Medicine - art, science or business?

A couple of years ago I had an ear infection.  I had never had an ear infection before and can honestly say it was the most painful thing I have ever had (I was going to say worse than childbirth but seeing as I had a planned caesarean under spinal anaesthetic which was completely painless, I wasn’t sure the comparison stood up).  The ear infection started at work one Tuesday morning when I was a trainee solicitor.  At lunchtime I went to a walk-in clinic where they gave me antibiotics.  By that evening, however, the side of my head had gone numb, was throbbing and I was convinced something serious was wrong so went to A&E.  More antibiotics and heavy duty painkillers.  5 days later, 3 days off work, 2 GP visits (more tablets) and it didn’t seem to be getting any better.  It was Sunday by this time and I was desperate.

Susen had an ‘uncle’ (a family friend and colleague rather than real uncle) in Birmingham who was an ENT surgeon (now retired) and he sought his advice over what to do.  His uncle kindly offered to see me that afternoon at his Birmingham house where he had a fully equipped clinic attached to the house where he used to see his private patients.  This shows how desperate I was as normally my middle class conditioning to not bother anyone, or be a burden would have won over.  Instead I gratefully agreed and we drove up to Birmingham.

As we sat in the lounge and chatted initially it was mainly social catching up, but I was also aware that Susen’s uncle was carefully watching me, looking at whether I could move my face and talk easily.  Examining me in his clinic, what struck me was his focus and craftsmanship in his work, obviously honed through years of experience.  It was his profession and an art.  He tactfully waited until Susen had gone to get something from the car to ask if I was pregnant (concerned about all the medications I was taking by that point) – just in case I was but Susen didn’t know (I wasn’t).  His diagnosis differed from the GP’s but turned out to be spot on.  I followed his advice and thankfully the ear infection cleared up over the next few days.

After the examination, we talked over tea and mishti (Bengali sweets).  He reminisced about meeting Susen’s father when he first came to the UK from his Calcutta medical college, about how pleased he was to find a fellow Bengali doctor and eating Susen’s mother’s lamb chops (not chops as we know them, but a spicy fried snack made with minced lamb or mutton).  He said something that struck me at the time, and has stayed with me.  Talking about his work as a surgeon he said he usually went in on a Saturday as it was his duty to see how his patients he had operated on the day before were getting on.  It was the use of the word ‘duty’ that was interesting.  For him, there was nothing about having to because of a rota, or concern about possible negligence if he didn’t.  Instead it was his duty to his patients to make sure they were OK and recovering.

I know quite a few doctors (and indeed had a long relationship with a doctor (of Indian origin) during my 20s) and it has long been the profession of choice for first and second generation immigrants to the UK, as a sure route to stability, money and status.  I have heard quite a few stories of counting down the minutes to 5pm then switching off their bleep on the dot of 5pm so that anything that happened after that was the on-call’s problem, not theirs.  Or now, as consultants, of being very well-paid for what they do – too much to consider leaving – but having very little interest in the practise of medicine, or duty to patients.  I am sure they are very good at what they do, but it’s just a job where you go in and do what you have to do, then leave.  Or of female GPs who keep on working their part-time hours purely because they earn too much from it to give it up – it pays for their children’s private school fees.

I absolutely understand that a lot of the behaviour of junior doctors was due to long hours on call, stress and overwork.  I am also sure there are many doctors out there who do have a sense of vocation and duty.  For Susen’s father, medicine – or surgery in his case – was his life.  It occupied both his working and leisure time, as he attended conferences, kept up with medical journals and set up groups and events in the UK for graduates of his Calcutta medical college.

But something has changed.  At the moment, many consultant’s contracts say they cannot be required to work at weekends – something Sir Bruce Keogh, medical director of the NHS is trying to change.  The absence of senior doctors in hospitals at weekends has been linked to higher death rates and complications at weekends than during the week, with an estimated 4,400 people dying every year as a result[1].  For similar professions in the private sector – such as law or accountancy - it would be rare to never have to work at weekends when required on occasion – although many doctors will use time at the weekends to practise privately.

