of the United Nations Convention on the Rights of PwD, this paper aims to discuss the extent to which the rights of PwD in mainland China are satisfied. The author refers to Article 26 of the Convention, which affirms that: 1. “State Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, State Parties shall organise, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes: a. Begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths; b.Support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with

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disabilities as close as possible to their own communities, including in rural areas. 2. State Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services. 3. State Parties shall promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation” (Article 26, Convention on the Rights of Persons with Disabilities).

Referring to the above principles, this paper focuses on the rights of people who were disabled by the earthquake in Sichuan, Western China, in 2008. An evaluative research on the effectiveness of the Resource Centre co-established by a Non-Governmental Organization in Hong Kong (hereafter refer to HKNGO) and a provincial hospital in Sichuan has just been completed. The Resource Centre initiated a range of service programmes of rehabilitation for people disabled by the earthquake with reference to the community-based rehabilitation (CBR) approach. The key directions of programme evaluation were: to what extent did people disabled by the earthquake have equal access of rights in the community following this CBR strategy? Could they be socially included in the community? What are the challenges of exercising the basic human rights for PwD in Sichuan?

Community-based Rehabilitation for People with Disabilities – WHO-CBR Matrix The CBR intervention model based on the World Health Organization’s Community-Based Rehabilitation (WHO-CBR) matrix is adopted as the guiding framework of the research as elaborated below. The WHO-CBR matrix suggests that health, education, livelihood, social aspects and empowerment are core components guiding the areas of work and activities, and assisting service planners in screening for gaps in services. According to WHO, rehabilitation does not merely refer to physical recovery, but the creation of an environment of understanding and inclusion for PwD. Table 1 provides a summary of the five components of the CBR matrix.

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Table 13.1: Components of the CBR matrix (as defined by WHO) Major components Health

Promotion

Prevention

Education

Early childhood

Primary

Livelihood

Skills development Relationships, marriage and family Communication

Selfemployment Personal assistance

Medical care Secondary and higher Financial services Culture and arts

Social mobilization

Political participation

Social

Empowerment

Relevant sub-components Rehabilitation Non-formal Wage employment Recreation and leisure and sports Self-help groups

Assistive devices Life-long learning Social protection Access to justice Disabled people’s organisations

(Source: http://www.who.int/disabilities/cbr/matrix/en/)

The ultimate goal of CBR is community integration, which refers to the opportunity to live in the community and be valued for one’s uniqueness and abilities, like everyone else (Salzer, 2006). It is regarded as the right for all people. Community integration can be expressed in terms of y physical integration – participation in activities, and use of goods and services in the community; y social integration – interaction with community members and establishment of social networks; y psychological integration – the sense of belonging, and community membership. The achievement of community integration requires a joint effort of PwD and citizens in the community: if PwD are ready to lead a normal life in the community but citizens in the community reject them, or if citizens in the community accept PwD but the latter refuse to lead a communal life, community integration will certainly fail. The WHO-CBR matrix assumes empowerment and capacity building in the five core components of life, as indicated in the table above. Simple descriptions of empowerment include: having a say and being listened to, self-empowering, having decision-making powers, having control or gaining further control, being free, independent, being capable of fighting

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for one’s rights, and being recognized and respected as equal citizens and human beings with significant contributions to the community (WHO, CBR Guideline). As to capacity building, various approaches have addressed this term in slightly different ways. One of the approaches is that it occurs at individual, organizational and community levels (Chaskin, 2001; Chinman et al., 2005; Alfonso et al., 2008). By informal social interaction or formal institutional mobilization within a community, the disadvantaged groups feel empowered and thus are able to overcome the grief and distress they have experienced. The goal is to focus on developing individual capacity and collective efficacy for recovery. By empowerment and capacity building, the rights of PwD are assumed to be fully exercised.

Aims of the Study and Relevant Questions The research aims to study the extent to which the rights of PwD can be fully achieved in Sichuan, China. The entry point of study starts with the effectiveness of CBR in post-earthquake regions in Sichuan, by analysing the perspectives of the service users, cooperative partners and coorganizers. This would enable the researcher to be better able to answer the following core questions: y Is CBR a relevant model for rehabilitation after great trauma in a region (in this study, the post-earthquake period)? In what ways it is relevant? y What are the lessons learnt during the practice of CBR? What are the major challenges of practising CBR in China? y In what ways does CBR contribute to an enhancement of equal opportunities among disadvantaged groups and help to achieve community integration?

Setting the Scene Sichuan, a province in Western China, experienced a disastrous earthquake on 12 May 2008. According to the Ministry of Civil Affairs of the People’s Republic of China, up to 18 September 2008, 69,227 people were killed, 374,643 were injured and 17,824 were missing. Support from the Hong Kong Special Administrative Region, Sichuan Provincial People’s Government, the HKNGO and a provincial hospital in Sichuan allowed a

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Resource Centre to be set up in February 2009. The Resource Centre aims to provide consultation for clinical rehabilitation and training in selfmanagement and livelihood skills to people disabled by the earthquake. The ultimate goal is the empowerment, capacity building and community integration of PwD. The Resource Centre has established quite a number of partnerships with other local institutions/NGOs. The partnership is basically in a form of coorganizing activities and sharing the venue of activities with local NGOs and governmental organizations. The idea of partnership is based on the premise that by sharing resources with other institutions, once the Resource Centre needs to leave the community (perhaps as a result of the lack of project funding), these local NGOs and governmental organizations will be able to continue with the development of local capacity. This is a way to aggregate material resources on an associational level for establishing and strengthening individual capacity. The partnership also enables the HKNGO to localize its services effectively as a result of the cultural transfer of local partners. The following diagram summarizes the role of the Resource Centre in the practice of CBR in earthquake regions, and highlights the relationship between the Resource Centre and different organisations.

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Figure 13.1: Cooperation of different parties for the practice of CBR

Service users –

People in the

capacity building

community – Being disability conscious

with the

To advocate and promote

assistance of the Resource Centre

disability consciousness Direct services

Social network, e.g. family and peers

An NGO from Taiwan

Sichuan

Resource Centre – to practise CBR programme, funded by HKSAR, coorganized by HKNGO and provincial hospital, Sichuan

regional governments

All other cooperative partners

Cooperation at organizational level

A local quasi-

An

governmental

international

medical care body

NGO

To design and implement health-related and rehabilitation policies

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Table 13.2: Number of Individuals benefiting from Rehabilitation Therapy Services rendered by members of the Resource Centre (October 2009 to January 2010)

(Source: HKNGO)

Table 13.3: Activities and Programs initiated by the Resource Centre (February 2010 to March 2011)1

(Source: HKNGO)

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After months of establishing a collaborative network with local institutions, the Resource Centre started its intervention programmes in May 2008 (with funds raised by the Society). In early 2009, the Centre had further launched its rehabilitation therapy and community building services in five communities that had been heavily struck by the Sichuan earthquake. These initiatives aimed to achieve integration of disadvantageous groups to bring about an inclusive and socially cohesive community ultimately. The services offered by the Resource Centre are summarized in Tables 2 and 3.

Research Design This paper focuses on the qualitative part of the research. Qualitative methods help to find out the meanings, contributions and challenges of the intervention programme from different parties in greater detail. Qualitative methods are the best research methods to achieve answers to the list of questions raised above. These methods provide a rich source of data which emerge from the daily life experiences of the service users. The researcher intended to assess effectiveness, which includes achievements and challenges of service users and cooperative parties of community rehabilitation in post-earthquake Sichuan. Such information is beyond the scope of a survey in which the respondent is asked, for example, to tick yes or no, agree or disagree, or rate a statement on a 1- to 5-point scale. Above all, the researcher needed rich sources of information to assess the effectiveness of the CBR model and expect to derive finer details from the interviewees. The researcher conducted semi-structured interviews with three categories of persons, viz., service users, collaborative partners and co-organizers. (a) Service Users In each community, the researcher conducted several case studies which comprised semi-structured interviews and home visits, for people who were disabled by the earthquake in 2008. These interviewees were service users of the Resource Centre. The research team had spent a total of nine months to observe and keep a track record of the interviewees and the regions. Interviews with service users were scheduled over three different periods – August 2010, January 2011 and May 2011. A total of 15 case studies in four regions were conducted. These regions were Dujiangyang

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(4 cases), Mianyang (4 cases), Chenjiaba (3 cases) and Deyang (4 cases). The case studies aimed to tap the actual needs of the service users, their abilities and capacities, their perception of disability and their willingness to participate in a community. Table 4 illustrates the details of case studies. Table 13.4: A Summary of Data Collection Methods Types of population

Methods of data collection

Service user

Case study – home visit and semistructured interviews Semi-structured interviews Semi-structured interview

Collaborative partner Co-organizer of the Resource Centre

Sampling/ number of interviews 15 case studies in four regions 3

Period of data collection

October 2011

1

October 2011

August 2010 – May 2011

(b) Collaborative Partners The researcher interviewed three collaborative partners in Sichuan in October 2011. The aim was to receive their points of view towards the cooperation of the Resource Centre, the effectiveness of CBR from an organizational level and the challenges of the implementation of CBR in post-earthquake Sichuan. These interviewees represented different backgrounds of partners – a native Sichuan medical care officer, a Hong Kong social worker from an international NGO, and a Taiwanese programme manager from a NGO based in Taiwan. (c) Co-organizer of the Resource Centre The Resource Centre is a product of coordination between an HKNGO and a provincial hospital of Sichuan. By interviewing one of the heads of the local hospital, the researcher was able to grasp the perspective with which the organisers of the Resource Centre assess the effectiveness of the entire programme and cooperation.

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Methods of Data Analysis The researcher was accompanied by at least one native Sichuan speaker for each single interview in case it was hard to capture the exact wording of the interviewee.2 The researcher jotted down detailed notes during every interview. Straight after each interview, the researcher summarized the major points that had been derived. The researcher also recorded (in MP3 format) every interview for a clearer record. Over the data analysis process, the researcher referred to the MP3 record for an accurate analysis and write-up. Since the interviews were conducted in Mandarin and/or Sichuan dialects, the researcher paid extra attention to the translation into English when writing up the report.

Research Findings This part discusses three major perspectives of community rehabilitation in post-earthquake regions. These perspectives come from service users, collaborative partners and co-organiser. I. Assessment of CBR by Service Users In the following part, the researcher will illustrate the effectiveness of the CBR programme initiated by the Resource Centre by assessing whether the needs of the service users were satisfied by the programme. (a) Meeting the Financial Need – The Development of Livelihood Some courses which aimed to empower service users to help them to make a living eventually on their own were launched by the Resource Centre. One of the representative examples is handicraft production. The majority of women in Sichuan are very good at handicraft, ranging from crossstitch, knitting, sewing and even shoe making. Yet, rather than making a living in times of financial difficulty – which is one of the critical sources of distress – they simply do it for nothing. Through participating in these courses, local women were able to sell their products to the market at a sensible labour cost. These courses lasted from Monday to Friday for two months, and were open to women who were disabled by the earthquake. Participants learned some sophisticated skills to produce their own handicrafts during the workshops. These handicrafts

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were sold in the market. Mrs. Zhang is one of the participants of the workshop and she managed to make a good lump sum out of her own products: I love attending these workshops. I managed to make a living out of these products. You know what? I have earned RMB 2,600 since attending these workshops in the past two months. I will be attending the workshop again tomorrow. (Mrs. Zhang, aged 66)

During the home visit in May 2011, the researcher found that she was ready to produce more handicrafts for sale. Rather than leaving her products in the corner of her flat, she managed to transfer her skills and talents to make a living. This not only helped her to overcome the distress brought about by the loss of her home, physical functioning and mobility, but also empowered her by utilizing her skills to become more financially independent, leading to her finding a more meaningful identity. (b) Meeting the Need for Rehabilitation Therapy – Physical Rehabilitation The Resource Centre has initiated 1,353 home visits, 56 courses, 5 talks and workshops, and published 1,000 leaflets for self-management from February 2010 to January 2012. These talks, workshops and courses were rehabilitation-oriented, aiming to strengthen service users’ physical capacity and self-management competence for attaining a better life in the future. The researcher has witnessed some impressive recoveries. For example, Mrs. Hau, aged 47, walked very awkwardly the first time the researcher met her. After active training organized by the Resource Centre on a weekly basis – the Resource Centre organized some training courses, taught by physiotherapists – she now manages to walk normally. Mrs. Hau found the physical rehabilitation training programme “very effective”. These physical rehabilitation programmes must be on-going to satisfy the pressing needs in post-earthquake communities. (c) Meeting the Need for Searching for Personal Identity – The Adjustment to Daily Routine Service users are trained to shop for daily necessities. They are trained to lead a normal life such as shopping in the supermarket. This would certainly help them to integrate into society on a daily life basis.

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Sometimes, help is not as direct as it appears. For example, Mrs. Hau, aged 47, had injured her hips during the earthquake. She was depressed and could not work for more than 18 months. She received home visits from local practitioners and gradually became more psychologically and physically healthy. In April 2011, she got a full time job – as a chef in a kindergarten. She said, “I’ve found my life much more fulfilling”. (d) Meeting the Need for Emotional Comfort – Mutual Support Group The Resource Centre initiated 45 mutual aid groups with a total of 718 participants. In regions that were severely damaged by the earthquake, mutual help was particularly invaluable in that resources of all kinds could be accumulated over the process. The nature of mutual aid groups varies depending on the situation of that particular community and the characteristics of the population. One of the most representative mutual aid groups was the Tai Chi Group in Chenjiaba, which started in late 2010. During each practice session, participants spent one hour on Tai Chi practice and another hour on emotional sharing. The researcher noticed that the shared experiences over the earthquake and the opportunity to share feelings helped service users to overcome grief and distress. One of the participants, Mr. Lo, commented on the Tai Chi Group: Via the Tai Chi classes and the subsequent sharing sessions, I feel far more relieved. In the past (between the earthquake and the time he was approached by the Resource Centre), I suppressed my grief down in the bottom of my heart. But after attending the sharing sessions which followed the Tai Chi classes, I found a platform on which we, people being disabled by the earthquake, can share our experiences and feelings. It’s good that we all share similar feelings and experiences. (Mr. Lo, aged 59)

A similar situation was expressed by Mr. Wang, aged 70. According to him, the sharing session after each Tai Chi class helped him to strengthen his psychological wellbeing very effectively: Some people were disabled (during the earthquake) and some people lost their relatives. We all felt pessimistic. When people of these types hang out together, we found encouragement. (Mr. Wang)

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Mr. Wang’s words imply empowerment in a collective sense: via mutual encouragement and sharing, they feel empowered and emotionally strengthened. These are the sources of energy to get through grief and distress. Initially, local practitioners arranged the Tai Chi meetings, but now two active participants take the lead to coordinate the meetings. According to a local practitioner, the Resource Centre aims to leave these two participants to serve as leaders of the Tai Chi Group in the future. So far, these mutual aid groups are successful in the sense that the leadership has been established, and participants are able to make the best of the group each time. The researcher is not trying to say that mutual aid groups completely replace the functions of family or other social ties. Rather, it is suggested that associational membership initiated by the Resource Centre provides an alternative way to seek emotional support. Some service users have established and maintained very good relationships with their spouse and family in the pre-and post-earthquake period, and familial relationships have helped them to withstand frustrations in times of trauma. For example, Mrs. Zhu was the only family member injured during the earthquake. With the intensive emotional and material support provided by her husband, parents and sisters who live next door, she is better able to focus on her craftwork – this has helped her to become more emotionally relieved. II. Assessment of CBR by Collaborative Partners and Co-Organizer Based on the semi-structured interviews with three collaborative partners, the researcher found that they all assessed the cooperation in a very positive way and ascertained that they would recommend HKNGO to other organizations for cooperation in the future if necessary. Whereas the local quasi-governmental body highly appreciated HKNGO for clarifying the concept of community rehabilitation and the service models that were to be delivered to the disaster regions, the interviewees from an NGO of Taiwan and an international organization appreciated the way HKNGO had integrated resources in the post-earthquake regions, the commitment of staff members at different levels and the benefits derived from knowledge exchange during the cooperation.

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The co-organizer of the Resource Centre, the provincial hospital in Sichuan, was also very pleased with the cooperation from the HKNGO. The localisation of the CBR model in Sichuan post-earthquake regions, the exchange of management style and expertise between the two parties, and the clarification of the concept of community rehabilitation are the great achievements attained during the cooperation. Table 5 summarizes the perspectives of the collaborative partners and co-organizer of the Resource Centre. Table 13.5: A Summary of Experiences of Service Providers Types of Problems of practising CBR population with the Resource Centre Cooperative partners Local quasiy Ignorance of the concept governmental rehabilitation had led to mismedical care implementation of policies, e.g., body which institution should be responsible for rehabilitation? y PwD are ignorant of the idea of rehabilitation

An international NGO

y To build up trust with service users y Immature health policies and the deprivation of material resources for rehabilitation y To incorporate the skills of social work from the West into the Chinese culture y Social workers in China are relatively young and therefore they are not experienced enough to identify the essence of a problem y Running out of manpower, i.e., social workers and rehabilitation experts

Achievements of the programme y Clarification of the idea of “community rehabilitation” to local population y People of different regions are able to receive services though those living in urban areas are better able to receive services than those in rural areas y Being able to identify what types of services to be delivered y Key to success: cooperation of different organizations in society y Marginalization of PwD in the society is rare y Resources from different sectors of the society were successfully integrated via the Resource Centre y Key to success: staff members of the Resource Centre have rich experiences in community rehabilitation. They sharply and wisely identified the services to be delivered y Being willing to facilitate exchange in expertise and culture between Sichuan and Hong Kong

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An NGO from Taiwan

y Not enough support from the Sichuan government y Lack of integration of resources and coordination

Co-organizer One of the heads of the provincial hospital, Sichuan

y To promote the concept community rehabilitation to the population and the region in general y Shortage of resources especially in rural areas

y To learn the working style of Hong Kong y Service users have a sense of being in the community y Key to success: CBR is practised professionally by HKNGO y Support from HKSAR government y The hospital gets to know the international standard via the cooperation with Hong Kong y Being successful to localise community rehabilitation in Sichuan y Exchanging management skills and expertise y Key to success: wisdom and active participation of leadership of the two teams; committed working staff members who have a sense of being professional

Discussion Overall, the Resource Centre and the CBR programme implemented in Sichuan were successful. The researcher observed that the Resource Centre succeeded in launching intervention strategies (e.g., self-help and mutual support, self-management and home visits) and programmes (e.g., barrier-free programmes, rehabilitation therapies and training on living skills) on its own, without going through many bureaucratic barriers. Via case studies, it is recognized that the needs of some service users (i.e., rehabilitation, financial sufficiency, searching for personal identity and

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emotional comfort) were met. This demonstrates a success in launching strategies and programmes at the community level. Based on the semi-structured interviews with collaborative partners, the researcher found that they all assessed the cooperation in a very positive way. Whereas the interviewee from a quasi-governmental medical care body thanked HKNGO for clarifying the concept of community rehabilitation and the service models that were to be delivered to the disaster regions, the other two NGOs appreciated the way the Resource Centre had integrated resources in the post-earthquake regions, the commitment of staff members at different levels and the benefits derived from knowledge exchange during the cooperation. Community integration is the fruit of joint efforts of PwD, citizens in the community and the ongoing support of the institutions. The researcher observed that there were some barrier-free facilities in certain schools in the communities. For example, in a school in Dujiangyan, the construction of some school buildings emphasized barrier-free consciousness. This is not only a pioneering step to promote the awareness of the rights of disability, but also provides the infrastructure for empowering the capacity of PwD. However, according to the researcher more policy advocacies and disability-friendly infrastructure are needed to help service users overcome their grievances.

Beyond the Concurrent CBR Programmes – An Assessment of the Achievement of Human Rights for PwD in Sichuan The success of the CBR programme as indicated in the research implies the attainment of human rights of PwD in the post-earthquake communities, i.e., PwD receiving the CBR services are able to integrate, rather than being marginalised, into the society as they receive opportunities to learn, to make a living, and to lead a socially active life. Conventional recovery models assume rehabilitation prior to livelihood but it can also go the other way round. The ideal way is to transfer the skills and talents of service users to make a living. Mrs. Zhang in Dujiangyan and Mrs. Hau in Mianyang are successful examples. Via making a living by handicrafts and re-entering the mainstream job market, they have demonstrated confidence and a sense of meaningful engagement

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in life. Neither are they marginalized in the educational sector and job market nor have they experienced deprivation from being unable to participate in society. Nevertheless, the researcher has to admit that it would be too optimistic to assume an absolute success of the CBR programme in post-earthquake Sichuan, and thus the full access to the rights of PwD (especially the right to be integrated into the society) as indicated in the United Nations Convention on the Rights of Persons with Disabilities. The argument is two-fold: the limitations of the evaluative research, and the institutional difficulties to implement CBR in post-earthquake communities. In terms of the limitations of the research, the researcher has to address one core insufficiency: the neglect of the views of general citizens in each community. As discussed, community integration is a collaborative effort of PwD, citizens in the community and institutional (especially governmental in the context of China) support. But the research so far has basically captured two distinctive perspectives, i.e., the improvement of life of PwD (to be more specific, those who had received the services) and the insufficient support from governmental institutions. The question arises: how about the views of citizens in the communities? Regrettably, their views are yet to be captured and the researcher believes that the next agenda is to listen to the views of citizens in general. The researcher would argue that the success of the Resource Centre as indicated in the case studies might be a stand-alone success as there were a lot of difficulties in implementing CBR on an institutional level. The researcher will discuss this from four dimensions, i.e., the cognitive understanding of community rehabilitation, the lack of involvement of provincial government, the unequal distribution of resources between rural and urban areas, and the sustainability of the implementation of community rehabilitation. First, the cognitive understanding of the concept of community rehabilitation is still immature in Sichuan. The concept of community rehabilitation is very fresh to many service users and even the postearthquake government healthcare units. Although the Resource Centre has made tremendous efforts to localise and implement community rehabilitation, there needs to be more promotion of this concept initiated by the healthcare units. The establishment of rehabilitation units in the

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hospital is also essential. Without the precise recognition of the significance of community rehabilitation, the effect of community integration among PwD is limited. Second, perhaps as a result of the ignorance of the concept of community rehabilitation, there is a lack of appropriate and efficient health policies to cater for people who were disabled by the earthquake. The collaborative partners of the Resource Centre told the researcher that there is a lack of integration of resources in the disaster regions, and the regional government seems to rely very much on the NGOs. But it would be much more effective if the work of the NGOs could be accompanied by government policies – the state apparatus is always more effective than an NGO to solve a big problem like the reconstruction of a post-earthquake region. Leadership and management style determine the results of CBR. Third, the accessibility of resources and information between urban and rural areas in Sichuan differs – people in urban areas have easier access to resources than those in rural areas, which are remote and loosely scattered. It is difficult to practise CBR in rural areas and thus frontline practitioners need to make extra efforts (e.g., time for transportation and strategy adjustments for implementing CBR) to take care of each identified service user. The Tai Chi Group in Chenjiaba is a distinctive model of practising CBR in the rural area. But the unequal distribution of resources between rural and urban areas implies the potentially unequal access to the basic rights of PwD in these two areas. Fourth, the issue of sustainability of CBR practised in the post-disaster regions is always questionable. For any reason, once an NGO retreats from the service area the medication and services received by service users will be halted. For example, Mrs. Xiang in Mianyang had been receiving regular medical services (once or twice a month) from a voluntary association but unfortunately it shut down in early 2011. Now, she fails to turn to anybody for help (partly because she cannot afford to go to the clinic), but keeps consuming painkillers. The insufficiency of medical consultation would certainly worsen her physical situation. So this leads to an inevitable question: once the Resource Centre withdraws as a result of lack of funding, for example, how can community development be sustained, and who will carry out the development? The researcher believes that decentralization and collaboration with other local

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institutions/NGOs can be a way out. Indeed, such strategy has been practised in some communities already. For example, the Resource Centre in Dujiangyan has established diversified collaborative partnerships with some local institutions. This helps to leave the responsibilities to locality in the future in view of the withdrawal of the Resource Centre. Another issue that relates to sustainability is manpower and responsibility. There are two issues here. First, will there be sufficient staff members who are persistent enough to get involved in CBR thereafter? Second, in relation to the previous paragraph, which unit should be responsible for CBR thereafter? Would that be the responsibility of regional government, the quasi-governmental healthcare body or NGOs? So far, as suggested by collaborative partners, the government relies on NGOs but would that be a sustainable solution in Sichuan post-earthquake areas or in China in general? Perhaps a collaboration of these different types of institutions is essential – whereas local government would be responsible for policy making which provides a general direction to frontline practitioners such as medical staff members and therapists, NGOs would use their expertise in community rehabilitation so that bureaucratic barriers could be bypassed and rehabilitation could genuinely be practised at the community level with the assistance of NGOs.

Conclusion In summary, although the CBR programme delivered by the Resource Centre succeeded to bring about positive impacts to people disabled by the earthquake in Sichuan, the researcher can only draw the conclusion to the extent that the Resource Centre enabled the achievement of human rights of PwD in some areas of life, such as the right to life (Article 10), health (Article 25) and work and employment (Article 27). The researcher is yet to draw the conclusion on whether the service users could live independently and be included in the community (Article 19), as the research has yet to investigate the perspectives of the citizens in the communities. This paper also suggests that the achievement of human rights for PwD needs institutional support, especially by those at the governmental level (be they central, provincial or regional). So far, the researcher has recognized that community rehabilitation, which eventually leads to the

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achievement of rights of PwD, is primarily practised by NGOs, which may encounter the problem of sustainability. Although a quasi-governmental body has participated, much more effort is needed in this direction. In China, where policies are designed and delivered in a top-down approach, without the solid support from the government, it would be ineffective to practise community rehabilitation and eventually to realize the rights of PwD. Community rehabilitation services delivered by NGOs might then be reduced to a charitable level and the services could only be received by a small group of relatively fortunate clients. The rights of PwD in Sichuan need further achievement.

Notes 1

The intervention is ongoing until January 2012 and the researcher managed to receive data provided by the Resource Centre dated in March 2011. 2 Sometimes the researcher found it difficult listening to colloquial Sichuan dialects. This was particularly the case when the researcher interviewed elderly people in rural areas.

Further Reading Alfonso, M., J. Nickelson, D. Hogeboom, J. French, C. Bryant, R. McDermott, and J. Baldwin (2008). “Assessing Local Capacity for Health Intervention”, Evaluation and Program Planning, 31: 145–59. Chaskin, R. (2001). “Building Community Capacity: A Definitional Framework and Case Studies from a Comprehensive Community Initiative”, Urban Affairs Review, 36(3): 291–323. Chinman, M., G. Hannah, A. Wandersman, P. Ebener, S. Hunter and P. Imm (2005). “Developing a Community Science Research Agenda for Building Community Capacity for Effective Preventive Interventions”, American Journal of Community Psychology, 35(3/4): 143–57. Convention on the Rights of Persons with Disabilities, 2008. Office of the United Nations High Commissioner for Human Rights. HKNGO regular records (2009–11). Salzer, M.S. (2006). “Introduction” in M.S. Salzer (ed.) Psychiatric Rehabilitation Skills in Practice: A CPRP Preparation and Skills Workbook. Columbia, MD.: United States Psychiatric Rehabilitation Association.

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World Health Organization, Community-based Rehabilitation Guidelines (2012) (http://www.who.int/disabilities/cbr/en/)

CHAPTER FOURTEEN STATE-CITIZENSHIP DEBATES AND HUMAN RIGHTS ISSUES: A STUDY OF ISRAEL SUNIL K. CHOUDHARY

Abstract Israel is considered an example of “boiled democracy” in view of the coexistence of Jewish-Zionist ideology and parliamentary democracy in the post-war democracies of the world. In terms of its spatial location in West Asian politics, Israel represents a unique mixture of religiosity, ethnicity and democracy. Though Israel, like Britain, doesn’t have a written constitution, the basic laws that govern the nation do not formally differentiate between the Jewish and Arab citizens of the state. However, the state-citizenship debates took new form soon after Israel’s occupation of the neighbouring Arab territories in 1967, particularly the West Bank and Gaza. Israel is projected as the grave violator of human rights and its relations vis-à-vis its Arab citizens and Palestinians have remained controversial since its emergence in 1948. This paper is an attempt to present the state-citizenship debates from a human rights perspective and tries to analyse the changing relations of the Jewish majority and the Arab minority in contemporary Israel. Injustice anywhere is a threat to justice everywhere. —Martin Luther King, 1963 Quoted in Halper (2008)

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Introduction The twenty-first century can be described as the century of human rights. The concept of human rights has assumed immense significance in the contemporary global world. The issue has taken centre stage in statecitizenship debates in view of the changing relations between the former as the violator of interests and the latter as the repository of trust. While parliamentary democracies all over the world have evolved their own mechanism to shield human rights issues of its citizens, the violation of human rights has gone unabated throughout the world. The problem is more visible in the West Asian countries where the system of democratic governance has yet to materialize in any realistic manner. Though forming a part of West Asian countries, Israel is different from the Arab and Islamic nations of the region. In view of its demographic and geographical location, Israel is characterized as an extension of Europe. Surrounded on its three major sides by the Islamic nations Syria, Jordan, Lebanon and Egypt, Israel has for long suffered from the problem of political legitimacy and legal recognition by the hostile Arab world. Since its political independence from British colonial rule in 1948 Israel has continued to strive to achieve its distinct place in the West Asian countries on one hand and world politics on other.

Jewish State in a Zionist Society Israel is formed by Diaspora Jews across Europe and the world. Its emergence as an independent nation is marked by bitterness and acrimony due to its birth in the aftermath of its conflict with the Palestinian Arabs. The Arabs in the Palestine region had never liked the existence of a Jewish state in their surroundings. In fact, the very emergence of Israel according to the Arab world came about on Arab soil due to Jewish connivance with the western world. The British partition of Palestine and the British endorsement of the Jewish State of Israel set the stage for confrontation between the Jewish and the Arab world soon after their creation as independent political entities. The issue of human rights is grounded in the very birth of Israel as a Jewish state. The founding fathers of Israel did not support the notion of a secular state as the holocaust1 was still large in their memories. Moreover, the Diaspora Jewry in the pre-state period, called Yishuv2, did not like secular credentials as separation of religion from state. On the contrary,

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the Jewish religious heritage was made the very foundation of the newly created state of Israel. There was almost complete unanimity amongst the founding fathers in favour of creating a modern democratic state based on the principles of Zionism.3 The core of Zionism according to Gregory Mahler not only “sought to promote the return of Jews to the land of Israel and the revival of Jewish society, culture, language and other institutions” (2011: 48), it also attempted to establish a publicly recognized, legally secure home for the Jews in Palestine in order to ensure the freedom of its future generations from persecution. Zionism was thus going to shape the new course of socio-economic and political development of the new state of Israel from 1948 onwards.

Israel as a “Boiling Pot” Democracy – The Issues of Ethnicity and Religiosity Israel has a parliamentary form of democracy whose pattern of governance is rooted in ethnicity and religiosity. Ethnicity and religiosity as mobilizing instruments used by political elites to garner votes and influence the political behaviour have categorized the state as like a boiling pot. Ethnic and religious issues significantly influence the Israeli state and society as well as its democratic pattern of governance. While ethnicity in terms of distinctions between Ashkenazim4 and Mizrahim5 in society seems to be waning into insignificance, religiosity by way of religious-secular divisions appears to be gaining ascendancy in the parliamentary polity of contemporary Israel over the years. Though a vast majority of the Israeli people considers themselves as nonreligious, religious conceptions have permeated the civic culture in a comprehensive way. Horowitz and Lissak (1989) argue that the peculiar status of Judaism determines relations between religion and state and considerably influences the political centre despite the fact that Judaism is not accorded the status of state religion in Israel. Religiosity has remained a strong driving force in the determination of Israeli democracy. According to Charles Liebman (1997) Judaism has become increasingly particularistic and ethnocentric in Israel as it promotes little tolerance for the individual rights of non-Jewish citizens, and even less for the group rights of minorities. He characterizes the religious predominance in Israeli polity by “Jewish particularism” where “everything is perceived from within a Jewish prism and judged from within a Jewish perspective” (Liebman, 1997: 83).

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Zwi R.J. Werblowsky (1976) also argued that the people and religion have grown together in Israel. Religion according to Werblowsky has played an important role not only in proclaiming common beliefs and dictating popular behaviour of the people but also in imposing them on their vocation and very existence. Hence, Werblowsky described Israeli democracy and society as an “ethno-religious entity” (Werblowsky, 1976: 49). The religious roots of the Israeli demographic set up have influenced the democratic orientation and nationality which have been reflected in continuous Jewish–Arab confrontation. Baruch Kimmerling commented that the severity of the Arab–Jewish conflict gave more prominence to the “Jewish religion within the Jewish collectivity as a political entity in the Middle East” (Kimmerling, 1985: 264). The Six Day war (1967) and the Yom Kippur War (1973) according to Kimmerling pushed the youth in the country more towards their Jewish rather than Israeli identity. Despite the predominance of religiosity in the characterization of Israeli democracy, the real debate does not appear to be between communal and secular; rather it is between religious and secular. The religious world integrates the Jewish religion with Jewish culture and broadly consists of the Observants/Followers defined by divine commandments (the Halakha).6 The secular world, on other hand, believes in opening of its Jewish cultural apertures to the outside modern world and thus believes in modernization and secularization. Israeli democracy does not make any constitutional separation between religion, state and nationality. “Israeli nationality” is conspicuous by its absence in the state. Rather the common nationality of the citizens is either Jewish or Arabic. Zionism defines Jews only as nationality and Israel is established by Jewish nationality alone. Consequently, it is this Jewish orientation that has been affecting the democratic governance of the national polity in Israel. In addition to religiosity, ethnicity has also come to acquire an important role in the description of Israeli democracy. With the Jewish ethnic majority constituting three-fourth of the total population as against the Arabs and others of one-fourth, democracy in Israel has been viewed by scholars from the vantage point of ethnicity. In fact, the ethnic model of democracy in Israel establishes and perpetuates the majoritarian rule of the Jews over the minority Arabs.

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The first major analysis of the ethnic nature of Israeli democracy was undertaken by Sammy Smooha, for whom the Arab minorities constitute the most problematic issue in the Israeli democratic system. The Arabs, according to Smooha, only enjoy the status of an ethnic minority, not national minority. Accordingly Israeli ethnic democracy is a distinct type as it institutionalizes the “dominance of the major ethnic group along with democratic procedures” (Smooha, 1990: 410). Smooha argues that “so long as Israel remains a Jewish-Zionist State, Jews will continue to have a vested interest in sustaining Arabs as an ethnic minority in order to reduce the danger of assimilation and intermarriage, as well as to prevent the transformation of Israel into an open, pluralistic society” (Smooha, 1997: 222). Proposing the new formation as an “improved ethnic democracy”, Smooha believes that Arab-Jewish coexistence is attainable through “full democratization, de-ethnicisation, de-Judaisation, and de-Zionisation of the state” (1990: 230). Smooha’s characterization of Israel as an archetype of an “ethnic democratic model” initiated extensive debates on the issues of ethnicity, Jewishness, citizenship and democracy. In their critique of ethnic democracy model Yiftachel, Ghanem and Rouhana (1998) pointed to internal inconsistency in the application of “ethnos” (selective association by origin) and “demos” (inclusive association by residence or citizenship) (Yiftachel, Ghanem and Rouhana, 1998: 264). Yiftachel (1997: 506) had preferred the word “ethnocracy” to describe Israeli democracy in view of the creation of ethno-class segregation and inequality by the state’s mainly secular and Ashkenazi elites. Nadim Rouhana also views Israel as an ethnic state in theory, ideology and practice for its focus on “ethnic exclusivity”. Israel, for Rouhana, is essentially the State of the Jewish people and not of its Arab citizens. As’ad Ghanem (2002) too stated that Israel should be classified as ethnocracy because “minority group members in Israel are offered limited rights and integrated to a limited extent in the state’s politics, society, economy and media” (Ghanem, 2002: 48). Yoav Peled tried to explain the republican traditions in Israeli democracy through “Jewish ethnorepublicanism” (Peled, 1992). By introducing citizenship debate in the ethnic democratic model, Peled believed that Israeli political culture could be better understood in terms of republicanism, liberalism and ethnicity. Ilan Peleg (1998) used the term “ethnocentric order” to characterize Israeli democracy. According to Peleg the ethnocentrism of the Israeli polity could be visible from the overall

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character of the political regime and specifically in its decision for not adopting a formal written constitution. Jones and Murphy (2002) also acknowledged that ethnicity has gained significance in determining the political fortunes of the Jewish state. They characterized Israel as “ethno democracy” for embodying “a political entity that observes full democratic practices for the ethnic majority of the population but only partial democracy for the rest” (Jones and Murphy, 2002: 26). Alan Dowty does not find any abnormality in Israel’s link to ethnicity. However, according to Dowty the “Law of Return” and other explicitly Jewish features like maintenance of the Jewish majority, ties with the Jewish diaspora etc. do “place Israel among the more ethnic nation-states and thus among the more problematic in terms of ethnic minorities” (Dowty, 1999: 9). Both ethnicity and religiosity thus constitute important bases in the characterization of Israeli democracy and state-citizenship debates. The scholarly debates using these two important yardsticks have made Israeli democracy a reflection of the “boiling pot syndrome” in the postindependence era by highlighting the issue of human rights in the state vigorously.