Then there is the advent of evidence-based medicine, NICE[2] guidelines, protocols and care pathways which have all sought to change medicine into a science.  No longer relying on the doctor’s own clinical judgment from years of experience, with an individualised therapeutic encounter between physician and patient, evidence-based medicine seeks to standardise the diagnosis and treatment with evidence of efficacy demonstrated through the latest randomised controlled trial or meta-analysis.  The doctor’s own clinical judgment becomes constrained by guidelines and fear of legal proceedings for negligence if the standardised treatment plan is not followed.  It’s easy to mourn the loss of the art of medicine in this era of trials and evidence-based medicine, but it’s important to remember the huge benefits and gains as well.  We might still be using ineffective or even downright dangerous treatments such as mercury or blood letting if medical science had not intervened.  Or, even more recently, still think that stomach ulcers were primarily caused by stress or lifestyle rather than a bacteria[3] - not to mention the development of modern anaesthetics.  It could be argued that doctors today have a greater duty towards their patients than in the past – when, perhaps, mistakes went unchallenged or unnoticed.

Of course, development and testing of new treatments costs money with the potential to make pharmaceutical companies huge profits if successful.  So, medicine is not now an art or a science, but a business.  Nowhere is this more obvious than in a mainly private healthcare market such as the US – where healthcare expenditure is currently around 18% of GDP – and growing – compared to around 9.5% in the UK.  Nirmal Joshi, writing in The Guardian this week[4] says, ‘Being a doctor was once a job with a great purpose.  Now it’s just a business’.  Joshi, an Indian-trained doctor has been working in the US for the past 3 decades.  He writes of his frustration at being pressured to see more and more patients in less time where they have become ‘more like business transactions rather than what they should be: rich and intensely human interactions potentially resulting in tremendous fulfilment for both parties’.  Joshi wants a ‘spirited discussion’ on ‘real healthcare reform’ and says he is looking for ‘the simply joy that large compensation packages will never bring: the joy that my father felt in treating the poor farmers and others in the small Indian town of Nainital’.

It is perhaps the loss of this human interaction and individual-focus in the therapeutic encounter between doctor and patient that has made alternative medicine so popular in the last few years.  An acupuncturist or homeopath can undoubtedly give the kind of time and attention in a consultation lasting 45 minutes or an hour that your average GP or hospital doctor cannot.  And it is this human interaction that can be so important in a healing process – and probably the mechanism by which many alternative treatments work (via the powerful placebo effect) than through the particular efficacy of acupuncture needles or homeopathic pills.

Many professionals, including doctors, want to feel that they are practising for a more noble purpose such as helping others in need or improving society, rather than seeing their profession as ‘just a business’.  Doctors working in the NHS in the UK have the luxury of not directly having to think about the costs of treatment and so can claim more noble motivations than being in it purely for the money or sullied by such notions of financial transactions.  This belies the fact, however, that doctors are in fact richly rewarded in the UK for their efforts, being paid for not directly from the patient but indirectly through the tax system, funded ultimately by you and me.

By downgrading business ideas as Joshi does by saying medicine now is ‘just a business’ it also ignores the contribution that innovative business models and ideas can make to improving healthcare.  A rich and intense human interaction bringing ‘tremendous fulfilment’ to both parties is no good if the treatment is ultimately ineffective (except through a placebo effect) or if the cost of the encounter is prohibitive to the majority of the population.

It was precisely by taking one of the oldest business model innovations – the assembly or production line model invented by Henry Ford more than 100 years ago – that the Narayana Hrudayalaya Hospital in Bangalore is revolutionising heart surgery in India[5].  Sometimes referred to as the ‘Henry Ford of heart surgery’ Dr Devi Shetty, who founded Narayana Health in 2000 has brought economies of scale and a factory-like style to the provision of cardiac surgery in India where surgeons carry out around 12% of all India’s cardiac procedures[6].  The average cost is around $1600 for coronary bypass surgery, compared to over $100,000 in the US[7] and Dr Shetty wants to reduce this price to $800 in a decade.  This has not been at the expense of quality, as one might suspect.  The Narayana Hrudayalaya reports a 1.4% mortality within 30 days of coronary bypass surgery – compared to an average of 1.9% in the US, despite the fact that the Indian patients are often higher-risk[8].  This model has shown it is possible to bring high quality health care at a low cost to a large number of people.