Setting the State–Citizenship Debates in Israel: The 1967 War and Afterwards The onset of independence for the Jewish State was beset with acute bitterness and animosity with its Arab neighbourhood, particularly the Palestinian Arabs in the adjoining states of Egypt, Jordan, Syria and Lebanon. The post-independence Israel comprised Jews who had migrated from Europe in the aftermath of the holocaust. The Arabs who didn’t flee Israel in 1948 then constituted nearly 15 per cent of the Israeli population and about 10 per cent of the Palestinian population in West Bank and Gaza. With such a miniscule number the Arabs were reduced to minority both among the Palestinians and the Israelis. The new State of Israel though characterizing itself as a Jewish State in a Zionist society accorded its Arab residents the status of “Arab citizens of Israel” by providing complete social and political equality. Israel has no written constitution but it is governed by basic laws formulated to ensure its compliance with Jewish-Zionist principles. The State does not make any distinction between religion and nationality.

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Hence, the citizens are characterized either as Jews or Arabs. The Jews constitute the majority with 75 per cent of the population7 whereas the Arabs and Druze are minorities. The State is secular in the sense that it does not formally discriminate among its citizens on the basis of religion, race or gender. The Arab citizens, however, do not get many religious benefits or other social services8 accorded to the religious Jews in Israel. In order to differentiate its Arab citizens from the Palestinian Arabs, the Jewish State purported to create not only the Green Line demarcating Israel from Palestine but it also attempted to impose stringent conditions on its Arab citizens. Sensing the potential threat from its Arab citizens by virtue of their prospective religious affinity with the Palestinian Arabs, the Jewish State kept its Arab citizens under military government from 1948 to 1966. The genesis of mistrust lay in its religious leaning, reflected in the hostile policies of the Jewish state vis-à-vis its Arab citizens. The religious polarization between the Jews and the Arabs brought the issue of security to the centre stage of Israeli democracy. From the beginning the Arab minority was seen as a fundamental threat to Jewish identity and security. In order to legitimize the isolation of its Arab populace from the Jewish mainstream efforts were made to keep the Arab citizens in secluded regions, particularly in “Galilee and in the Triangle (along the Israeli Jordanian armistice line), as well as to the Bedouin of the Negev” (Peleg, 2004: 417). Projecting the Arab minority as a threat, a fifth column, the Arab sector, a second class citizen, Peleg argues that the Arab minority was reduced to an “inferior and subservient condition” in order to “establish and strengthen a full-fledged Jewish ethnocentric order in Israel” (2004: 418). Such a process led to the “ghettoization” of the Arab minority under the Jewish state before Israel entered into a major war with its united Arab enemies in 1967. The 1967 war brought about a new transformation in the state-citizenship debates in Israel. In order to counter the pre-emptive Arab strikes, the mighty Israeli defence force defeated the collective Arab world in 1967 and grabbed the territories from the conquered foes. The West Bank and Gaza which had been ruled by the Jordanian Empire and Egypt respectively came to be controlled by Israel after the 1967 war. The capture of West Bank and Gaza besides the Sinai Peninsula from Egypt and the Golan Heights from Syria expanded Israeli territory considerably in addition to strengthening its defence in its Arab neighbourhood. However, the territorial gains for Israel came at the cost of its security

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considerations. The relationships between the Arab citizens of Israel and their Palestinian Arab brethren on one hand and Jews on the other created great hurdles for the post-war Israeli society, economy and polity. Belief in the principle that the winner takes war booty from defeated foes kept Israel on its expansionist drive into the annexed areas, particularly the West Bank and Gaza. From 1967 onwards, Israel continued with its settlement policy by sending the emigrant Jews to the West Bank and Gaza with very attractive “absorption baskets”.9 Initially the Jews coming from Africa and Central Asia, called Sephardi Jews, were absorbed into the settlement colonies. Later with the collapse of the Soviet Union, many Jews from the disintegrated federal republics were given felicitating hospitality with permanent settlement in West Bank and Gaza. Hospitality for the Jews and hostility to the Arabs continued accentuating the rift between the Jews and Arabs of Israel along with a prospective bonding between the Israeli and Palestinian Arabs. From this emerged the debate about human rights focusing on the relationship between the Ashkenazi and Sephardi Jews initially and between the Jews and the Arabs subsequently.

Majority–Minority Debates and Human Rights Issues in Israel The United Nations Human Rights Index 2010 places Israel at number 16 in terms of violation of human rights. The Human Rights Index (HRI) is based on three key dimensions, viz., failure to ratify international covenants and treaties regarding human rights, violation of the international law on human rights and violation of International Humanitarian Law (IHL). These three dimensions are analysed on the basis of 22 indicators (ranging from non-compliance to international covenants, torture, arbitrary detention, unfair trials, impunity, discrimination etc.) in a given time period (Human Rights Program, 2009). Viewed from the perspective of the UN Human Rights Index, the majority–minority syndrome has remained one of the most disturbing dynamics of Israeli democracy and polity and continues to affect its human rights standing in the comity of nations. Since its emergence as an independent democratic nation, Israel has successfully conducted nineteen parliamentary elections which invariably strengthen the viability of the democratic procedures and structures of the Jewish state. It largely reflects the Israeli plurality, nay multiculturality, to accommodate diverse ethnic

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and religious challenges in its democratic fold. The role of the Supreme Court in upholding the Basic Laws through its progressive interpretation of laws also guaranteed Israeli democracy. The drafting of the “Basic Laws on Human Dignity and Liberty” as well as on “Freedom of Occupation” corroborated the democratic principles and pattern of democratic governance in Israel. However, the growing alienation of the Arabs over the years from the mainstream polity and the inevitable psychological rifts between the Jewish and the Arab voters appear to reflect the growing empathy of the Israelis with the democratic political system. The relationship between the majority Jews and the minority Arabs has taken different forms. Scholars have attempted to define the Israeli democratic pattern from the exclusive viewpoint of ethnicity by highlighting ethnic majoritarian variables in Israeli political set up which exclude the Arab minority. In other words, they have sought to define Israeli democracy from the vantage point of the “in-group” Jewish majority directed towards the “out-group” Arab minority. In the ethnic categorization of Israeli democratic system non-ethnic Arab segments of the society appear to have failed to obtain the principles of equality and justice and thus become more vulnerable to human rights violations by the Jewish state. The very foundation of the state on Jewish-Zionist ideology has led to a strengthening of the majority–minority polarization in Israel. Though the basic laws do not clearly differentiate the minority Arabs from the Jewish majority, the working of the constitutional laws and political institutions sought to strengthen the majority–minority consciousness greatly. The segregation of the Arab areas from the Jewish region in Israel enabled “the Jewish State to keep members of the Arab minority out of the labour market, thus protecting the mostly Sephardic Jewish workers who were the potential competitors of the Arabs” (Peleg, 2004: 418). The issue of human rights became significant with the formation of the Israeli military government in the Arab areas, which came to be described by scholars as “captive local market” used for industrialization of the state. In such a situation, the Jews came to be viewed as the “rulers” whereas the Arabs are the “ruled” (ibid.) One of the important areas of human rights concerns and existing inequalities in Israel has been the plight of the Arabs and their limited access to the land. Peleg (2004) argued that while the population of the

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Arabs has “increased at least sevenfold since Israel’s establishment, that population’s land reserves have declined significantly due to massive expropriation by the state and the transfer of Arab-owned land to Jewish hands. While Jews were allocated state lands and received substantial assistance in settling them, Arabs were denied such allocation and assistance. The net result of the government’s policy has been the transfer of land into the hands of the Jewish majority at the expense of the Arab minority. This discriminatory land policy is most evident in the fact that political control over and use of land in Israel has remained under exclusive Jewish control”10 (Peleg, 2004: 421). By losing their lands with the formation of Israel on Palestinian land as a result of the formative war during 1948 and the subsequent wars, the Arabs underwent “a process of depeasantification” (Peleg, 2004: 12). The political compulsions forced the Arab peasants to move into “nonagricultural, unskilled, and semiskilled wage labour, entering what is often called a split or dual-labour market” (Peleg, 2004: 13). In such a labour market it is argued that the Jews occupied the skilled and higher-paying positions whereas the Arabs were reduced to lower-level positions. Peleg (2004) also stated that systemic discrimination – direct as well as indirect – exists in Israel vis-à-vis the Arabs. The Arab towns and villages occupy the lowest sections of the socio-economic ranking in Israel. The budgetary allocations available to Arab municipalities are proportionately low. There have been higher rates of unemployment in Arab towns. Further, the Arab educational system has always been under the tight control of the State and has largely been administered by the Jews. Arab localities are often viewed as “isolated islands within the national regional systems” (Dichter, 2001: 8–10 quoted by Peleg, 2004: 424). Politically, the Arabs are given fundamental rights such as speech and assembly; economically and socially they are subjected to discrimination in numerous areas like education, housing, employment, financial allocations etc. and have been perceived as a “subservient and dominated minority” (Peleg, 2004: 419). It is no doubt true that the electoral democracy based on the parliamentary form of government and list system allows the Arabs to send their elected members to the Parliament called the Knesset, but the Arab politicians have continued to remain absent from higher decision making posts. Absence of a full-fledged recognition of the rights of Arab minority in Israel and its failure to conform to the principles

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of western liberal democracy led Peleg to characterize Israel as “an archetype of a Majority Hegemonic System” (Peleg, 2004: 430).

Arab Minorities and Human Rights Movements in Israel The genesis of human rights movements in Israel could be seen from the very characterization of the minority Arabs in the State. The minorities have come to be viewed as “a remote out group” (Smooha, 2004 quoted in Canetti-Nisim et al., 2008), “a hostile minority” (Canetti-Nisim, Ariely and Halperin, 2008), “the most hated as well as the most expelled minority group” (Canetti-Nisim and Pedahzur, 2003; Raijman and Semyonov, 2004; Shamir and Sagiv-Schifter, 2006; Halperin, Pedahzur and CanettiNisim, 2007), “a threat” and “a fifth column” (Peleg, 2004) and “secondclass citizenship” (Halper, 2008). Despite getting the legal status of citizenship within Israel, the minority Arabs were kept under military rule till 1967, based on systematic and systemic discrimination in various fields and at various levels. Sherry Lowrance (2006) argued that because of Jewish security concerns and the official Zionist ideology of the state, the Israeli Arabs still face numerous obstacles in achieving equality. “Security concerns prevent them from obtaining employment in the large Israeli security complex, where many of the most prestigious and well paying jobs are found” (Lowrance, 2006: 172). Since acquisition of land was linked with citizenship rights, the Knesset passed a law in 1979 authorizing the Jews to acquire Palestinian lands in West Bank and Gaza. Moreover, a Defence Emergency Regulation gave Israeli authorities in occupied territories, amongst other things, “the power to detain people without trial, to issue expulsion orders, to practise administrative detention, house arrest and the censorship of publications” besides providing “necessary means for expropriating, imposing collective punishments, and declaring any association illegal” (Coates, 1985: 18). These issues kept on dividing the Jewish citizens and Arabs both within Israel and in Palestine. Human rights became part of the democratic discourse only during the 1980s with the increasing consciousness amongst the Israeli and Palestinian Arabs inside and outside the Green Line. It is true that most of the countries in the Middle East, including Israel, ratified the Universal Declaration of Human Rights, 1948 and Covenants of Civil and Political

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Rights, and Social Economic and Cultural Rights, 1976, but the movement for the protection and promotion of human rights began only during the 1980s. The real debate in Israel on the issue of human rights was the recognition of the phenomenon of human rights as “entitlements”. Israel, however, came to be viewed by the human rights organizations as “the world’s grossest violators of human rights” (Kaufman, 2011: 178), especially in view of its relations with the Arab minorities within and outside Israel. Most of the Jews continued to believe that security would be the paramount necessity for the state of Israel and force would be the “the only language the Palestinians understand” (Kaufman, 2011: 186). The increasing use of force by Israel against the Palestinian Arabs and the distrust by the state of its Arab citizens laid the basis for protest which took the form of Intifada11 – the first Intifada began during 1987–93 and the second in September 2000. The rise of Intifada led to both violation of human rights and the emergence of human rights groups inside and outside of the Green Line. Human rights concerns spread not only within Israel but also in the West Bank and Gaza Strip which remained annexed territories under Israeli control. “By the end of the 1980s, human rights had come to be adopted by increasing numbers of Palestinians and Israelis as a language and politics of change” (Hajjar, 2001: 27). “Several human rights groups, including Amnesty International found that the Israeli security forces, in policing the violent demonstrations, had tended to use military methods rather than policing methods involving the protection of human lives” (Reporters Without Borders, 2003: 14). The retaliation by the Israeli Defence Force (IDF) for the killings of Jewish citizens actually targeted large Palestinian areas or towns in order to plant Israeli settlers. “Israel for years has pursued a policy of assassinating its political opponents” (Reporters Without Borders, 2003: 21). Such a practice is called “extrajudicial executions” in Israeli defence discourse. The actual number of settlements in the West Bank and Gaza is difficult to ascertain, but it is estimated that there are about 300,000 Jewish settlers in West Bank and around 5,000 settlers in the Gaza Strip. “Although the Israeli government prefers to talk about ‘targeted killings’ and ‘preventive actions’ rather than ‘extrajudicial executions’, members of the Israeli government have confirmed that such killings are a deliberate government policy carried out under government orders” (Reporters Without Borders, 2003: 21). “The Israeli authorities have consistently used closures, curfews

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and demolition of homes as a form of collective punishment against Palestinians” (Reporters Without Borders, 2003: 23). Israeli policies of discrimination against and killings of the Arabs and the corresponding Palestinian Arab retaliation made the task of human rights activists and organizations in the West Asian region more challenging. If the State of Israel is dubbed a violator of human rights, similar charges of human rights violations have also been made against the Palestinian authorities, especially in the aftermath of the Intifada.

Israeli-Palestinian Conciliation and the Issues of SelfDetermination and Human Rights in Palestine Under greater domestic and international political pressures Israel started the process of negotiations with the Palestinian Arabs in the West Bank and Gaza. As an outcome of the Madrid Conference (1991) and Oslo Accords (1993) Israel agreed to pull out its troops from all the occupied territories, except for the settlements, a few security zones (borders and military bases) and East Jerusalem. Israel had to withdraw from more than 80 per cent of the West Bank and the Gaza Strip. Under the agreements such an Israeli withdrawal had to start in December 1993 and was to be completed by the end of 1994. Negotiations for a permanent agreement were to start in the third year of the five-year interim period and be completed by May 1999. Such a reconciliation process on the part of Israel would involve Jerusalem, the settlements, the borders and refugees. “One of the most significant aspects of the Oslo Agreement was that it gave the Palestinian Liberation Organization (PLO)12 responsibility for negotiating with Israel, while the Palestinian Authority was given the internal roles of preserving security, building the economy, and developing the institutions of Palestinian society” (Salem, 2011: 159). The emergence of Fatah as the political formation in the West Bank and Hamas as a militant political organization in the Gaza Strip further accentuated the human rights issues. Lisa Hajjar (2001) argues that the human rights movement suffered a blow with the formation of the Palestinian Authority in 1994 as the direction of the negotiations started shifting towards security and territory rather than rights. Known for their aggressive postures vis-à-vis their political opponents, “Hamas and Fatah violated international humanitarian law and the United Nations Declaration of Human Rights on numerous occasions and

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continued to threaten the safety of the Palestinian people” (Eid, 2011: 195). Hamas is more vociferous in its actions and hence its human rights violations were actually related to Fatah supporters, party leaders and functionaries, civilians and the Palestinian Christian community. Eid further argues that the Palestinian land in the West Bank and Gaza has actually been divided into two separate states: while Gaza has largely remained under the rule of Hamas, the West Bank is in effect ruled by Fatah. The emergence of an independent Palestinian state is based on the direction and leadership of both Hamas and Fatah and their respective commitment to human rights for the Palestinian populace. Human rights violations have become more widespread since the start of the second Intifada against Israeli forces and Jewish citizens. Also known as al-Aqsa Intifada, the Palestinian protestors in the West Bank and Gaza became more violent and aggressive in their targeting of Jews, especially in the Gaza Strip. As retaliation under “operation cleaning”, Israel continued to demolish “hundreds of houses, uprooted thousands of trees, and destroyed thousands of acres of land in the Gaza Strip” (Reporters Without Borders, 2003: 40). Israel justifies its retaliation on the grounds of preventing future attacks against its civilians and soldiers in the Gaza Strip. “Thousands of people have been made homeless and thousands have lost their sole source of income for many years to come” (Reporters Without Borders, 2003: 41). In response to the Israeli human rights organizations, a large number of Palestinian human rights groups have also made their debut. Law in the Service of Man (LSM) was renamed Al-Haq in the West Bank and the International Commission of Jurists (ICJ) in Gaza have been engaging in human rights monitoring and in publishing human rights reports in the region. Highlighting the human rights violations and supporting the human rights concerns have been the incredible achievements of Al-Haq and ICJ in the Palestinian region.

Growing Human Rights Consciousness in Israel The decade of the 1980s witnessed an increasing concern for human rights across the globe. The intervention by Europe and the US brought about many human rights organizations in Israel and Palestinian lands. Under domestic pressures and international concerns, human rights started becoming an important area of policy-making discourse in Israel. The publication of the Landau Commission report (an official Israeli

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investigation into the interrogation practices of the General Security Services (GSS)) brought the human rights issue to the centre stage of Israeli polity. Even though the Landau report institutionalized the torture by state agencies, it paved the way for the emergence of various civil society and human rights organizations. The Public Committee against Torture in Israel, the Association for Civil Rights in Israel (ACRI), and B’tselem emerged as some of the leading human rights organizations in Israel during the 1980s and 1990s. The onset of liberalization and globalization from the 1980s onwards started transforming the state citizenship debates and majority-minority relations in Israel. This transformation could have been reflected in the pattern of governance of the state, especially in its relations both with Arab minorities and the Palestinian Arabs. With ideological issues lagging behind, the Israeli state under left, right or the centrist dispensation in the twenty-first century has started taking over from the economic agenda and governance drives as the ideological agenda of Eretz Israel (focusing on greater Israel encompassing the entire Palestinian land). This transformation further strengthens the need for revisiting the Israeli ethnic democracy model from the perspective of neo-liberal economics. The coalition governments of the twenty-first century in Israel have moved beyond the erstwhile political-ideological issues hitherto revolving around Palestine. The right wing Likud under Ariel Sharon during 2003–05, for instance, championed the neo-liberal agenda by promoting the “Disengagement Plan 2005” which involved the “withdrawal of Israeli troops from the Gaza Strip, the dismantlement and forced evacuation of all Israeli settlements in the region, and the transfer of power there to the Palestinian Authority” (Newman, 2011: 64). Despite its opposition inside Israel, Sharon’s unilateral disengagement plan actually laid the foundation of further reconciliatory moves with the Palestinian Arabs in the West Bank. From 2009 the peace process was taken ahead by the right wing Likud Prime Minister, Binyamin Netanyahu, though in somewhat reluctant manner. The very nature of political participation, conciliation and resilience, and extra-parliamentary mobilization reflects the changing socio-political dynamics in the minority-majority syndrome or “outgroup”–“ingroup” relationship in Israeli democratic polity and society.

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Reeling under the twin constraints of international persuasion and economic pragmatism the Jewish-Zionist State has started showing signs of improvisation in its pattern of governance and human rights concerns. Hence, it is no longer prudent to characterize it as a democratic model relying exclusively on the “ethnic majoritarianism”. The time has come to study and analyze afresh the changes in the characterization of the ethnic democratic model of the Jewish-Zionist State in Israel and its commitment to human rights concerns in the region from different vantage points and other associated variables.

Final Comment Israel is passing through a difficult phase of political fragmentation and ideological consensus. While there has been a broad consensus on the notion of human rights which act as the real strength of democratic institutions, Israeli society is marked by dissent in terms of the upsurge of various minor and major identities. Israel is still struggling to harmonize its Jewish Zionist identity with its democratic governance. Israel now faces a greater challenge of reconciling the Jewish predominance with Arab sensitivity. It needs to accommodate the rights of the Arab minority without undermining the concerns of the Jewish majority. The democratic movements of the 1980s and the human rights concerns of the post-globalization era have made the Arab minorities – both in Israel and in Palestine – conscious and assertive in demanding an equitable and respectable share in economy and polity. Following the protests across region and globe by human rights organizations, Israel has started moving towards the path of “greater democracy, equality, and human rights”. The democratic journey of Israel since 1948 has indeed produced fertile political results, yet the parliamentary polity of Israel still needs to move ahead from being seen as a “pariah state” (Kaufman, 2011: 179) and transform its pattern of governance by correcting its human rights discourse both in theory and practice. Israel needs to shed its political isolation, especially in its surrounding Arab world, by showing that it can adhere substantially to human rights vis–à-vis its Arab minorities. As Kaufman rightly stated, Israel is required to learn from Turkey whose entry into the prestigious club of the European Union was based on its acknowledgement of and adherence to human rights standards.

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State-citizenship debates on the issue of the Jewish majority and the Arab minority should be looked at from the perspective of human rights for which both the majority and the minority communities need to come forward in a friendly spirit of accommodation as against a hostile attitude of confrontation.

Notes 1

The Holocaust was the darkest chapter of Jewish history, in which around five million Jews were brutally murdered by Nazi Germany during the Second World War. It is also claimed that the creation of Israel is the outcome of Diaspora Jewry from Europe and the Holocaust only facilitated the emergence of Israel at a much faster pace. 2 Yishuv is called the pre-state period or the Jewish community in Palestine. 3 Zionism is an ideology according to which Jews all over the world constitute a nation in the political sense. Based on their national existence in biblical times, Jews believe in their right of self-determination in their historic homeland, the land of Israel. 4 Ashkenazi Jews are immigrants from Europe and US. They occupy important positions in the state economy and polity. 5 Mizrahi Jews are immigrants from Central Asia and Africa. Unlike Ashkenazi Jews, the Mizrahis hold the lower rungs of economy and polity in the state. 6 Halakha deals with Jewish laws and their interpretation in strictly religious terms. 7 Israel’s total population in 2008 was recorded as 7.374 million. Jews constitute the majority with 5.569 million with 75.5 per cent of the population. The non-Jews comprise Israeli Arabs with 1.24 million and 16.8 per cent, Christians 0.153 million with 2.1 per cent, and Druz 0.121 million with 1.7 per cent of the population (Mahler, 2011). 8 The Arab citizens are not permitted to undertake military training but it is mandatory both for male and female Jewish youth. 9 Under the Law of Return all Jews across the world are warmly accepted in Israel. Such immigrants not only get good monetary compensation but are also provided all amenities in terms of housing, employment and social security. 10 The Jewish National Fund (JNF) and the Jewish Agency have had important roles in the official system by which land decisions are made, and both the JNF and the Jewish Agency have been exclusively in Jewish hands. The land discrimination is seen in that at the time of independence the Jews were controlling only about 13.5 per cent of Israel’s territory but this expanded to 93 per cent in the aftermath of the 1967 war (Peleg, 2004: 421). 11 Intifada refers to protests by Palestinians against Israeli settlements in the West Bank and Gaza. Israel witnessed two Intifadas – the first from 1987–1993 which broadly remained peaceful whereas the second, emerging in September 2000, was more violent. 12 The Palestine Liberation Organization (PLO) was formed in 1964 under the aegis of the Arab League as the sole “political and paramilitary organization” to

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work for the liberation of the Palestinians from Israel. The Executive Committee – the key decision-making body of the PLO –remained under the control of its charismatic leader Yasser Arafat from 1969 till the time of his death in 2004. Israel claimed that all terrorist activities and guerrilla acts inside the country were the work of the PLO activists. Under the Madrid Conference (1991) and Oslo Accords (1993), both PLO and Israel changed their perceptions of each other and started entering into the phase of negotiations and discussions with each other.

References and Reading Canetti-Nisim, Daphna and Pedahzur, Ami (2003). “Contributory Factors to Political Xenophobia in a Multicultural Society: The Case of Israel”, International Journal of Intercultural Relations, Vol. 27, No.3. Canetti-Nisim, Daphna, Ariely, Gal and Halperin, Eran (2008). “Life, Pocketbook, or Culture: The Role of Perceived Security Threats in Promoting Exclusionist Political Attitudes toward Minorities in Israel”, Political Research Quarterly, Vol. 61, No. 1 (March). Accessed through JSTOR Archives on 01.10.2012. Coates, Ken (1985). Israel and Palestine: Human Rights in Israel and in the Occupied Territories. END Papers Nine. Nottingham: Bertrand Russell Peace Foundation and the Spokesman. Dichter, Shalom (Shuli) (2001). “The Government’s Plan for Development in the Arab Localities” in Sikkuy’s 2000–01 Report. Jerusalem. Dowty, Alan (1999). “Is Israel Democratic? Substance and Semantics in the ‘Ethnic Democracy’ Debate”, Israel Studies, Vol. 4, No. 2. Eid, Bassem (2011). “Fatah and Hamas Human Rights Violations in the Palestinian Occupied Territories from April 2006 to December 2007” in Elizabeth G. Matthews (ed.) The Israeli-Palestine Conflict: Parallel Discourses. London: Routledge. UCLA Centre for Middle East Development (CMED) Series. Ghanem, As’ad (2002). “Can Universal Liberalism be effective without Collective Rights? A Response to Offe”, Hagar, International Social Science Review, Vol.3, No.1. Hajjar, Lisa (2001). “Human Rights in Israel/Palestine: The History and Politics of a Movement”, Journal of Palestine Studies, Vol. 30, No. 4. Accessed through JSTOR Archives on 01.10.2012. Halper, Jeff (2008). An Israeli in Palestine: Resisting Dispossession, Redeeming Israel. London: Pluto Press. Halperin, Eran, Pedahzur, Ami and Canetti-Nisim, Daphna (2007). “Psycho-Economic Approaches to the Study of Hostile Attitudes towards Minority Groups: A Study Among Israeli Jews”, Social Science Quarterly, Vol. 88.

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Horowitz, Dan and Lissak, Moshe (eds.) (1989). Trouble in Utopia: The Overburdened Polity of Israel. Albany: The State University of New York Press. Human Rights Program (2009), escola de cultura de pau, University of Barcelona. Jones, Clive and Murphy, Emma C. (eds.) (2002). Israel: Challenges to Identity, Democracy and the State. London: Routledge. Kaufman, Edward (2011). “Merging the Human Rights Dimensions into Peace Making” in Elizabeth G. Matthews (ed.) The Israeli-Palestine Conflict: Parallel Discourses. London: Routledge. UCLA Centre for Middle East Development (CMED) Series. Kimmerling, Baruch (1985). “Between the Primordial and the Civil Definitions of the Collective Identity: Eretz Israel or the State of Israel”, in Erik Cohen et al. (eds.) Comparative Social Dynamics: Essays in Honour of S N Eisenstadt. Boulder and London: Westview Press. Liebman, Charles S. (1997). “Democracy and Religion in Israeli Society”, in Charles S. Liebman (ed.). Religion, Democracy and Israeli Society. Amsteldijk: Harwood Academic Publishers. Lowrance, Sherry (2006). “Identity, Grievances, and Political Action: Recent Evidence from the Palestinian Community in Israel”, International Political Science Review / Revue internationale de science politique, Vol.27, No. 2 (April). Accessed through JSTOR Archives on 01.10.2012. Mahler, Gregory S. (2011). Politics and Government in Israel: The Maturation of a Modern State. Plymouth: Rowman and Littlefield Publishers. Newman, David (2011). “From Bilateralism to Unilateralism: The Changing Territorial Discourses of Israel-Palestine Conflict Resolution” in Elizabeth G. Matthews (ed.) The Israeli-Palestine Conflict: Parallel Discourses. London: Routledge. UCLA Centre for Middle East Development (CMED) Series. Peled, Yoav (1992). “Ethnic Democracy and the Legal Construction of Citizenship: Arab Citizens of the Jewish State”, American Political Science Review, Vol. 86, No.2. Peleg, Ilan (1998). “Israel’s Constitutional Order and Kulturkamf: The Role of Ben-Gurion”, Israel Studies, Vol. 3, No. 1. —. (2004). “Jewish-Palestinian Relations in Israel: From Hegemony to Equality?”, International Journal of Politics, Culture, and Society, Vol. 17, No. 3. Accessed through JSTOR Archives on 01.10.2012.

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Raijman, Rebecca and Semyonov, Moshe (2004). “Perceived Threat and Exclusionary Attitudes Toward Foreign Workers in Israel”, Ethnic and Racial Studies, Vol. 27, No. 5. Reporters without Borders (2003). Israel/Palestine: The Black Book. London: Pluto Press. Salem, Walid (2011). “Democratization in Palestine: From Civil Society Democracy to a Transitional Democracy” in Elizabeth G. Matthews (ed.) The Israeli-Palestine Conflict: Parallel Discourses. London: Routledge. UCLA Centre for Middle East Development (CMED) Series. Shamir, Michal and Sagiv-Schifter, Tammy (2006). “Conflict, Identity and Tolerance: Israel in the Al-qsa Intifada”, Political Psychology, Vol. 27, No.4. Smooha, Sammy (1990). “Minority Democracy in an Ethnic Democracy: The Status of the Arab Minority in Israel”, Ethnic and Racial Studies, Vol. 13, No. 3. Smooha, Sammy (1997). “Ethnic Democracy: Israel as an Archetype”, Israel Studies, Vol.2, Issue 2. —. (2004). Index of Jewish-Arab Relations in Israel (in Hebrew). Haifa: University of Haifa Press. Werblowsky, Zwi R.J. (1976). Beyond Tradition and Modernity: Changing Religions in a Changing World. London: The Athlone Press. Yiftachel, Oren (1997). “Israeli Society and Jewish Palestinian Reconciliation: Ethnocracy and its Territorial Contradictions”, Middle East Journal, Vol. 51, No. 4. Yiftachel, Oren, Ghanem, As’ad and Rouhana, Nadim (1998). “Questioning ‘Ethnic Democracy’: Response to Sammy Smooha”, Israel Studies, Vol. 3, No. 2.

CHAPTER FIFTEEN HUMAN RIGHTS IN SOUTH AFRICA: NELSON MANDELA’S REGIME AND AFTERWARDS RAMESH KUMAR

Abstract This paper is an empirical endeavour to comprehend and analyse the constitutional and practical status of human rights in South Africa. The xenophobic regime was opposed by the African National Congress and other nationalist organizations in South Africa. Nelson Mandela was the main leader against the apartheid regime. Mandela’s views and works are guidelines for his successors, particularly Thabo Mbeki and now Jacob Zuma. A strong institutional and democratic network was established with the help of a new constitution and reforms to remove anti-human rights legacies of the white regime. However, the post-apartheid regime is also beset with several problems and allegations of human rights violations. Based on personal observations and fieldwork experiences, the paper attempts to analyse objectively the changing nature of human rights in South Africa during Nelson Mandela’s regime and afterwards.

Introduction Human rights are minimal standards of human life. The dignity of every human being is the soul of human rights. Human rights are a set of those rights which ought to be enjoyed by all human beings of the world irrespective of their biological, social, economic and political status. South Africa, officially the Republic of South Africa, is a leading developing country of Africa. According to the 2001 census, its population is 51,770,560. This is divided into different racial groups. The country is

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described as a rainbow nation with a great diversity of cultures, religions, colours and languages. South Africa is full of enriched tribal civilizations. The South African Union was accepted in 1910 and inaugurated on 31 May 1910. It was a victory of local Europeans but the new South African Union was against non-whites. All rights and natural resources were reserved for Europeans. Various rules and regulations were introduced and implemented in an inhuman manner against non-whites. The post-Second World War period is known as the apartheid period. After a great struggle, South Africans achieved their independence and won the battle against the anti-human rights regime under the leadership of Nelson Mandela in 1994. Although at present South Africa is not a paradise of human rights, it is free from apartheid malevolence.

Objectives The main objective of this paper is to assess the policies, programmes, problems and challenges of the post-apartheid regime in respect of democracy and human rights. The paper also attempts to evaluate the role of post-apartheid regime for the restoration of human rights in the country.

Methodology The paper seeks to combine both inductive and deductive methodologies in the study of human rights in South Africa. The researcher has used empirical, historical and analytical methods of research and used statistics when they substantiate the arguments. The paper is an outcome of information collected from primary and secondary sources during a field trip conducted by the researcher to South Africa in 2008. Observation and empirical methods were used during the field visit to the target area. The primary sources are based on reports, interviews, field data speeches, official documents and other publications. The secondary sources largely comprise books and articles from journals and newspapers available in South Africa and India.

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Nelson Mandela—Crusader for Human Rights in South Africa Nelson Mandela is regarded as the great statesman who brought South Africa from its racist apartheid regime. Born on 18 July 1918, Nelson Mandela fought for the independence of South Africa while remaining behind prison for 27 years. It was because of his consistent struggle based on non-violence that he succeeded in bringing South Africa to the political platform of the global world. His endeavours and struggles ultimately brought him the Nobel Peace Prize in 1993.1 The philosophy, vision and thoughts of Nelson Mandela made him a prophet of human rights in South Africa. He always expressed his strong belief in human rights. His utterances before the court of law during his long imprisonment were astonishing: In its proper meaning, equality before law means the right to participate in the making of the laws by which one is governed, a constitution which guarantees democratic rights to all sections of the population, the right to approach the court for protection or relief in the care of the violation of rights guaranteed in the constitution and the right to take part in the administration of justice as judges, magistrates, attorney-general, law advisers and similar positions. In absence of these safeguards, the phrase ‘equality before law’, in so far as it is intended to apply to us, is meaningless and misleading. All the rights and privileges to which I have referred are monopolised by whites and we enjoy none of them. The white man makes all the law, he drags us before his courts and accuses us and he sit in judgment over us ... I hate race discrimination most intensely and in all its manifestations. I have fought it all during my life; I fight it now and will do so until the end of my days.2

According to Mandela, democracy is the only foundation of human rights: “Democracy is based on the majority principle. This is especially true in a country such as ours where the majority has been systematically denied its rights. At the same time, democracy also requires that the right of political and other minorities be safeguarded.” He claimed that in a non-apartheid South Africa, There will be regular, free and open elections, at all levels of government – central, provincial and municipal. There shall be a social order which respects completely the culture, language and religious rights of all sections of our society and the fundamental rights of all individuals … The task at hand on will not be easy. But you have mandated us to change South Africa from a country in which majority lived with little hope, to one

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In his celebration speech on 10 May 1994, as the first president of South Africa, in Pretoria, he stated: We succeeded ... we have triumphed in the effort to implant hope in breast of the millions of our people. We enter into a covenant that we shall build the society in which all South Africans, both blacks and whites, will be able to walk all, without any fear in their hearts, assured of their inalienable right to human dignity – a rainbow nation at peace with itself and the world ... Never and never again shall it, be that this beautiful and will again experience the oppression of one by another and suffer the indignity of being the shrunk of the world. Let freedom reign! Every word of his speech asserted democratic values and human rights.4

Some important ideas for the study of human rights were expressed by him on different occasions. He never accepted racism in any form, anywhere. He argued that he detested racism because it was a “barbaric thing, whether it comes from a black man or a white man”.5

Apartheid South Africa: Historical Legacy Apartheid (pronounced apar-tate), an Afrikaner word meaning “separateness”, was the official policy of the government of South Africa from 1948 to 1990. The roots of this system can be traced to an era of slavery. When the National Party assumed parliamentary control of South Africa, it had only to refine and further codify a practice of racial discrimination that was already deep-rooted. The intentions of the new regime were clearly racist and unfair. Various acts were introduced to implement and maintain this system. While gross human rights violations were normal in the state, the racial favouritism and exploitation was a common feature in socio-economic relations. The implementation of apartheid resulted in the forced relocation of 38 million blacks and unprecedented human rights violations, which created resistance against whites, thereby making South Africa “a pariah nation”. “The policy of apartheid is born as a cancer type disease of socio-economic inequality and starvation.”6 The Constitution of the Union of South Africa, 1910, did not devote even a single welfare article to the non-whites. Constitutional rights were given

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only to whites; Cape colony was the only exception, where blacks were granted the right to vote, but not allowed to field African candidates.7 Racial discrimination was a part of the western colonial system, all over the world. In South Africa also, it was adopted forcefully by European settlers. After the configuration of the Union of South Africa, the white government crossed all boundaries of morality and humanity. All African blacks were not in a position to earn a coin or to get a single inch of land without authorization from the white government. Racial segregation became official policy all over the Union of South Africa under regime of Jan Smuts and J.B.M. Hertzog.8

The Native Land Act, No. 27 of 1913 The Native Land Act was introduced on 19 June 1913. According to the Act, Africans had no right to own or even rent land outside the designated reserves; they were allotted only 7 per cent of the land of South Africa, although a promise was made to increase the land area. The Cape was the only exclusion from the provisions of Act, because of existing black franchise rights which were enshrined in the South African Act. During the apartheid era, the reserves were transformed into Bantustans and later into independent homelands within South Africa.9 Africans had no right to purchase, inherit, or any other means except in Native Reserves or areas of Africans freehold (7 per cent land), which was not sufficient for four million Africans. Africans were removed forcibly by the government from white-owned land.

The Native (Black) Urban Areas Act of 1923 (Act No. 21, commenced 14 June 1923) The act had divided South Africa into “prescribed urban” and “nonprescribed urban” areas and harshly controlled the movement of black males between these two areas. The municipalities were empowered to impose restrictions and to plan residential separation, to ban further freehold for Africans because they were not accepted as permanent urban residents. Each local authority was made responsible for the black males in its areas and native advisory boards were set up to regulate the inflow of black workers and “surplus” blacks, especially the non-employees.10 The reserve area for blacks was increased to 13 per cent. The Prime Minister Verwoerd had adopted apartheid in very wild manner. He was

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never in favour of relationship between the white and black races. He brought in the Bantu Authority system, under which ethnic separation was proposed. The native commissioners and the new Native Affairs department were introduced to achieve his planned apartheid. He was not in favour of African education. He said, “What is the use of teaching the child mathematics when it cannot use it in practice?”11 In 1946, a commission was appointed under Judge Henry Fagan to suggest the recommendation on segregation and African rights. The commission rejected the separation and racial segregation and declared it totally impracticable. But Smuts refused the commission’s recommendation.12 The National Party won the 1948 elections with a manifesto of apartheid. David F. Malan became the Prime Minister, and he and his minister of Native Affairs Dr. H.F. Verwoerd (appointed in 1951) highlighted the grand apartheid system.13 Under their policy, the country was divided on racial grounds by a legal infrastructure.