Other innovations in healthcare, borrowed from other sectors or businesses include the use of checklists[9].  The idea of checklists was taken from the aviation industry where their use in standardising procedures for pilots contributed to a huge improvement in aircraft safety.  The same idea is now being used in anaesthesia and surgery, where a similar improvement in patient safety is also being seen.  According to Brian Jarman, of Imperial College London, the introduction of checklists in 3 hospitals in 2007 was associated with 255 fewer deaths than the previous year. Checklists, together with better team working and flattened hierarchies within teams are said to have led to better patient safety and fewer deaths.

So, while perhaps mourning the decline of medicine as an art, with a unique relationship between doctor and patient, let’s not forget the value and benefit of medicine being developed as a science and a business.  The best would probably be to combine all three.

---

[1] As reported in The Telegraph 15/12/2013

[2] National Institute for Health and Care Excellence - UK

[3] Helicobacter Pylori

[4] The Guardian, 22 Feb 2014

[5] Featured recently on ‘IndianHospital’ broadcast by Al Jazeera TV

[6] From the INSEAD blog – Karan Girotra 5 Feb 2012

[7] Figures from Bloomberg.com 28 July 2013

[8] From the INSEAD blog – see note 6

[9] See ‘The Checklist Manifesto’ – the much acclaimed book by surgeon Atul Gawande

“This is our community.....These are our countrymen” - Khalsa Aid

Yesterday morning was quite windy and blustery in central London but despite the conditions I still took my regular walk around St James’s Park. In the space of 10 minutes one got a wonderful impression of London and pride in being English and British: a Guards band was parading, small children in dayglo from a nursery were excited to watch, a chocolate Labrador was being cocooned in its owner’s coat, and then the resplendent red-coated Horse Guards trotted up The Mall.

When I got back home I was glued to some of the coverage of the recent floods on the 24 hour news channels. It is somewhat of a shock when our own institutions cannot mobilise themselves to act quickly on behalf of its own citizens. But in the midst of this perhaps climate change precipitated carnage there have been some rays of sunshine.

On both BBC and Sky a splendid bearded and turbaned Sikh – whom I later learn is Ravi Singh – is interviewed outlining why his organisation, Khalsa Aid, is in the Somerset Levels, offering whatever help and assistance it can. In one interview I saw Singh had come from Slough with supplies for those distressed by the floods. Other filmed packages saw the group making and moving sandbags into position to try and hold off the water.

Not having heard of Khalsa Aid before I found, via their website, that it was founded in 1999 in Slough as an offshoot of the Gurdwara, the Sikh temple, originally offering aid to Kosovo and Albania, and then offering assistance in times of other overseas disasters. Its Roll of Honour now includes the Philippines, Haiti, the tsunami, as well as ongoing projects in India and Pakistan such as preventing drug abuse. There is also a focus on water, sanitation and anti-malaria projects.

My knowledge of Sikhs and Sikhism is to my chagrin very limited. You can, however, read about Sue’s visit to the gurdwara here http://www.indiainlondon.com/sikhism-and-a-visit-to-the-gurdwara/ . But I do know that Sikhs have a public service ethos that is second to none amongst groups in India. Sikhs have served with honour and distinction in both World Wars for the British Empire, as well as for post-Independence India. It appears that this public spiritedness has been maintained amongst the Sikh diaspora. It is an ethos that other groups from the Indian sub-continent could learn from.

In his interviews Singh seemed to decline any opportunities to laud his organisation merely suggesting that they felt it was the right thing to do with the country in crisis. He asked that more volunteers come and offer assistance. Singh commented “This is my community” nailing the lie of Mrs Thatcher’s statement “There’s no such thing as society”. Singh was also keen to stress that this was his country, “These are our countrymen” – there was no ambivalence there – and it was almost his civic duty to help in times such as these. Singh appeared to be proud of being British and of his Sikh heritage too. This country should be proud too.

http://www.khalsaaid.org/

http://www.huffingtonpost.co.uk/claudia-tomlinson/khalsa-aids-humanitarian-_b_4762401.html?utm_hp_ref=tw

Some thoughts about the recent Indian Supreme Court decision on Section377

Sexual politics are certainly high up on the agenda at the moment – unfortunately for the wrong reasons with protests about Russia’s anti-gay laws and attitudes continuing amidst the Sochi Winter Olympics.  During this, however, the Indian Psychiatric Society (IPS) has had the decency to publically state, ‘there is no evidence to substantiate the belief that homosexuality is a mental illness or a disease’.  The IPS certainly had some appeasing to do after the out-going president, Dr Indira Sharma caused a storm by inferring that homosexuality was ‘unnatural’ and that those uncomfortable with their sexuality could seek help from a psychiatrist that might even help them change their orientation[1].  Perhaps the change in stance was made even more apposite as a UK Indian-trained psychiatrist, Dr Dinesh Bhugra – Professor of Psychiatry and Diversity at King’s College London - is the first president of the World Psychiatric Association who also happens to be gay.

This got me thinking about the recent Indian Supreme Court (SC) decision last December which effectively re-criminalised homosexuality in India, by upholding the constitutionality of Section 377 of the Indian Penal Code (see my blog about this here.  You can also access the full judgment here).  I was interested in what the reasoning was behind their decision and how they came to that conclusion – a decision they more recently declined to review.  I therefore printed off all 98 pages of the judgment and set about reading through it.  After about 10 pages I fell asleep for 2 hours…….a consequence I hope not of the judgment itself but of a bad cold I happened to have at the time.  My sleeping clock was then really messed up when I found myself awake in the middle of that night thinking about the decision and the logic behind it.

I do have that kind of pedantic mind that likes trying to follow logic and arguments.  I have to give our own senior courts here in England and Wales credit for their ability to summarise and analyse arguments and come to a decision in often very controversial cases.  I may not always agree with the decision, but I can usually see how they have arrived at a decision. The more I read of the Indian SC decision, however, the less I followed its reasoning.  I am aware that this readership will probably not be a bunch of lawyers or even pedants, so I will try to curtail my inclinations towards a lengthy micro-analysis, but wanted to share some of my reactions and thoughts on the judgment[2].

The first 45 pages of the judgment are taken up with summarising the previous Delhi High Court decision, and the arguments put forward by the appellants and respondents.  Then the SC puts forward its reasons for allowing the appeal.  I have put these under different headings for clarity, together with my comments.

The SC may have the power to declare Section 377 void but says it’s Parliament’s job, not theirs

The SC first considered the technical point of whether the High Court and the SC had the necessary power to declare as void any pre-Constitution legislation judged inconsistent with the Indian Constitution.  Section 377 forms part of the Indian Penal Code enacted under British rule in 1860, and therefore pre-dates the Indian Constitution.  The SC stated that the High Court and SC were indeed empowered to declare void any law enacted prior to the Constitution and which was inconsistent with the Constitution.  There was, though, a presumption of constitutionality in favour of all laws, including pre-Constitutional laws (para.31, p.60).  The SC, however, then went on to state that:

‘…..After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs.  The 172^nd Law Commission Report[3] specifically recommended deletion of that section and the issue has repeatedly come up for debate.  However, the Legislature has chosen not to amend the law or revisit it.  This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision……..

….It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need’ (paras.32-33, p.61-62)

So: the Law Commission has recommended the repeal of Section 377, the government of India did not challenge the 2009 Delhi High Court ruling, the SC has the power to declare any law void which is unconstitutional yet decides it won’t do it, but instead says it is up to Parliament.  It could be a game of who blinks first – SC waiting for Parliament, Parliament waiting for the SC….