Population Registration Act No. 30, 1950 This Act led to a national register in which every person’s race was recorded. A race was classified by a Race Classification Board which was empowered to decide a person’s race if questioned by someone. All past discrimination for whatever reason – race, class, mother tongue, country of origin or any combination of these – was included in the legislation that attempted to classify three basic categories: Black, Coloured and White. A Black was defined as “a person who is or is generally accepted as a member of any aboriginal race or tribe of Africa”. Coloured was a residual category in which state officials included people who were not classified white or black. Due to their power and privilege, the category of whites was the most respected and prestigious race for government. According to the provisions of the Act “a white person is generally accepted as white person and is not in appearance obviously not a white person and the possibility of dispute and arbitrary decisions become obvious”.14 For the determination of the race of a white person “habits, education, speech and department and demeanour in general” constitute important variables. Another condition under Section 5(5) of the Act provided that a person would be classified as white if both natural parents were classified white, and if any one natural parent was not declared white, the person would be classified as coloured or black. The subgroups under coloured were: Cape coloured, Malay, Griqua, Chinese, Indian, other Asiatic and other coloured.15

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The jobs, professions and basic civil, socio-economic rights were determined by racial identity.16

The Native (Abolition of Passes and Coordination of Documents) Act, Act No. 67 of 1952 The Act of 1952 was known as the Pass laws. Under the provisions of this Act, black people were bound to carry identification with them at all times. A pass included a photograph, details of place of origin, employment record, tax payments and permission of police. It was a serious criminal offence to be unable to produce a pass whenever required to do so by the police. No black person could leave a rural area for an urban place without a permit from the local authority. Upon arrival in an urban area, a permit to seek work had to be obtained within 72 hours, otherwise the black would not be allowed “in the urban area”.17

The Bantu Education Act, Act No. 47 of 1953 The Bantu Education Act, 1953, was passed by South African government to maintain the racial supremacy of whites in higher education. The Bantu Education Act, Act No. 47 of 1953, was implemented as another tool against Africans. This Act was aimed at preventing Africans from receiving the latest education. It was made compulsory to study in English and Afrikaans languages.18

Bantustans: Socio-Economic Human Rights Conditions South African government had established “reserves” in 1913 and 1936, with the intention of segregating blacks from whites. These were to be territories into which the blacks of South Africa were to be corralled.19 The area reserved for Africans was not sufficient for four million Africans in 1913. Less than 10 per cent of the area of South Africa was provided to Africans, who were more than 80 per cent of the total population according to 1911 census. In 1910, the total population of South Africa was 5,975,000 of which 4,000,000 were Africans. 1,275,000 whites owned more than 90 per cent of the land.20 Ten Bantustans or homelands were established for the black inhabitants of South Africa, as part of the policy of apartheid. The term was first used in the late 1940s and was coined from “Bantu” (meaning “people” in the

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Bantu languages) and -stan meaning “land of”. The Bantustans were Transkei (for the Xhosa people), declared independent on 26 October 1976); Bophuthatswana (Tswana) declared independent on 6 December 1977), Venda (Venda), declared independent 13 September 1979), Ciskei (Xhosa), declared independent on 4 December 1981, Gazankulu (Tsonga), Kangwane (Swazi), Kwa Ndebele (Ndebele), Kwazulu (Zulu), Lebowa (Northern Sotho or Pedi) and Qwawa (Southern Sotho). According to Verwoerd, the Bantustans were the “original homes” of the black peoples of South Africa.21 The Bantustans were generally deprived, with few local employment opportunities being available.

Formation of the African National Congress In the nineteenth century, the Ethiopian churches organized around the slogan “Africa for Africans”. The racist practices of European missionaries were opposed by them and they set up their own independent churches. These churches became the school of Pan-Africanism, African Nationalism and modern awareness.22 The South African Native National Congress was formed on 8 January 1912 under the leadership of Pixley S. Ka Isaka Same, John Dube and Sol Plaatje along with chiefs, people’s representative and church organizations and other prominent individuals, though women were only admitted as affiliate members from 1931 and as full members in 1943. The South African Native National Congress was renamed as African National Congress in 1923.23 ANC’s first protest against the 1913 Land Act failed, when Africans were denied the right to buy land outside the Native Reserves or to lease whiteowned land.24 The Ethiopian churches were the first African organization to demonstrate their resistance against colonial injustice. The apartheid system was opposed by the ANC and its allies violently and non-violently. Nelson Mandela, Walter Sisulu, Oliver Tambo, and Desmond Tutu were the leading nationalists who fought for the independence of South Africa. Milestones in the independence struggle include the Congress of Kliptown (where on 26 June 1955 the Freedom Charter was adopted at the congress of the people), the Sharpeville Massacre (21 March 1960), violent political resistance (Umkhonto we Sizwe [or MK]) and the Soweto movement against apartheid, 1976. Mandela was the prime inspiration for every African nationalist.

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International pressure and support compelled apartheid rule to retreat and cleared the path for a democratic South Africa. In January 1989, President Botha suffered a stroke and decided to quit the post of party leadership but he continued as President. Before the replacement of Botha by F.W. de Klerk as President in 1989, the struggle against apartheid entered into a decisive stage. Now the apartheid regime was ready to surrender before the ANC leaders. The process started by Botha and Mandela was expedited and completed by the new president de Klerk. In December 1989, President de Klerk shocked the National Parliament with his historic speech. He stated: the government will accord the process of negotiation the highest priority. The aim is a totally new and just constitutional dispensation in which every inhabitant will enjoy equal rights, treatment and opportunity in every sphere of Endeavour – constitutional, social and economic. I hope that this new parliament will play a constructive part in both the prelude to negotiations and the negotiating process itself.

The ANC, the South African Communist Party and other political parties were unbanned. The NP and the ANC set about negotiating the conditions under which political rights for all South Africans could be entertained whilst ensuring the minorities’ rights.

Democratic South Africa: The Convention and Constitution for Human Rights In July 1991, Mandela was elected as the President of the ANC. A multiparty conference called the Convention for a Democratic South Africa (CODESA) set forth the process of drafting a new constitution on 20 December 1991. On 17 March 1992, de Klerk called a referendum of white voters, based on the question: “Do you support constitution of reform process which the state President began on February 2, 1990, and which is aimed at a new Constitution through negotiation?” It was the last white-only referendum and the “Yes” vote won by an impressive 68.6 per cent. After that de Klerk proposed a two-phase transition to CODESA. The first phase was managed by transitional councils appointed by CODESA, which was a more exclusive group as all political parties were invited to participate. The Pan African Congress and Inkatha remained

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outside the negotiations, complaining that there was a secret compact between the ANC and the NP.25 The CODESA reached an agreement about an interim constitution, in which the NP supported federalism against the ANC’s wish for centralization of power. An independent election commission was appointed and an interim constitution was also accepted by the CODESA. An interim constitution was approved by the tricameral parliament in December 1993. The notion of human rights arose with the holding of the first multiparty, multiracial elections, without fear and privilege, on 27 April 1994.26 As had been expected, the ANC won 252 of the 400 seats in the National Assembly and control of seven provinces. The NP emerged with 20.39 per cent of national vote and control of the Western Cape27 and Inkatha got 10.54 per cent of the votes with control of Kwazulu/Natal. After the election, Nelson Mandela became Africa’s first democratically elected president. On 10 May 1994, the inauguration ceremony of the president was performed in the auspicious presence of more than 130 countries’ representatives. It was the greatest moment for South Africa and human rights.28 After uncountable sacrifices, South Africans achieved their supreme desire and long awaited golden dream of a non-apartheid independent South Africa. The months of April and May 1994 constituted significant milestones in the history of South Africa. The events in these months led to the establishment of a united, non-racist and democratic South Africa. Now it was the prime goal of Mandela as the head of the new government to build an administrative structure for good governance, to develop a multiracial and multicultural democratic nation, which was the first condition for the restoration of human rights. It was the duty of the new post-apartheid regime to initiate reforms in society. Nelson Mandela had the biggest responsibility for national unity and for constructing a harmonious multiracial state. The ANC target fixed on the concept of a Rainbow Nation, a term coined by Anglican archbishop Desmond Tutu. Tutu certainly intended it to be a positive metaphor. The ANC adopted it as an idea of a non-racist, non-sexist democracy. It was very necessary and the new political regime in South Africa needed to build bridges between long segregated communities and to create the sense of attachment of nation-state that had been destroyed by apartheid policies.

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To cross the division between various races was one of Mandela’s biggest challenges.29

Human Rights in South Africa Without the protection of a constitution, human rights are only ideals. With constitutional and legal support, human beings of any society can achieve their human rights in secure manner. After the end of apartheid in 1994, the next objective of Mandela’s regime was to restore human rights constitutionally for the people of South Africa. The Preamble of the new constitution of South Africa in 1996 showed strong dedication and commitment towards human rights: We, the people of South Africa recognise the injustices of our past; . . . believe that South Africa belongs to all who live in it . . . Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.30

The preamble clearly provides equality and dignity with human rights for all South Africans. The Bill of Rights is added in the second chapter of the South African Constitution of 1996. Article 7 states: “(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the right of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) They must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained or referred to in Section 36, or elsewhere in the Bill.”31 Under Article 8, the application of rights is explained: the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. Article 9 focuses on equality: Everyone is equal before the law and has the right to equal protection and benefit. Article 10 talks about human dignity: Everyone has inherent dignity and the right to have their dignity respected and protected. Article 11 emphasizes the right to life whereas Article 12 gives priority to the right to freedom and security. Article 13 of the Constitution states that “Nobody may be subjected to slavery, servitude or forced labour”. Article 14 states: “Everyone has the

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right to privacy”. Article 15 ensures freedom of religion, belief and opinion whereas Article 16 gives everyone the right to freedom of expression. Article 17 states that “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petition”. Article 18 provides everyone the right to freedom of association. Article 19 states that every citizen is free to make political choices, to form a political party. Article 20 maintains that no citizen may be deprived of citizenship. Article 21 gives everyone the right to freedom of movement, to leave the republic, to enter, to remain and to reside anywhere in the republic. Article 22 states that every citizen has the right to choose their trade, occupation or profession freely, whereas Article 23 ensures right to fair labour practices as well as the right to form and join a trade union, to participate in trade union activities, along with the right to strike. Article 24 talks about the right to an environment that is not harmful to their health or well-being. Article 25 makes a provision of property by stating that no one may be deprived of property except in terms of law of general application. Article 26 provides the right to adequate housing while Article 27 ensures everyone the right to healthcare, good water and social security. Article 28 makes detailed provisions for children rights. Article 29 provides for the right to education including adult basic education. Article 30 states that everyone has the right to use the language and to participate in the cultural life of their choice. Article 31 states that members of cultural, religious or linguistic communities may not be denied rights with other members of that community. Article 32 of the Constitution provides right of access to information. Article 33 states that everyone has the right to just administrative action. Article 34 gives equal access to the court of law. Article 36 (sections 1 and 2) highlights the limitations of rights in the Constitution.32

Interpretation of Bill of Rights (Article 39) When interpreting the Bill of Rights, a court, tribunal or forum works: (a) to promote the values that underlie an open and democratic society based on human dignity, equality and freedom (b) to consider international law

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(c) to consider foreign law. Further, with regard to interpreting any legislation, and developing the common law or customary law, every court, tribunal or forum must promote the spirit, purpose and objects of the Bill of Rights. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognized or conferred by common law or legislation to the extent that they are consistent with the Bill.

Enforcement Provision (Article 38) Article 38 provides for the enforcement of rights. Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach the court are (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting in the public interest; and (d) an association acting in the interest of its members.33 The bill of rights shows Mandela’s strong dedication to restore and provide human rights for all in South Africa.

Institutional Infrastructure for Protection of Human Rights Without institutional infrastructure, restoration and protection of human rights is impossible. The responsibility for the promotion, protection and fulfilment of human rights rests on the state (Section 7(2)). For this purpose, the Constitution provides a number of public institutional infrastructures: the Public Protector (section 182), the Human Rights Commission (section 184), the Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities (section 187), the Auditor General (188) and the Electoral Commission (section 190), and an Independent Authority to regulate broadcasting (section 192). All commissions are obliged to table an annual report to the National Assembly (section 181(5)).

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Judiciary, Police and Human Rights Commission Judiciary, the police and the Human Rights Commission are the main instruments for the restoration and implementation of human rights. The independent South African Human Rights Commission is working here wonderfully. Police reforms are also introduced by present democratic regime, although reports and the personal observation of the researcher suggest that the police still need to be more accountable. The judiciary is also the main protector of human rights. Social rights litigations are the main independent weapon for securing human rights. The Grootboom case for the right of children to shelter (section 28), the Treatment Action Campaign case for the right of access to health care (section 27(1), (2)) and the Chinese community case are strong evidence of role of the judiciary in protecting human rights. The Truth and Reconciliation Commission was appointed by Mandela to heal the wounds inflicted by the apartheid system.

Various Programmes and Policies for Human Rights Nelson Mandela, Thabo Mbeki and the present regime are devoted to the restoration of human rights. Under their leadership, various programmes and policies have been introduced. (a) Reforms Without change in the apartheid system, the restoration of human rights was impossible. Reforms were introduced in the ruling system by the Mandela regime to make the administrative system impartial, accountable and transparent. To reform the police, the South African Police Act 1995 was passed and implemented. Criminal laws, labour and land laws were reformed by the new regime to make the environment suitable for a nonracist and democratic South Africa. (b) Women’s Rights and Gender Equality The equal socio-economic status of women and gender equality is the first need for human rights in any society. The present South Africa has achieved a lot, but a lot is yet to be achieved. A new wave of women’s empowerment was started in every segment of government under the new constitutional and legal provisions. But women’s conditions have not

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changed enough even after new legal provisions. Their human rights are not safe in the post-apartheid regime. Schoolgirls and working women are sexually harassed, although the government is providing equal opportunity for them to enjoy their rights. (c) The Right to Food (Article 27) and Food Parcel Programme It is estimated that 35 per cent of the population of South Africa is vulnerable to food insecurity and approximately 25 per cent of children under the age of six are estimated to have suffered from malnutrition. To solve starvation and malnutrition, the National Department of Agriculture’s Integrated Food Security Strategy (IFSS) was adopted in 2002. Its aim was to provide safe, sufficient and nutritious food for all South Africans so as to meet their dietary needs. The main goal of the IFSS is to eradicate hunger, malnutrition and food insecurity by 2015. A Food Parcels Programme was also started by the department of agriculture. (d) The State Maintenance Grants Scheme for Low Income Parents Until 1997, low income single parents were eligible for State Maintenance Grants. The grant paid a basic R430 per month to a family of two children. Thus, a single mother with two children could receive as much as R700 per month. The grant would be subject to maximum income of R800 per month. (e) The Reconstruction and Development Programme (RDP) The Mandela government came to power in serious economic and fiscal conditions in 1994. The RDP white paper presented to Parliament in 1994 identified economic, social, legal, political, moral, cultural and environmental problems that the country was facing. To move towards the alleviation of these sizable difficulties, it was decided that a completely new macro- and socio-economic framework was required: “a programme is required that achieves sustainable development and meets the objectives of freedom and an improved standard of living and quality of life for all South Africans within a peaceful and stable society characterized by equitable economic growth”. The RDP proved another milestone for restoration of human rights in South Africa. Through this programme, the post-Apartheid regime

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achieved (a) housing, (b) clean drinking water, (c) electricity supply, (d) land reforms, (e) acces to health care and (f) other public welfare works and social security programmes. But a lot is yet to be achieved. (f) The Black Economic Empowerment Programme (BEE) The Black Economic Empowerment (BEE) was initiated in 2003 for the improvement of South Africa’s poor black community. The initiative sought to generate job opportunities for black South Africans; major companies such as Telkom gave preference to black run suppliers for their purchases. A quota system was also enforced to achieve “employment equity”, requiring that 80 per cent of a company’s workforce should be black, 54 per cent female and 5 per cent nature-friendly. A new programme for Growth, Employment, and Redistribution Strategy (GEAR) was brought in 1996, in place of RDP for the welfare of all Africans. (g) Education Every South African has equal opportunity to access education without any kind of discrimination.

Conclusion The present regime of South Africa is facing numerous challenges to human rights. Major challenges are the high crime rate, crime against women and children, the HIV/AIDS problem, poverty and unemployment, corruption, and xenophobia. The constitution has provided human rights for every citizen of South Africa and democratic institutions are working in a satisfactory manner, but the present political system is finding it difficult to maintain racial harmony and sustainable growth for all. The judiciary, the South African Human Rights Commission, and other constitutional bodies are working tremendously hard to protect human rights, but law and order agencies have failed to prove themselves as real guardians for the protection of people’s human rights. Especially, intolerance in politics, police brutality and adverse conditions in jails are challenges for human rights in the country. Constitutional, legal provisions and institutional infrastructure are enough in South Africa. The present status of human rights in South Africa is not very satisfactory, though it is not worse either. The problems of

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HIV/AIDS, poverty, unemployment and high crime rate have proved daunting challenges to the post-apartheid leadership. At this time, the poverty rate is around 45 to 50 per cent, the unemployment rate is around 28 per cent and the crime rate continues to be very high. Johannesburg has become the “crime hub”, there is an AIDS/HIV epidemic, there is a lack of food for all, prices and inflation are sky high price and corruption continues to affect human rights. Notwithstanding these challenges, it is a matter of satisfaction that the judiciary, the media and public trust in democratic values and constitutional provisions are positive helping hands for South Africa. Its leadership and citizens are quite capable of achieving and sustaining their human rights. After Nelson Mandela and Mbeki, now it is the responsibility of Zuma to solve these problems to secure people’s human rights with the help of good governance and devotion to democratic values so as to take the country to the path of a real “South African rainbow” in the twenty-first century.