Section 377 is not arbitrary or irrational and is not therefore illegal with respect to Articles 14 and 15 of the Constitution

The judgment then spends the next 14 pages reviewing the rape laws in the IPC and legislative history of Section 377.  Given that Section 377 is very non-specific, in criminalising ‘carnal intercourse against the order of nature with any man, woman or animal’ it is not surprising that interpretations in case law have ranged from anal sex to oral sex and even ‘thigh sex’.  The SC notes that, despite the cases cited referring to non-consensual and coercive sex, Section 377 applies to anyone and refers to certain acts rather than a particular identity or orientation.  So far so good.

After this, I am truly struggling to understand the logic of the judgment.

Article 14 of the Constitution states, ‘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 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth.

The SC quotes from Re. Special Courts Bill, 1978 (1979) 1 SCC 380 where it was considered whether a particular classification is unconstitutional.  Here it is argued that Article 14 does not mean that the same laws should be applicable to all persons but that all persons in similar circumstances should be treated alike.  Therefore different classes of people may be treated differently – which is OK as long as the classification in relation to a law is not arbitrary or irrational.

From this the SC concludes that:

‘Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification…..Therefore the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution’. (para.42, p.82).

So, the argument seems to be that because Section 377 will apply to anyone having sex ‘against the order of nature’ (whatever that means) – heterosexual as well as homosexual, married or not - it is not discriminatory.

It is true that Article 15 does not directly outlaw discrimination on the grounds of sexuality.  But it is almost certainly the case that gay men will be subject to indirect discrimination (on the grounds of sex) as by definition sex between two men does not involve penile-vaginal intercourse.  For the law to truly not be discriminatory, presumably every married heterosexual couple will have to be questioned about how they have sex, and whether this includes anal, oral or ‘thigh’ sex – which is almost certainly not going to happen.  Gay men will therefore be unfavourably discriminated against in the application of this law.

And a law criminalising sex ‘against the order of nature’ is not arbitrary or irrational?

Not enough evidence of discrimination

‘The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM[4] community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them’. (Para.40, p.78-79)

But surely the SC should be dealing in matters of law and principle?  They are not deciding a specific alleged case of discrimination here but rather the principle of Section 377 and human rights.

The LGBT community in India is only tiny

‘While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution’.  (Para.43, p.83)

But what has the number of prosecutions, or size of the population most affected got to do with the principle of whether a law is unconstitutional?  It is a point of principle, not of numbers – and often human rights protection is even more important for minority populations at risk of discrimination. Section 377 also legitimises anti-gay attitudes in the country and reinforces discrimination in society generally.

Just because a law is vague, it doesn’t necessary make it unconstitutional

-         at least I think that is what the SC is arguing here (it’s not very clear).

The SC remarks that, ‘The vagueness and arbitrariness go to the root of a provision and may render it unconstitutional, making its implementation a matter of unfettered discretion.  This is especially so in the case of penal statutes’ (Para.44, p.83).

Exactly, you might think.  So, criminalising sex ‘against the order of nature’ is pretty vague and open to interpretation or even ‘unfettered discretion’.  Anal or oral sex may be perfectly in accordance with the order of nature for a gay man or woman.

The SC then says, ‘However, while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered’. (Para.44, p.83). It then quotes from K.A.Abbas v. The Union of India and Anr. (1970) which seems to say that no law will be considered bad for sheer vagueness, and that if a law is vague or appears to be so, the court must try to construe it in accordance with the intention of the legislature.

After this quote, the SC moves straight on to considering Article 21 – without stating its conclusion from the previous discussion about the vagueness of the law and discretion in relation to Section 377.  We are therefore left guessing what they are trying to argue here from the two cases they quote from.

The SC can’t help it if Section 377 has been misused

‘Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community.  In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.  It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC’. (Para.51, p.91)

So the argument seems to be that ‘it’s nothing to do with us’ if the law has been ‘misused’ against the LGBT community even though it seems to criminalise everything other than penile-vaginal sex and this is bound to focus on gay men in particular.

We won’t rely on interpretations from other jurisdictions

Article 21 of the Constitution states, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.

The SC states that Article 21 includes the right to privacy, dignity and autonomy and then has a discussion, including again various quotes from cases about the limits of this and how privacy must be balanced against other rights and values.

This seems fair enough – and directly relevant to whether it is any of the State’s business what consenting adults get up to in private[5].

But then, bizarrely, instead of following up this analysis, and when it is reasonable and proportionate to limit personal liberty, the SC berates the High Court for having relied on judgments of other jurisdictions:

‘In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions.  Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature’.  (Para.52, p.93).

In fact, no proper follow up or analysis of the perhaps crucial Article 21 takes place.

The first glaring point to note from this section is the term the ‘so-called rights of LGBT persons’.  In what way are their rights ‘so-called’?  The SC does not elaborate.  LGBT people are human beings and therefore, surely subject to exactly the same human rights as any other human being.  They are rights, not ‘so-called’.

The SC quotes from Jagmohan Singh v State of UP (1973) in which the Court observed that, ‘We have grave doubts about the expediency of transplanting Western experience in our country.  Social conditions are different and so also the general intellectual level’ (Para 14. p.94).

The SC also quotes from another case where the High Court refused to rely on Halsbury’s laws of England, seemingly because marriage in India was primarily arranged unlike social norms in other countries.  I am not entirely sure what this has to do with what kind of sex someone has, in private between consenting adults.

It is fair enough that India wants to rely on its own Constitution and legal decisions, but jurisdictions all over the world, particularly those sharing similar types of legal systems – the UK, US, Canada, NZ and Australia in particular will often refer to cases in these other jurisdictions for how issues have been decided.  Also India, like many other countries are signatories to various international legal declarations – for example the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights – which aim to set minimum universal standards, particularly of the relationship between State and individual.  Does India really want to isolate itself from other countries, in such a globalised world?

But there is no such discussion in the SC judgment, simply a statement, after the quoted cases that, ‘In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable’ (Para.54, p.97).

Let’s also not forget that Section 377 itself is a product of a foreign jurisdiction – the British – in the midst of a Victorian puritanicalism.  The UK – along with most other democracies – have moved on from this though as social attitudes have changed and developed.

Some other observations

It is worth also noting that only 2 Supreme Court judges made this judgment: Justices G.S.Singhvi and S.J.Mukhopadhaya.  Justice Singhvi apparently retired straight after this judgment, while S.J.Mukhopadhaya was one of 2 judges who rejected the petition from Indian government lawyers to review its decision.

I was surprised to see only 2 judges having made such a decision of national and international importance.  Their decision would have carried much greater legal weight had there been 5 or 7 judges contributing to the decision.

I was disappointed at the lack logic behind much of the reasoning.  All lesbian, gay, bisexual, transgender people in India – actually everyone regardless of sexual orientation in India deserves better reasoning and better judgments than this one.  It affects not just people in India but 2^nd and 3^rd generation Indians in the diaspora – slowly gaining confidence in their sexual identity in more liberal countries.  It leaves LGBT people in India open to further discrimination and harassment.

I am not an expert in Indian law and these are my thoughts and comments as I read through the judgment.  I am a product of a Western liberal democracy and a believer in universal human rights.  By supporting gay rights, you are supporting human rights – for everyone.

People in India and across the diaspora deserve better than this. Even if the Indian Supreme Court had come to the same decision, their reasoning should have been so much better.  It won’t be the first or the last time that a senior court has undertaken tortuous intellectual cartwheels to justify a previous opinion already held.

Let’s hope the Indian Parliament can change this for a better and more equal world.

---

[1] See http://articles.timesofindia.indiatimes.com/2014-01-21/india/46410477_1_orientation-dr-indira-sharma-ips.  Accessed 10 Feb 2014

[2] Prachi Shrivastava has also summarised some of the Supreme Court arguments – ‘7 creative (legal) reasons the Supreme Court found not to strike down Section #377’ in Legally India.com on 11 December 2013.  Mine certainly overlap but the comments are my own.

[3] Dated 25 March 2000

[4] Men who have sex with men

[5] Don’t think the UK law is perfect on this point though – as any good law student will know in the case of R v Brown (the ‘Spanner case’) criminalising consensual sadomasochistic acts between adults done in private.  Except that in R v Wilson the Court of Appeal upheld that a husband branding his initials on his wife’s buttocks was OK – with her consent – because consensual activity between a husband and wife in privacy was not a matter for the courts.  Not great logic here either.