Notes and References 1

http://www.wisegeek.com/who_is_Nelson_Mandela.htm. http://en.wikiquote.org/wiki/Nelson_Mandela. 3 Nelson Mandela’s Ideas on Human Rights, Inaugural Speech, Cape Town, 9 May, 1994. 4 Ibid. 5 http://en.wikiquote.org/wiki/Nelson Mandela. 6 Winston, Morton (2001). “Apartheid”, in James R. Lewis and Carl Skutsch (ed.), The Human Rights Encyclopaedia, Vol. 2. Sharpe Reference, p. 613. 7 Frankental, Sally and Sichone, Owen B. (2005). South Africa’s Diverse People, California: ABC-CLIO, p. 93. 8 http://www.apartheidmuseum.org/index_flash.html. 9 http://africanhistory.about.com/library/apartheidlaws/g/No.21 of 23.htm. 10 http://africanhistoryabout.com/od/apartheidlaws/g/no.27 of 13. 11 Nugent, Paul (2004). Africa since Independence: A Contemporary History, New York: Palgrave Macmillan, p.132. 12 Frankental, Sally and Sichone, Owen B. (2005). South Africa’s Diverse People, California: ABC-CLIO, pp.115–116. 13 Winston, Morton. “Apartheid”, in J.R. Lewis, (ed.), The Human Rights Encyclopaedia, Vol. 2, 614–15. 14 Boberg, P.Q.R. (1977). The Law of Persons and the Family, Cape Town: Tata, p. 99. 15 Frankental, Sally and Sichone, Owen B. (2005). South Africa’s Diverse People, California: ABC-CLIO, p. 128. 2

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Ibid. 125. http://africanhistory.about.com/library/bl/blsalaws.htm. 18 Frankental, Sally and Sichone, Owen B. (2005). South Africa’s Diverse People, California: ABC-CLIO, pp. 123–124. 19 Bell, Terry and Ntsebeza, Dumisa (2001). Unfinished Business: South Africa Apartheid and Truth, Muizenberg: Redworks, p. 107. 20 Beck, Roger B. (2000). The History of South Africa, Westport, Conn.: Greenwood Press, pp. 101–115. 21 http://en.wikipedia.org/wiki/bantustan. 22 Frankental, Sally and Sichone, Owen B. (2005). South Africa’s Diverse People, California: ABC-CLIO, pp.101–102. 23 http://en.wikipedia.org/wiki/African_National_Congress. 24 Saunders, Christopher (2007). South Africa: Recent History, London: Routledge, p. 1088. 25 Frankental, Sally and Sichone, Owen B. (2005). South Africa’s Diverse People, California: ABC-CLIO, p. 207. 26 Ibid. 207–208. 27 Nugent, Paul (2004). Africa since Independence: A Contemporary History, New York: Palgrave Macmillan, p. 431. 28 Frankental, Sally and Sichone, Owen B. (2005). South Africa’s Diverse People, California: ABC-CLIO, p. 242. 29 Ibid. 247–248. 30 The Constitution of Republic of South Africa, Act 108 of 1996. 31 Robertson, David (2004). A Directory of Human Rights, London & New York: Europa Publications, p. 333. 32 Ibid. 333–342. 33 Ibid. 343–346. 17

CHAPTER SIXTEEN IS THE COURT OF JUSTICE OF THE EUROPEAN UNION BECOMING A GUARDIAN OF FOREIGNERS’ RIGHTS IN EUROPE? ALIX LOUBEYRE

Abstract Every year, foreigners flock to the gates of Europe, fantasized as a land of prosperity and freedom. However, the reality that they face is far from enviable. The superposition of legal institutions and judicial systems protecting fundamental rights complicate the study of migrants’ protection in Europe. The migration laws of Member States are varied, more or less restrictive, and European harmonisation, although affirmed, is still far from being achieved. In the face of violations of fundamental rights of migrants in Europe, the application of European migration law both under national and European jurisdictions has given way to a more protective regime, supplementing the protection granted by the European Court of Human Rights (ECHR). EU judges were sidelined for a long time, having very limited jurisdiction on migration-related issues. The purpose of this paper is to explain how the extension of the competences of European Court of Justice (ECJ) in the Area of Freedom, Security and Justice (AFSJ), following the coming into force of the Lisbon Treaty, could be a major improvement for foreigners’ fundamental rights protection. After describing the main institutional and procedural changes allowing the ECJ to become a force for migrants’ rights protection, this article will present an inventory of existing ECJ case law in the field. The Court is in the process of becoming a guardian of foreigners’ fundamental rights in Europe.

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Introduction The Court of Justice of the European Union monitors the legality of the acts of the Union and ensures the uniform interpretation and application of the law of the Union. The issue of the role of the Court in protecting the fundamental rights of foreigners in Europe is important in view of the new competences given to the Court with the Lisbon Treaty coming into force and the increasing “Europeanization” of migration policy in the Union. While the national courts and the European Court of Human Rights have traditionally ensured the protection of foreigners’ fundamental rights in Europe, the European Union judges are being made aware of cases relating to foreigners. This paper is an attempt to focus on the Court’s contribution to the protection of foreigners’ fundamental rights in Europe, in light of the evolution of its competences and the judgments already passed. Legislation on foreigners1 covers the rules of entry, residence and expulsion of foreigners. Granting access and regulating the residence of foreigners is a traditionally sovereign jurisdiction and, very often, politically sensitive. Since by definition they are not citizens of the state in which they live, foreigners do not have the same rights as “nationals”. However, a certain number of international, European and national instruments provide foreigners with rights, such as the right to asylum and the principle of nonrefoulement, or protection. Within the European Union context, the abolition of internal borders allowing free movement within the “Schengen zone” and the joint management of external borders brought about a definition of common rules in terms of migration, which led to the progressive development of a European law relating to foreigners. Cooperation on asylum and immigration matters in Europe started as intergovernmental cooperation. In the Maastricht Treaty, the asylum policy, the rules regulating the crossing of the external borders of the European Union, the immigration policy and policy regarding nationals of third countries were areas of common interest and then were included in the Community’s field of competence with the Amsterdam Treaty adopted in 1997.2 However, while the role of the European Union was reinforced over migration, Member States were still reluctant to grant it as vast a power as

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it has in the area of single market policy. These areas’ sensitivity explain why the decision process was specific, why the Member States were still in control of this process, and also explain the strict limitations of the Court’s jurisdiction in the former title IV of the Treaty on the European Community.3 With the adoption of the Lisbon Treaty, chapter 2 of title V of the new Treaty on the Functioning of the European Union (TFEU), entitled “Policies on Border Checks, Asylum and Immigration” now sets the goal of “developing a common policy”4 in this area, the final step to European integration. The decision process is not specific any more, and ordinary legislative procedure is now the norm. Finally, the Court of Justice’s jurisdiction is not limited any more, which allows European Union judges to monitor the legality of the acts of the Union in terms of migration and how the Member States apply them. European Union judges are guardians of the law of the Union; in the 1970s, the Court established that fundamental rights are a part of Union law as general principles of law.5 This greatly reinforced the protection standards of fundamental rights in the Union, even before these principles were written into the treaties6 and the “constitutionalisation” of the Charter of Fundamental Rights by the Lisbon Treaty.7 Since migration policy has been recognized as common policy and the Union is a community of law based on the respect of fundamental rights,8 the Union judge must ensure respect by the institutions and Member States of foreigners’ fundamental rights in keeping with the definition and application of the Union law. This paper seeks to see how the Court of Justice becomes a new actor in protecting the rights of foreigners in Europe pursuant to the allocation of new competences and new jurisdictional instruments (I). It then analyses the case law balance of the Court, which is encouraging in spite of a limited number of judgments (II).

I. Extending the Court of Justice’s Competences and Powers in Relation to Migration Law Since the Lisbon treaty came into force, the European Union Court of Justice’s competence in migration law has been considerably extended, in addition to the creation of the urgent preliminary procedure, which allows the European Union judge to offer foreigners the protection of the law (A). Moreover, the binding aspect of the Charter of Fundamental Rights of

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the European Union, also inscribed in the Lisbon treaty, allows the Court a new major tool to protect the fundamental rights of a person (B). A. Expanding the Review Procedures, Guaranteeing a Better Judicial Protection of Foreigners It is only with the entry into force of the Lisbon treaty on 1 December 2009 that the European Court of Justice (ECJ) has a general jurisdiction in the Area of Freedom, Security and Justice (AFSJ), bringing it in line with the other European domains. The specificity of the areas covered by the AFSJ, from migration policy to police and judicial cooperation in criminal matters, explained the reluctance of the Member States who had given the Court of Justice a limited or non-existent mandate in these fields. This explains why the ECJ case law relating to AFSJ in general, and to visas, asylum and immigration in particular, is so limited. (i) Reference for a Preliminary Ruling The Lisbon treaty first signifies the end of the special rules of the former article 68 TCE9 which only allowed a court pronouncing a final decision to request a preliminary ruling by the ECJ to assess the validity or interpret a domestic legal rule in the field of visas, asylum and immigration. Because the decisions of the Court have an erga omnes effect, and are binding on all Member States, the reference for a preliminary ruling is the preferred instrument to ensure uniform interpretation of European rules and to review the conformity of national measures transposing secondary legislation of the European Union. By extending the Court’s jurisdiction to examine the requests for a preliminary ruling submitted by all the courts of the Member States, the ECJ now has a broader jurisdictional control, especially since the lower courts are the source of many more references than the Supreme Courts.10 Suppressing the restrictions of the former article 68 TCE should then allow for more “judges’ dialogue” on migration issues and for a more efficient protection of foreigners’ rights in Europe. Moreover, according to the new article 267 TFEU, the Court of Justice is now competent to give out preliminary rulings on “the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union” with no restrictions, which may have important consequences, as the paper will try to describe later.

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The last paragraph of this article specifies that “if such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay”. This final provision gives a legal basis to the Court to decide that references for preliminary ruling regarding a person detained have to be dealt with under an urgent procedure. Since foreigners often face detention, the ECJ is now able to examine with expediency whether Member States are applying European law relating to foreigners effectively and uniformly, with due respect to fundamental rights. (ii) Proceedings for Annulment The Lisbon treaty has also expanded the proceedings for annulment. First, a natural or legal person can now file proceedings for annulments against regulatory decisions which concern them directly and have no implementing measures. Article 263§4 of the TFEU now provides : Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

The notion of “regulatory act” is however unclear, and the Lisbon treaty does not define it. It is difficult to assess the scope of the opening of proceedings for annulment of ordinary claimants against a “regulatory act which is of direct concern to them and does not entail implementing measures”. Depending on the interpretation used by the Court, especially of the nature of a “regulatory act”,11 this disposition could have important consequences for the jurisdictional supervision of acts taken in the frame of the AFSJ and incidentally, for the protection of fundamental rights. Moreover, the Court can now monitor the acts of “bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties”. These monitoring powers stem not only from the preliminary ruling, as stated above, but also from the framework of proceedings for annulment, proceedings for failure to act12 or the objection of illegality.13

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This means that the European Union judge will henceforth be able to monitor the acts of the Union agencies, which in the area of migration policy are entrusted with numerous allocations which can potentially infringe on the fundamental rights of foreigners. The FRONTEX agency14 is a prime example; its involvement in organizing charter flights to return foreigners who have been evicted from European soil and its involvement in operations to secure the borders and control on the high seas have raised many questions linked to migrants’ fundamental rights and indicate that jurisdictional monitoring is necessary. (iii) Urgent Preliminary Ruling Finally, the Court also has a new possible judicial remedy in the urgent preliminary ruling procedure. Under article 104b of Rules the Court and 23 bis of the statute of the Court of Justice, applicable since 1 March 2008,15 new power allows the Court to deal with issues related to the Area of Freedom, Security and Justice in a considerably shorter time.16 It is different from the accelerated procedure (which must follow all the stages of the classical procedure in a more timely manner) by its greatly simplified procedure formalities (limited written procedure, electronic communication, no translation into all the official languages). The urgent preliminary ruling procedure can be requested by the Court or exceptionally by the President of the Court who can suggest that such a procedure should be applied. The cases which could be considered in urgent preliminary ruling procedure are referred to a chamber of 5 judges which have been specifically appointed for this task. This new course of action has a major impact on the protection of fundamental rights, especially the rights of foreigners, since it can only be implemented in cases where the person is held in custody17 and where their release depends on the interpretation of the European Union judge. It therefore helps in reinforcing the jurisdictional protection of foreigners, by allowing the national and European judges to carry out an accelerated dialogue so that a decision can be reached within a reasonable deadline. Custody is a continued issue of monitoring the stay of foreigners in Europe which is the source of long disputes, and thus a few of the major judgments taken by the CJEU about migration issues have been decided

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under urgent preliminary ruling procedures. Along with the extension of competences in the AFSJ issues, the urgent preliminary ruling procedure provides the Court with the possibility of effectively becoming a guardian of the foreigners’ rights in Europe. B. The Charter of Fundamental Rights, a New Tool for the European Union Judge The Charter of Fundamental Rights of the European Union, adopted in Nice in December 2000 was given the same binding force as the treaties by the Lisbon treaty, as provided for in article 6§1 of the European Union Treaty. The Charter was first created to codify and gather the fundamental rights in force in the European Union, which comprise the rights listed in the European Convention on Human Rights, those that are the consequence of “common constitutional traditions” of the Member States and international instruments which all Member States have ratified, as well as the case law of the Court of Luxemburg in this area. The text’s stated goal was to improve the visibility of fundamental rights in the Union. The Charter sanctions civil and political rights as well as economic and social rights, with a universal scope, since only 4 articles out of 50 reserve their benefits to European citizens. Its applicability to foreigners present on European soil is therefore vested. The European institutions must respect the Charter when drawing up and applying the European Union law, and so of the Member States when they implement18 European Union law. The Court of Justice has jurisdiction to monitor this respect according to the mandate given by article 19 TEU,19 as stated by article 51.1 of the Charter. Thus, the question of the scope of European Union law, by conditioning the application of the Charter (and more specifically the monitoring carried out by the European Union judge of the Member States conforming to the Charter when applying European law) becomes highly sensitive. Queries on the scope of EU law have been notably raised because, as Douglas-Scott explained, the official explanations seem to go further than article 51(1) by standing instead that ‘the Charter is only binding on member States when they act in

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Also, the fact that all the texts of secondary legislation which comprise the body of European law in migration policy have “Charter-recitals” and other dispositions referring to the Charter should lead the European Union judge to systematically monitor the application of secondary legislation in terms of fundamental rights. The new justiciability of the Charter thus allows one to “confirm the anchoring of the Union in the European space of fundamental rights”.21 Moreover, the Charter and its explanations22 refer to multiple sources such as the Geneva Convention of 1951 or the Convention on the Rights of the Child, which allows it to expand the array of instruments available to the European judge, who has henceforth become one of its interpreters. Thus the inclusion of the article 18 right to asylum23 allows the European Union judge to interpret and apply the Geneva Convention dispositions regarding refugees,24 even if the Union is not a part of the Convention. While this reference also exists in the TFEU in article 78§1, including it in the Charter highlights a major symbolic difference from the ECHR, the critical European tool for protecting fundamental rights, which does not refer to it and can only protect foreigners looking for international protection through its general provisions, the first of which are the prohibition of torture and inhuman or degrading treatments (article 3 ECHR) or the right to respect for private and family life (article 8 ECHR). In spite of the repeated statement that the Charter is only a codification on the basis of established law of the fundamental rights guaranteed in the European Union legal system, and that it in no way extends the Union’s jurisdiction,25 the justiciability and newly binding force of the Charter have an impact and could have a major influence on the protection of foreigners’ human rights in Europe.

II. The Contrasting Record of the ECJ Case Law for Migration If limiting the Court’s jurisdiction in the migration area is, as we saw in the first part, the source of the limited number of judgments passed in this area (A), the extension of its competences allowed it to pass judgments on some major aspects of the asylum system or Union immigration and to

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become an agent of the protection of foreigners’ rights in Europe (B). A. Case Law in Limited Numbers Law relating to foreigners, approached from texts of secondary legislation about asylum and immigration, could be a privileged area for the protection of fundamental rights of foreigners by the judge of the EU. Indeed, the unclear writing, the uncertain normative content which characterizes many texts shaping the “acquis” in terms of migration26 provides the judge with a great margin of appreciation. The judge’s power to contribute in creating law varies in precision according to the norm to be interpreted; the Luxemburg judge therefore sometimes has the power (or even the duty) to define the content of Member States’ obligations. However, the case law record of the ECJ in matters of migration is very limited: (i) Judgments given for Failure to Perform Obligations While many proceedings for failure to perform obligations have been brought by the Commission, only about twenty of them have led to a decision for failure to transpose within the prescribed period.27 A single judgment was given for failure to perform obligations carried on a bad transposition, in this case a decision from the Netherlands28 claiming that the fees charged to issue a long term residence permit was a barrier to the exercise of the rights given by directive 2003/109.29 One should question here the ambivalent role of the Commission which regularly publishes highly critical reports on the transposition and application of secondary European legislation in terms of migration policy but does not exercise the power provided in article 258 of the TFEU to bring an action against the Member State who badly transpose the secondary legislation, for example in a manner which is not compatible with fundamental rights.30 The MSS c/ Belgium and Greece decision31 is revealing: it was not until the ECHR intervened and condemned Belgium and Greece for violating the fundamental rights of an Afghan asylum seeker pursuant to the systematic application of the Dublin II regulation that the Member States remembered they were bound to apply Union law in the respect of fundamental rights. This dysfunction in monitoring the application of the body of European law in asylum matters and in conformity with fundamental rights is here obvious. Under articles 17 TEU and 258 TFEU,32 the Commission could play a

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major role in protecting foreigners’ fundamental rights in the Union. But the Court of Justice’s ability to intervene in this area is in part conditional upon a more affirmative action of the Commission. The programmed accession of the Union to the ECHR could however bring it more often to exercise its discretionary power to initiate infringement proceedings. (ii) Proceedings for Annulment Moreover, the visa, asylum and immigration part also led to seven judgments in proceedings for annulment, three of which specifically covered the United Kingdom’s participation in the development of the Schengen “acquis”. Three others are concerned with the Commission’s execution jurisdiction within the CISA,33 the family reunification directive34 and the establishment of the lists of safe countries within the “Proceedings” directive.35 The last case judged by the Court in early September 2012 dealt with a request for annulment of the Council’s decision 2010/252/EU, of 26 April 2010, which aims to complete the Schengen border code (SBC) in respect of external sea border control.36 The Court accepted the request of the European Parliament because “the adoption of such rules constitutes a major development in the SBC system” and because “the powers conferred (to the border guards) in the contested decision, … mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required”.37 (iii) Reference for a Preliminary Ruling Finally, the very limited competence to give preliminary ruling that the Court had in the area of AFSJ before December 2009 and the relatively recent transposition of most of the asylum and immigration policies is the source of the “preliminary ruling deficit”38 which can be seen in migration policy, but, as we have described it previously, the AFSJ area is undergoing standardization and the increasing jurisdictional monitoring of measures relating to visas, asylum and immigration is an example of this. Only 20 judgments have been given on preliminary rulings in the areas of visas, asylum and immigration.39 Among those, seven were decided before the extension of the preliminary ruling by the Lisbon treaty and three judgments were the result of an urgent preliminary ruling procedure.40 Of the 13 judgments given since December 2009, 4 were referred by a judge of final resort and 9 by first instance or appeal judges. Of the 29 cases currently pending before the Court, 12 were referred by a court

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whose decision are not subject to appeal, and 17 by first instance or appeal courts. These statistics show that even if in the visa, asylum and, immigration area the intervention of a European Union judge is limited; it is growing strongly, along with the standardization of jurisdictions and procedures in the AFSJ area. By analysing the existing case law, we can try to assess the contribution of the European Union judge to the protection of foreigners’ fundamental rights in Europe. B. ECJ Case Law Contributing to Protect Foreigners’ Rights in Europe Thanks to the extension of the preliminary ruling and the binding scope of the Charter of Fundamental Rights, the European Union judge was for example able to clarify many provisions of secondary legislation in terms of asylum, to limit the appreciation margins of the Member States in terms of family reunification or to provide a framework for the criminalisation of unauthorized residence by the Member States. Therefore, while the numerical record of the ECJ case law on migration is limited, it is characterized by a few major contributions, which we will endeavour to describe and which will allow us to assert that the European Union judge is henceforth an agent in the protection of foreigners’ fundamental rights in the Union. (i) Asylum The Elgafaji41 judgment of 17 February 2009 referred to the interpretation of article 15c) of the “Qualification”42 directive. The result of long negotiations in the Council, this article is very ambiguous and refers to the conditions which a person must fulfil to benefit from subsidiary protection, in which “serious harm” consists of: c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

The Court logically asked how to interpret this provision since the concept of “serious and individual threat” seemed hard to reconcile with that of

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“indiscriminate violence”. It also inquired if this article offered wider protection than article 3 of the ECHR. After reasserting the autonomy of the European Union judge in interpreting Union law43 and stating that the scope of article 15c) is broader than that of article 3 ECHR, the Court decided that the subsidiary protection should be granted when the level of violence during an armed conflict reach such a level that the claimant’s mere presence on the soil would mean being genuinely at risk of suffering from serious threats to his life or his person.44 The Court gave article 15 c) effectiveness and expanded the scope of subsidiary protection. It also suggested a method of assessment of “serious harm” in the case of the subsidiary protection of article 15c).45 The higher the risks of serious harm that the claimant is specifically and personally suffering from, the lower the required level of indiscriminate violence required, or conversely, the more indiscriminate the violence, the less the claimant will have to prove the threats concern him specifically and individually. Therefore, the Court carried out in this judgment its traditional mission of interpreting Union law. While doing this, it also broadened the scope of subsidiary protection which would henceforth be granted to claimants coming from a country in which the level of indiscriminate violence characterises the serious harm. This solution allows Lenaerts to state that the Elgafaji case “is the first important contribution of the ECJ to buildingup the EU acquis in the field of asylum”.46 Following this judgment, the EU Court of Justice became a direct interpreter of the Geneva Convention of 195147 in the Bolbol judgment of June 2010.48 In asserting that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees,49 the Court turns European secondary legislation into law enforcing the Convention. In this judgment, the Court gives an interpretation of article 1§D of the Geneva Convention of 1951 by relying on the “plain meaning” rule, even though this provision is interpreted in widely diverging ways by the Member States. It asserts that only the Palestinians who received the help of the UNRWA50 automatically benefit of the status of refugee, the others

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can however see their claim examined as any other asylum seeker. The Court also clarified the conditions of cessation51 and exclusion52 of the status of refugee. In these cases, the European Union judge re-stated the need to examine in concreto the situation of asylum seekers, in terms of change circumstances in the country of origin which could justify withdrawing refugee status as well as knowing what exact role in the organisation was held by a person accused of terrorist activity, which could be a cause for exclusion from the refugee status. The Court reasserted that in these cases the interpretation of the asylum directives was encompassed by the Geneva Convention. Finally the NS judgment of December 2011 is incredibly important.53 This judgment was given in pursuant to a resounding judgment of the ECHR, MSS c/ Belgium and Greece54 of 21 January 2011 in which the Court condemned Greece as well as Belgium for violating the articles 2, 3 and 13 of the Convention, by applying the European regulation Dublin II55 which aims to determine the Member State responsible for an asylum application. The ECJ then had to judge the question of the compatibility of the implementation of the Dublin regulation with the duty to respect the fundamental rights binding on Member States, following two preliminary issues referred by the Courts of England and Ireland concerning, once again, the return of asylum seekers to Greece. Pursuant to article 4 of the Charter of Fundamental Rights of the European Union, the Court asserted that it is the responsibility of the Member States not to transfer an asylum seeker to a Member State which would be responsible within the meaning of the Dublin regulation: Member States, including the national courts, may not transfer an asylum seeker to the “Member State responsible” within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.56

The Court asserted that the presumption according to which all the Member States respect foreigners’ fundamental rights when examining their application for asylum, an inference which underpins the European common asylum system, is rebuttable and the Court thus acknowledges

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the primacy of the guarantee of fundamental rights in European law relating to foreigners. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.

The Member States must thus ascertain in concreto that the examination of an asylum application by another Member State will not violate the foreigner’s fundamental rights, which means that the Member States have a genuine duty to stay informed of the proper functioning of the asylum system in other Member States. The Court thus takes up the essence of the ECHR judgment establishing a flaw in the Dublin system. It however avoids outright criticism of the Dublin II regulation by not condemning the text itself but its systematic application, since there is a “sovereignty clause”57 in the regulation which allows for the mechanism’s application to be suspended in a discretionary manner, especially for humanitarian reasons. This clause must therefore be used by the states to suspend the return of foreigners to the Member State responsible for the examination of the application for asylum if they cannot doubt there is a serious risk of fundamental rights violation. By doing so, the Court therefore extends a classic solution of its case law according to which Member States cannot rely on an interpretation of a secondary legislation text which would violate the fundamental rights protected by the Union’s legal system.58 The Court also decided that using the discretionary power left to the Member States by the sovereignty clause of article 3.2 is an act of implementation of the Dublin regulation which therefore must respect the Charter of Fundamental Rights of the European Union. Such a decision broadens the scope of European law and therefore of the Charter; the Court may from now on monitor Member States to ascertain that they respect the fundamental rights when they have discretionary powers in the application of European law.59 (ii) Immigration It was first about the family reunification directive60 that the Court gave out a judgment on a preliminary ruling on immigration.61 It specified

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during an annulment procedure carried out by the European Parliament against this text62 a few years before that the margin for manoeuvre left by the directive to the Member States should be strictly interpreted and would be under its control, especially concerning the fundamental right to private and family life.63 The Chakroun case of March 2011 allows the Court to carry out this control of the margin for manoeuvre given to the member-states with respect to family reunification. A Dutch court questioned the compatibility of the legislation stemming from the transposition of directive 2003/86 in the Netherlands, according to which the authorization of family reunification was subject to a mandatory minimal threshold of income. The European Union judge answered that the authorisation of family reunification is the general rule, and that if the sufficient income conditions can help frame this, the margin for manoeuvre given to the Member States in this area does not divest the directive of its effectiveness. The Court also reasserted that each request must undergo a concrete and individual examination, the only way to ensure the protection of the foreigners’ family fundamental rights. Therefore, setting a mandatory threshold of minimum income, which is different for couples married before or after entering European soil, undermines the goal of the directive which aims to “promote family reunification”.64 The restrictive framework of the Member States’ margin of manoeuvre with respect to family reunification allows the European Union judge to ensure wider protection than that given by the ECHR, which refuses until now to acknowledge subjective right to family reunification.65 Moreover, the highly controversial return directive66 already was the source of three judgments on preliminary ruling. After having specified the calculation of the maximum time in custody in a Kadzoev judgment,67 the Court of Justice then had to give a judgment on the compatibility of the criminalization of the unauthorized stay with the Return directive. When an Italian court68 brought the case to the European Court, the Court asserted that: the Directive 2008/115, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national

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Following the El Dridi judgment, the Court of Appeals of Paris,70 questioning the compatibility of the police custody with the Return directive, then brought the case to the Court of Justice of the European Union, which asserted that this measure during the return procedure was “clearly”71 against the goal of removal stated by the directive. Therefore, while criminal law is still under the jurisdiction of Member States, which can thus provide for criminal sanctions for foreigners in an illegal situation, the Member States must however develop their legislation to ensure the respect of Union law, in the name of the principle of primacy and effectiveness of the law of the Union and the principle of loyal cooperation. The Court also reminded them that the directive must be interpreted in line with the ECHR case law, especially in the need for the custody to be proportional and not exceed a necessary delay to attain the goal pursued.72 The custody of undocumented migrants must be strictly monitored to protect their fundamental rights. Therefore the directive organized the gradation of steps in the return procedure, during which custody is only possible if the return procedure is under way and its execution is compromised by the behaviour of the person concerned. The Court controls the respect of the return procedure by the Member States but stated that its directive is not opposed to a criminal sanction of imprisonment when a return procedure has failed.73 (iii) Visa and Border Controls Few judgments have been given by the ECJ in the visa or border controls fields, while their implication for fundamental rights of migrants were limited. Most of the judgments were related to the duty of Member States with regard to internal border controls74 or duty to deport irregular migrants.75 However, a reference for a preliminary ruling, submitted by a Latvian Court which is now pending,76 could lead the Court to clarify the scope of the right to an effective remedy, which is article 4777 of the Charter and a general principle of EU law, denying entry into the EU country.

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Conclusion Extending the competences and powers of the European Union Court of Justice on issues of asylum, immigration and border control assists in correcting what Peers was right to call in 2007 “a disgraceful anomaly”.78 Indeed, from now on, the European Union judge has the means to ensure both the uniform interpretation and the effective judicial supervision of the legality of the acts of the Institutions and Member States in migration matters. The disappearance of the power restrictions of the European judge in migration issues helps to reinforce the dialogue between the national judge and the European judge and thus increases the judicial protection of foreigners. The growing involvement of the Court is also essential for a true “common migration policy” to exist, in which the respect of fundamental rights is becoming a “unifying factor”.79 The Court is, therefore, helping increase the norms of protection when Member States apply European law relating to foreigners, which would compensate for the shortcomings of the texts adopted until now on migration.80 It was also necessary to see progress in guaranteeing the respect of foreigners’ fundamental rights when Member States apply European law, in a time when European Union accession negotiations are carried out at the ECHR.81 Since the Strasbourg case law is truly the “backbone of European law on asylum and immigration”,82 European Union accession to the ECHR should also incorporate a judicial supervision ensuring the protection of fundamental rights which has to be at least identical to the norms developed by the European Court of Human Rights. While it is true that the limited precedence of the Court does not allow us to precisely assess the added value of the protection offered by the Court to foreigners present in the European Union, its first interventions in migration matters do promote a “kind of judicial hope”83 and enables us to assert that the Court is indeed becoming a guardian of foreigners’ fundamental rights in Europe. However, major improvements in protecting foreigners’ rights will also depend on the reform process of EU secondary legislation, which “urgently needs to translate the Court rulings into collective, institutionnal commitments”.84

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The extent of the protection that will be given to foreigners is a major stake in the European Union’s credibility as an organization based on the respect of fundamental rights; and this will undoubtedly lead to many commentaries in the years to come.

Notes and References 1

Within the European Union, the term foreigner refers to non-citizens of one of the 27 Member States of the EU (Definition a contrario, ex-article 8§1 of the Treaty on European Union, Maastricht version: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship”). 2 The Amsterdam Treaty had integrated migration questions into the “first Pillar”, meaning that the Community method was mostly applied to this subject (the Union’s usual method of decision-making, applied for example for internal market questions); whereas judicial cooperation in civil and criminal matters stayed in the “third Pillar”, constituting Title VI of the TEU, Amsterdam version, and followed the “intergovernmental method” (the traditional method of international cooperation). 3 The former Article 68 Treaty on the European Community: “1. Article 234 shall apply to this Title under the following circumstances and conditions: where a question on the interpretation of this Title or on the validity or interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. 2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.” 4 Article 67§2 TFEU. 5 ECJ, Internationale Handelsgesellschaft, 17 December 1970, 11-70, and ECJ Nold 11 January 1977, 4-73. 6 Article 6 TEU, Maastricht version Article 6: “1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.” 7 It acknowledges that the Charter has the same binding force as the treaties: Article 6.1 TEU, (Lisbon version): “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7

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December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.” 8 Article 2 of the Treaty on European Union: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 9 The former Article 68 : « 1. Article 234 shall apply to this Title under the following circumstances and conditions: where a question on the interpretation of this Title or on the validity or interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. “2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.” 10 Annual Report 2011, Statistics of Judicial Activity of the Court of Justice, p.30, http://curia.europa.eu/jcms/jcms/P_88222/ 11 On that question and its potential implications for jurisdictional control of legislative acts see D. SIMON (dir.), C. SOULARD, A. RIGAUX, R. MUNOZ Contentieux de l’union Européenne/3, Lamy Droit 2011, p. 127–130; K. LENAERTS, le traité de Lisbonne et la protection juridictionnelle des particuliers, Cahiers de droit européen 2009, n°5-6, p.723 and O. De SCHUTTER, Les droits fondamentaux dans l’Union Européenne, Journal de Droit Européen, 2008 p.126. (The author develops an “alternative interpretation” of the notion of “regulatory act” understood as “a measure of general application”. Although this idea is a bit controversial, this would allow individuals to appeal against legislative acts of general application, with possible great incidence for fundamental rights’ protection.) 12 Article 265§1 TFEU. 13 Article 277 TFEU. 14 Agency created by the Council regulation (EC) No 2007/2004 of 26 October 2004, “establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union”. 15 Council Decision of 20 December 2007 amending the Protocol on the Statute of the Court of Justice, OJ L 24 of 29 January 2008, p. 42. 16 The cases presented to the urgent preliminary ruling procedure are dealt with in an average of 66 days, see Report on the implementation of the urgent preliminary ruling procedure, by the Court of Justice, 31 December 2012, p.8 (available at http://curia.europa.eu/jcms/jcms/Jo2_7031/). 17 Article 104b.1 only refers to “urgency”: A reference for a preliminary ruling which raises one or more questions in the areas covered by Title V of Part Three of the Treaty on the

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Functioning of the European Union may, at the request of the national court or tribunal or, exceptionally, of the Court’s own motion, be dealt with under an urgent procedure which derogates from the provisions of these Rules. The national court or tribunal shall set out, in its request, the matters of fact and law which establish the urgency and justify the application of that exceptional procedure and shall, in so far as possible, indicate the answer it proposes to the questions referred. But PPU was only used for detention cases as article 267§4 TFEU required and in specific cases concerning child kidnapping, which in that case falls into the judicial cooperation in criminal affairs field. See Report on the use of the urgent preliminary ruling procedure by the Court of Justice, supra no. 16. 18 Article 51.1 of the Charter: The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 19 Article 19.1 of the Treaty on the European Union states: The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. 20 S. DOUGLAS-SCOTT “The European Union and Human Rights after the Treaty of Lisbon”, , Human Rights Law Review, (2011), p. 652-653. The NS case (C-411/10) developed below is a striking illustration of the potentially very broad scope of EU law. 21 L. BURGORGUE-LARSEN ‘L’apparition de la Charte des droits fondamentaux de l’Union dans la jurisprudence de la CJCE ou les vertus du contrôle de légalité communautaire’ – AJDA, décembre 2006, p. 2285. 22 Art 52-7 of the Charter: The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Members States.. And the explanations of article 24, available in the “Explanations relating to the Charter of Fundamental Rights” (2007/C 303/02), state that This Article is based on the New York Convention on the Rights of the Child signed on 20 November 1989 and ratified by all the Member States, particularly Articles 3, 9, 12 and 13 thereof. 23 “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”

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See for example Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal. C31-09 (Grand Chamber) 17 June 2010. 25 But in no case to extend the jurisdiction of the Union in that matter, as written in article 51§2 of the Charter and 6§1, paragraph 2 of the TEU. 26 Detailed critical assessment of the EU secondary legislation on asylum and immigration in “The European Immigration and Asylum Policy: Critical Assessment Five Years after the Amsterdam Treaty” F. JULIEN-LAFERRIERE, H. LABAYLE, Ö EDSTRÖM (dir.), Bruylant 2005. 27 More detailed data in the European Parliament report “The influence of ECJ and ECtHR Case Law on Asylum and Immigration” PE 462.438, April 2012, by H. LABAYLE and P. De BRUYCKER, original full-length version available only in French, executive summary in English. 28 European Commission v Kingdom of the Netherlands, C-508/10, 26 April 2012. 29 Article 17§1 TEU. 30 For an example of the Commission criticizing implementation of the asylum directives with regards to foreigners’ rights see “Report from the Commission to the Council and to the European Parliament on the application of directive, 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers », COM(2007) 745 final, p.7 : However, given that according to the Directive detention is an exception to the general rule of free movement, which might be used only when “it proves necessary”, automatic detention without any evaluation of the situation of the person in question is contrary to the Directive. Furthermore, the length of detention, except in duly justified cases (e.g., public order), which prevents detained asylum seekers from enjoying the rights guaranteed under the Directive, is also contrary to its provisions. 31 ECHR Grand Chamber, M.S.S. v. Belgium and Greece, application no. 30696/09, 21 January 2011. 32 Article 17§1 TEU: The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. Article 258 TFEU: If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. 33 Commission of the European Communities v Council of the European Union, C257/01,18 January 2005. 34 European Parliament v Council of the European Union, C-540/03 (Grand Chamber), 27 June 2006.

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European Parliament v Council of the European Union, C-133/06 (Grand Chamber), 6 May 2008. 36 European Parliament v European Union Council (Grand Chamber), C-355/10, 5 September 2012. 37 Case C-355/10, points 76 and 77. 38 European Parliament Report “The Influence of ECJ and ECtHR Case Law on Asylum and Immigration” PE 462.438, April 2012, by H. LABAYLE and P. DE BRUYCKER, French version p.72. 39 “The figures given (gross figures) represent the total number of cases, without account being taken of the joinder of cases on the ground of similarity (one case number = one case).” See for example Annual Report 2010 on the activity of the Court of Justice, note 1, p. 93. 40 Kadzoev, Case C-357/09 PPU, El Dridi, Case C-61/11 PPU, Minh Khoa Vo Case C-83/12 PPU. 41 Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie, C-465/07, (Grand Chamber) 17 February 2009. 42 Directive 2004/83/CE of the Council of 29 April 2004 concerning the minimal norms relating to the conditions which the citizens of third countries or stateless people must fulfil in order to claim the status of refugee or the persons who, for other reasons, require international protection, and relating to the contents of these statutes. 43 Roger ERRERA refers to this part of the argumentation of the Court as a “declaration of independence”. “The CJEU and Subsidiary Protection: Reflections on Elgafaji and After”, International Journal of Refugee Law, Volume 23, p. 97. 44 Point 35. 45 Points 39 and 40. 46 LENAERTS, K. (2010). “The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice”, International and Comparative Law Quarterly, Vol. 59, April, p. 292. 47 Convention relating to the Status of Refugees, signed in Geneva, on 28 July 1951 and its Protocol relating to the Status of Refugees signed in New York, on 31 January 1967. 48 Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal. C-31-09 (Grand Chamber) 17 June 2010. 49 Recital given first in C-133/06 then taken up later in many judgments, which shows the pre-eminence of the Geneva Convention of 1951 (see cases C-465/07, C-175/08, C-261/08, C-57/09, C-69/10, C-411/10, C-620/10). 50 United Nations Relief and Works Agency for Palestine Refugees in the Near East. 51 Joint cases Aydin Salahadin Abdulla (C-175/08), Kamil Hasan (C-176/08), Ahmed Adem, Hamrin Mosa Rashi (C-178/08) and Dler Jamal (C-179/08) v Bundesrepublik Deutschland. (Grand Chamber) 2 March 2010. 52 Joint cases Bundesrepublik Deutschland v B (C-57/09) and D (C-101/09) (Grand Chamber) of 9 November 2010.