Indians and their servants

The case of Devyani Khobragade has become a cause célèbre in India but I would contend for the wrong reasons. In December 2013 Khobragade, then Indian Deputy Consul General in New York, was arrested for visa fraud by the US authorities and for underpaying her Indian domestic help Sangeeta Richard. It was Khobragade’s treatment in being arrested at all, strip searched and held in a cell with common criminals that has enraged the Indian media and authorities. Richard has reportedly said that she worked 17 hours a day and at an hourly rate that was considerably below the US minimum wage.

The situation was quite nuanced with some uncertainty about Khobragade’s status – she was entitled to consular immunity not the fuller diplomatic immunity – Richard’s family being taken from India to the US for their own protection. Her current location and status remain uncertain. Eventually Khobragade was afforded full diplomatic immunity after a transfer to the Indian UN Mission, and then asked to leave the US. It appears that Khobragade’s husband and children, all US citizens, remain in the US. In retaliation India expelled a US diplomat, believed to be the same person who engineered the removal of Richard’s family to the US. What was troubling were the other retaliatory measures the Indian government set in train from downgrading security at the US Embassy, to closing the American Club in Delhi, to withdrawing the IDs of US consular officials, to threatening same sex partners of US diplomats with visa withdrawal following judgments in the Delhi High Court amongst others.

What was also troubling, to my mind at least, was the reaction in India, with support for Khobragade but limited attention given to Richard. It was as though Richard was the culprit here and not Khobragade. Ironically Preet Bahara, the US District Attorney of Indian origin himself, responsible for prosecuting Khobragade, was accused of unfairly targeting Indians.

Then a couple of days ago I read a column in the New York Times entitled “A Maid’s Pay and Moral Choices”, by Ellen Barry (http://nyti.ms/1ij4uKH) . The column highlighted a film made by an Indian, Nishtha Jain in Mumbai, which focused on the relationship between herself and her maid Lakshmi. You can see the trailer on YouTube (http://www.youtube.com/watch?v=BtWK_2jdmGg ). Jain is clearly not uncaring or callous, and calls herself a feminist, but there is strict divide between herself and Lakshmi. The maid sweeps around the feet of Jain who lifts up her feet perhaps without thinking, and later Lakshmi makes tea for both of them but sits on the floor to drink it when there is a spare chair. Jain pays Lakshmi cRS600 per month, that’s £6 or about $10, for 45 minutes a day. One presumes that Lakshmi has other employers. Apparently there are minimum wage statutes pending in the Lok Saba (India’s Parliament) but have stalled.

The film and the Khobragade case got me thinking about my Indian family and their servants. In the early 80s we as a family went on only our second trip to India. For me arriving was a complete culture shock akin to a similar situation in The Namesake film. We stayed in Kolkata at the 3 bedroom flat of my uncle who was then a very senior policeman. It was a unique arrival for us as our uncle was waiting for us at the foot of the aircraft steps and accompanied us through the formalities. I remember being completely jet-lagged; at the time I couldn’t sleep on planes and then slept for almost 18 hours.

After awakening from my deep slumber I got an idea of the household. There’s my aunt and uncle, their two children, a boy and girl, both teenagers, and at leading schools in Kolkata. My aunt speaks to us in Bengali only, and my mother or my cousins have to translate our responses. We are well provided for, 4 meals daily, including the new meal, to me anyway, of tiffin, served in the late afternoon. There is an endless supply of Campa Cola and somehow an Indian equivalent of Corn Flakes has been procured for our breakfasts.

My parents are having a great time; my father visits his former classmates, now often Professors at Calcutta Medical College, and my Mum her relatives all over Kolkata. Together we visit various relatives and there is a trip to Tarakeswar where my father was born. I still remember having the best ever shingaras (Bengali samosas) in Tarakeswar.