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53 Joint cases N. S. v. Secretary of State for the Home Department (C-411/10) and M. E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (C-493/10), (Grand Chamber) 21 December 2011. 54 ECHR Grand Chamber, M.S.S. v. Belgium and Greece, application no. 30696/09, 21 January 2011. 55 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Members States by a thirdcountry national. 56 Point 94, NS case. 57 Article 3 of the Dublin II regulation (No 343/2003) : 1. Members States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible. 2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant. 58 See in this sense Lindqvist, C-101/01, 6 November 2003, point 87 and Ordre des barreaux francophones et germanophones e.a., C-305/05, 26 June 2007, point 28. 59 See note 20. 60 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. 61 Rhimou Chakroun v Minister van Buitenlandse Zaken, C-578/08, 4 March 2010. 62 European Parliament v Council of the European Union, C-540/03 (Grand Chamber), 27 June 2006. 63 Point 105, Case C-540/03. 64 This simple assertion is surprising since nothing in the directive describes this goal of “promoting”, which does not prevent the Court concluding that: (pt 43) Since authorisation of family reunification is the general rule, the faculty provided for in Article 7(1)(c) of the Directive must be interpreted strictly. Furthermore, the margin for manoeuvre which the Members States are recognized as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof. 65 For a comparison on the standard of protection of fundamental family rights, between ECHR and ECJ, see European Parliament Report “The Influence of ECJ and ECtHR Case Law on Asylum and Immigration’ PE 462.438, April 2012, by H.

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LABAYLE and P. DE BRUYCKER, pp. 40–42; for an analysis of the family reunification directive and the position of the ECJ in the proceedings for annulment of the directive brought by the European Parliament (C-540/03 case) see H. OOSTEROM-STAPLES “the Family Reunification Directive: A Tool Preserving Member State Interest or Conducive to Family Unity?” in A. BALDACCINI, E. GUILD, H. TONER (eds.) (2007). Whose Freedom, Liberty and Justice, EU Immigration and Asylum Law and Policy, Oxford: Hart Publishing, pp. 452–453 and p.488. 66 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. 67 Said Shamilovich Kadzoev, case C-357/09, 30 November 2009, (Grand Chamber), (first urgent preliminary procedure in the asylum and immigration area). 68 Hassen El Dridi, alias Soufi Karim, 28 April 2011, Case C-61/11 (Urgent Preliminary Procedure). 69 Point 62 El Dridi case, C-61/11. 70 Alexandre Achughbabian v Préfet du Val-de-Marne , C-329/11 (Grand Chamber) 6 December 2011. 71 Point 37 Achugabian case, C-329/11. 72 Points 41 and 42, El Dridi case, C-61/11. 73 Point 48, Achugabian case, C-329/11. 74 Aziz Melki, C-188/10 and Sélim Abdeli, C-189/10. (Grand Chamber), 22 June 2010, in which the Court assessed the compatibility of border monitoring carried out by the French police pursuant to article 67§2 TFEU and decided that they went against the principle of the absence of control at internal borders. 75 María Julia Zurita García (C-261/08) and Aurelio Choque Cabrera (C-348/08) v Delegado del Gobierno en la Región de Murcia. 22 October 2009 76 Mohamad Zakaria, Case C-23/12, (pending) 77 Article 47 of the Charter of Fundamental Rights of the European Union : Right to an effective remedy and to a fair trial: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. 78 PEERS, S. (2007). “The ECJ’s Jurisdiction: Time for a Change?” in A. BALDACCINI, E. GUILD, H. TONER (eds.) Whose Freedom, Liberty and Justice, EU Immigration and Asylum Law and Policy. Oxford: Hart Publishing, p.108.

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79 LENAERTS, K. (2010). “The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice”, International and Comparative Law Quarterly, Vol. 59, April, p. 301. 80 See note 26. 81 Article 6.2 TEU, Lisbon version: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.” 82 European Parliament Report “The influence of ECJ and ECtHR Case Law on Asylum and Immigration” PE 462.438, April 2012, by H. LABAYLE and P. DE BRUYCKER, (French version) p. 101. 83 LABAYLE, H. (2011). “Les premiers cas d'application de ce droit européen de l'asile entretiennent aujourd'hui une forme d'espérance jurisprudentielle”, in “Le droit européen de l'asile devant ses juges: précisions ou remise en question?” RFDA 2011 N° 2, p. 275. 84 COSTELLO, C. (2012). “Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored”, Human Rights Law Review 12:2, p. 339.

CONTRIBUTORS’ PROFILES

Anuja, J. teaches Political Science at Vimala College, Thrissur in Kerala. An alumna of Delhi Tamil Education Association, New Delhi and Hindu College, University of Delhi, she did her MA and M. Phil in Political Science and International Relations at the University of Delhi. She has long teaching experience in the college and has held several key posts including Joint Coordinator of Career Guidance and Placement in the college. She has travelled to different parts of the country. Recently she has returned from South Africa after spending three years researching human rights issues affecting women and tribals in the country. Atal, Yogesh is an eminent social scientist who has attained outstanding academic laurels both at home and abroad. A contemporary of David Easton and Robert Merton, Yogesh Atal began his career while teaching at the universities of Saugar, Punjab, and Agra, and at the Indian Institute of Technology, New Delhi. He was the first Director of Research at the Indian Council of Social Science Research (ICSSR), New Delhi and then joined UNESCO as its first Regional Adviser for Social and Human Sciences in Asia and the Pacific. He has visited nearly 65 countries of the world and lectured at various universities. He is the author of a number of books and has edited nearly 40 books and monographs for UNESCO. Some of his books include Poverty and Participation in Civil Society, Perspectives on Educating the Poor, Poverty in Transition and Transition in Poverty, The Changing Frontiers of Caste (1968), Local Communities and National Politics (1972), Social Sciences in Asia (1974), Social Sciences: the Indian Scene (1978), Mandate for Political Transition (1999), Indian Sociology: From Where to Where (2002), Changing Indian Society (2006), Education and Development (2007) and Entering the Global Village (2008). Two books were published in his honour, viz., Emerging Social Science Concerns (2003) and Exploring Indian Society: Essays in Honour of Professor Yogesh Atal (2012). Bhowmick, Pradip Kumar is an Associate Professor in the Department of Rural Development Centre, Indian Institute of Technology, Kharagpur,

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India. His major research interests include tribal and rural development planning, qualitative research, and applied research. Chand, Prakash is an Assistant Professor at Dyal Singh (Evening) College, University of Delhi. He has pursued his higher education from University of Delhi. His research articles have appeared in various journals including Indian Social Science Review, Gandhi Marg, Indian Journal of Public Administration, Urban India and Social Change. Recently he has been selected for UGC Post-doctoral Research Award to work on the topic “Environmental Pollution and Industrial Relocation in Delhi: A study of Rehabilitation of workers in Bawana Industrial Area”. His areas of interest are public administration and environmental governance in India. Choudhary, Sunil K. teaches Political Science at Shyam Lal College [Evening], University of Delhi, India. A topper of Hindu College in graduation and a postgraduate gold medallist from the University of Delhi, Sunil Choudhary has an outstanding academic record and research publications. He did his post-doctoral fellowship at Tel Aviv University, Israel during 2002-03 on the topic, “Changing Sketch of Parties and Party Systems: A Study of Israel and India” which is in the process of publication. He was a Commonwealth Fellow at the University of Oxford, UK during 2010-11 and worked on “Changing Role of Indian Diaspora in British politics”. His writings on contemporary issues like communalism, secularism, party systems, democracy, governance, human rights, diaspora and corruption have figured in various refereed journals and several World Congresses of the International Political Science Association held in Japan, Chile and Spain from 2006 to 2012. His book on Communalism and Secularism in Indian Politics and Study of BJP is one of the original writings on the subject published with a grant from ICSSR, New Delhi. He has recently co-authored a book, Combating Corruption: The Indian Case with Professor Yogesh Atal which is in print from Orient BlackSwan. Dassi, Archana is presently working as Associate Professor in Department of Social Work at Jamia Millia Islamia. Her area of specialization is vulnerable sections of society especially children, the disabled and elderly. She has carried out a number of research projects in the field of the elderly and children. She has to her credit two books and more than a dozen articles in national and international journals. She is certified as a Master Trainer by the National AIDS Control Organization (NACO) in the field of HIV/AIDS. She has been conducting sensitization

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workshops for various stakeholders through NGOs working in the field of children, the elderly and disabled. Deswal, Ved Pal Singh teaches law at Maharishi Dayanand University, Rohtak, Haryana, India. He graduated in Mathematics, studied law at M. D. University and Allahabad University. He qualified for UGC-NET and served as Assistant Professor in Law in Rajiv Gandhi National University of Law, Patiala (Punjab). He has to his credit more than 25 articles in national as well as international journals. He has attended more than 60 national and international conferences/seminars. He has also completed Training of Trainers (TOT) programme conducted by National Law University Bhopal. Currently he has been looking after as a Warden and Public Information Officer of Boys Hostel at the university. Dewan, Astha is working as an Assistant Professor in Shri Ram College of Commerce, University of Delhi. A research scholar and a graduate of the Delhi School of Economics, she has been the topper throughout her academic career. She is M.Com (Gold Medallist) and Delhi University topper. She has published many research articles in different journals of national and international repute such as Chartered Secretary, ICFAI’s Professional Banker, Business Analyst, to name a few. She has presented papers at various national and international conferences. The Institute of Company Secretaries, for the first time in its history, is publishing her work on “Segment-wise Role of Company Secretaries: A Study” in book form. She is a life member of the Indian Commerce Association and the Indian Accounting Association. Dhar, Sanghamitra has done her Masters in Social Work and is currently pursuing her doctoral research under the supervision of Dr Archana Dassi from Jamia Millia Islamia, New Delhi. She is a UGC-JRF fellow. She is involved as Guest Lecturer in taking classes in P.G. Diploma in NGO Management. She has presented one article on female foeticide in a National Seminar on Girl Child Status. She has worked for four years as senior level development professional on the issues of child labour, female foeticide, resettlement and rehabilitation issues all over India. Eslami, Fatemeh is an Iranian scholar who has been working with International Organization for Migration (IOM) based in Kabul Afghanistan. She also happened to be a Legal Advisor in Kuala Lumpur, Malaysia for a short time. Currently she has enrolled for doctoral research at the Faculty of Law in University of Delhi. Her research area is

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International Trade Law and she is pursuing her work under the supervision of Prof. J.L. Kaul. She has also done an LL.M. (Human Rights) at Bharatiya Vidyapeeth University. She has participated in and presented papers at several international and national conferences which are published as reference books. Gupta, Neha is presently working as Assistant Professor in Jagannath International Management School, Kalkaji under Guru Gobind Singh Indraprastha University. She has qualified NET with JRF and is taking subjects related to her specialization, viz., Human Resource Management, Organizational Behaviour, Entrepreneurship, Management, and Communication Skills. She has an excellent academic record and has industry experience in various multinationals and her work has been greatly admired in the corporate sector in the country. She has attended various conferences, FDPs and MDPs, some of them being AICTE and MSMEDI sponsored. Kaur, Sandeep graduated M.Sc. in Forensic Science from Punjabi University, Patiala in 2010 and qualified UGC-NET JRF held in June 2010. She is presently a UGC-JRF and is pursuing her doctoral research at the Department of Anthropology, Panjab University, Chandigarh. She specializes in Forensic Biology and Serology and is engaged in conducting research on Morphological Variation in Human Dentition with Special Reference to Personal Identification in Forensic Examination. She has participated and presented papers and posters in various national and international conferences. Kumar, Ramesh teaches Political Science at Government P. G. College, Sheopur in Madhya Pradesh, INDIA. A student of University of Delhi where he completed his academic qualifications, Prof. Ramesh got his first appointment as an Assistant Professor through Madhya Pradesh State Service Commission. He has held several eminent posts at the college, university and government level. He has been working on different issues like human rights, gender, corruption, tribal welfare etc. Recently, he has been to South Africa as Human Rights Fellow and successfully completed his doctoral study. Lau, Pui-yan Flora, MSc, Ph.D (Oxford), is an Assistant Professor of Sociology at Hong Kong Shue Yan University. Prior to joining HKSYU, she taught and researched at the University of Hong Kong (2008-12). Her areas of expertise include social capital, the disadvantaged groups,

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Contributors’ Profiles

poverty, human resources management, social policies, social entrepreneurship and regional studies. She is an active member of key professional bodies across continents. Loubeyre, Alix is a doctoral scholar at UVSQ, Université of VersaillesSaint-Quentin, France. Her area of specialization is European law whereas her topic of the doctoral research is “Articulation of competences and responsibilities of the EU and its member states regarding the implementation of the European migration policy”. She was a student at the École Normale Supérieure (ENS) de Cachan in the Law, Economics and Management Department and has an M. Phil in European Law and European Policies from Rennes 1 University. She was a resident at the Maison Française d’Oxford, and an Academic Visitor at the Institute of European and Comparative Law of Oxford University, Faculty of Law. Narang, Amarjit S., an MA and Ph. D in Political Science from University of Delhi, has taught at the University of Delhi, Jawaharlal Nehru University and Indira Gandhi National Open University (IGNOU). He has been a fellow at Brock, McGill and Queens Universities and the Indian Institute of Advanced Studies, Shimla. Prof. Narang has published about 10 books and over 60 papers and articles. Apart from participating and presenting papers in a number of national and international conferences, he has participated in the UN Human Rights Commission, Human Rights Council and Sub Commission for Promotion and Protection of Human Rights. He has been Vice-President and President of Shastri Indo-Canadian Institute and an active member and office-bearer of various professional and social bodies. He is actively involved in teaching as well as in the promotion of human rights in India and abroad. His areas of interest include Indian politics, South Asia, North America, human rights, higher education and minority issues. Neena Sara, T. T. is an Associate Professor in Sociology at Vimala College, Thrissur in Kerala. She has rich research and teaching experience in the discipline of Sociology at different academic levels. She specializes in gender studies, environmental sociology, gerontology and tribal groups. She has completed two coveted research projects from UGC on “Social Network and Support System of Elderly” and “Gender Disparity and Social Bias in Co-Educational School System”. She has number of publications in various journals of great academic standing. She is the Executive Member of Kerala Sociological Society and also holds the post of Joint Director of Women’s Development in the college.

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Pandey, Sonal is a research scholar at the Department of Humanities and Social Sciences, IIT Kharagpur. She qualified JRF (UGC) in Anthropology in December 2008. Her areas of interest are gender studies, sociobiology and disaster studies. Her broad area of research is Human Trafficking. She has to her credit several paper presentations at national seminars. She has participated in several workshops intensifying her concepts in methodology. Singh, Basant passed out LL. M. in Law from Punjabi University Patiala in 2010 and qualified UGC-NET JRF in June 2009. As research fellow from UGC, he is pursuing his doctoral work at the department of Law, Punjabi University, Patiala, India. He specializes in criminal law and is currently engaged in conducting research on “Armed Forces Special Powers and Law”. He has participated in and presented papers at various national and international conferences. Singh, Pravin holds a PhD in Political Science from University of Delhi on “India and the European Union: Political Economy of Foreign Policy”. He was a visiting scholar at the University of Sheffield, UK, on a grant by the Indian Council of Social Science Research, New Delhi. He is currently studying India–EU relations in the context of the global economic recession, security challenges, environmental pollution and sustainable development. He has presented papers at more than fifteen national and international seminars on various topics relating to foreign policy, environment, human rights, terrorism, education and globalization. Tahir, Sumbul did her Masters in Human Resource Management from Jamia Millia Islamia and is pursuing a PhD from the same institution. She has qualified the UGC-NET twice, with HRM and Management. She has worked with Indian Oil Corporation Ltd as a Grade “A” Officer for about two years. Currently she is a Guest Lecturer with Jamia Millia Islamia and an Assistant Professor (Part Time) in Jagannath International Management School, Kalkaji under Indraprastha University. Her areas of interest include organizational behaviour, psychological attributes of people at work and human resource interventions. Tewari, Hare Ram is a Professor in the Department of Humanities and Social Sciences, Indian Institute of Technology, Kharagpur, India. He has more than 30 years of teaching and research experience. His major research interests include urban sociology, qualitative research, and organisational behaviour.

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Contributors’ Profiles

Tripathi, Dipti accomplished her higher education at Banaras Hindu University and Jamia Millia Islamia. She also held the studentship of National Law School of India University, Bangalore. Currently she is working as an Assistant Professor, Faculty of Social Sciences, Banasthali University, Rajasthan. Her doctoral thesis falls in the realm of Contemporary Interdisciplinary Social Sciences. She has explored the reproductive health movement and family planning agenda in the context of contemporary India. She has been ICSSR, ICHR and UGC doctoral fellow and has contributed research papers in various international and national forums. Her area of research and teaching interest broadly covers, but is not limited to, reproductive health and rights, human rights, women’s movement, gender studies, modern and contemporary history of India, national movement, historiography, international relations and world history.

EDITORS’ PROFILES

Dr Gyan P. Agarwal has recently retired as the Principal of Shyam Lal College (Evening), University of Delhi, India. An alumnus of Shri Ram College of Commerce (1967), he holds a Masters degree in Commerce and a Ph.D. in international business from Department of Commerce, Delhi School of Economics, University of Delhi. He has to his credit several books and research papers published in different journals of national and international repute. Dr Sunil K. Choudhary is an Associate Professor in Political Science at Shyam Lal College [Evening], University of Delhi, India. A post-doctoral fellow at Tel Aviv University, Israel and Commonwealth Fellow at the University of Oxford, UK, Sunil Choudhary has written extensively on issues like communalism, secularism, party systems, democracy, governance, human rights, Diaspora and corruption. His book on Communal-Secular Paradox and BJP is one of the original writings on the subject published with a grant from ICSSR, New Delhi. He has recently co-authored a book with Professor Yogesh Atal titled Combating Corruption: The Indian Case which is in print from Orient BlackSwan. Dr Reenu Gupta is currently Assistant Professor at Shyam Lal College (Evening), University of Delhi, India. She has published several research papers in journals and magazines of national and international repute. As a Senior Research Fellow, UGC, she did her doctoral work highlighting the changing nature of the novel in Hindi literature during twentieth-century India. She has participated in various academic and co-curricular activities in different colleges of the University of Delhi. She has recently edited a book titled, Consumption Culture, Market and Childhood (in Hindi) published from Apple Books, Delhi in 2013.