After a while one begins to notice servants in all the households we visit. Shockingly to us my aunt has a houseboy, Ranjit, who appears to be about 12. At first it’s rather good to be brought tea in bed in the morning, to be fed before leaving for an early morning flight, and welcomed home with snacks and drinks. I don’t know where Ranjit sleeps, there is no spare bedroom, but later realize he must sleep on the floor in the corridor. My aunt makes the meals but it is Ranjit who does the chopping and all the cleaning up afterwards. My brother asks my mother why Ranjit is there, and she is brutally frank in her response: “If he wasn’t here, his family wouldn’t eat”. It is difficult to argue with that but from a Western background where we make our own tea, our meals, clean our homes it is hard to justify. When we left my father gave my aunt money to give to Ranjit, perhaps trying to assuage some guilt.

Apart from Ranjit the household is reliant on many other servants. There is a permanent car and driver, to take my cousins to and from school, my uncle to work. We are dropped off right outside a cinema and picked up, and earlier in the day someone has been sent to buy the tickets. (Nowadays it is even easier, as one gives the driver a missed call to indicate time to pick up). My uncle has procured another car and driver for the period we are there for the size of the household has doubled. Endearingly one of the drivers calls my brother and me, Chota Sahib and Burra Sahib, a reflection no doubt of our Englishness. But a driver’s life is relatively easy, on duty but working perhaps only an hour a day, as Kolkata is a fairly compact city.

Most days a woman comes to sweep the floors, completely ignored by the household, and a man comes to clean shoes. I remember that at first I refuse to hand over my shoes but my uncle says “Look, we have this service, you should use it”. Although I didn’t see them a washing service must exist too, for all our clothes.

At my mother’s childhood home there is a cook, unfailingly kind, and several other servants. As soon as I arrive I get tea and misti. But some of the expectations of the servants are shocking; I’m playing cricket with a cousin on the roof, sometimes the ball is lost in a rubbish dump at ground level and a middle aged woman servant is sent to recover the ball. However there is affection between the masters /mistresses and servants; on a visit in the mid-90s in the middle of the afternoon after television services were “liberalized” the servants were watching Bollywood movies with my aunt. There was a degree of separation: my aunt was sitting in a chair, and I as a grandson of the house was offered a chair but the servants sat on the floor. All the servants’ lives are an open book: the marriage of one is being arranged and one hears about the qualities of one prospective suitor against another.

Employing servants so cheaply has certain costs: almost everything in the house has to be locked up securely. When my mother stays in her house her handbag with credit cards, cash etc has to be kept behind several layers of padlocks. (One is reminded that in Days and Nights in Calcutta, Clark Blaise’s mother in law spends part of her overseas vacations at locksmiths buying padlocks). In Amit Chaudhuri’s Calcutta he relates how servants can be quite brazen with some being caught in the act of stealing cooking oil and rice. For the single person there are added complications. One cousin with a busy job can only have a cleaner visiting when she is in the house; no one in India would give a servant a key to their flat or house.

There is also the issue of trust particularly when children are involved. Nannies (ayahs) are employed to look after babies and small children, but how can one leave a child with someone almost unknown? A friend in Delhi brought a trusted nanny from West Bengal to look after her young daughter but family problems (more frequent now it seems with mass use of mobile phones) meant the nanny had to return home. With a busy job and life finding childcare was very difficult as my friend was unwilling to trust to a new local nanny.

The level of disdain one might see for servants in Indian homes is also replicated in other environments. In almost every decent hotel or restaurant in India one gets standards of service that are equal to anywhere else in the world. But the Indian customer is often dismissive, rude and insensitive, frequently speaking in grunts, not being able to say thank you or please, and not making eye contact. In Indian eyes the waiting staff, often very well educated, English-speaking, is like a servant. I hope by contrast I am much better; I might have a conversation with a waiter or a coffee barista if there is time, and leave a tip for good service.

Indians coming to the West must have thought they had the perfect life; Western salaries for themselves but paying Indian salaries to their cleaners and nannies. I’m guessing many Indians in the US are now paying their Indian staff appropriately, or employing local staff. Who knows how many Indians will now have to learn how to cook and clean for themselves.