Corruption, bribery and the rule of law

A few years back, as a trainee solicitor, I was asked to write an article / blog on the new Bribery Act just coming into force in the UK (Bribery Act 2010). Unfortunately I never quite got round to writing it and the moment somehow passed.

Bribery and corruption have never, however, gone off the agenda .  In the aftermath of this week's dreadful  Russian plane crash from Sharm el-Sheikh, it now seems possible, or likely, that a bomb in the hold was responsible for bringing the plane down.  On London's LBC phone in radio show  this morning, there were some anecdotes from tourists at the airport(s) in Egypt being able to bypass security with a bribe of as little as £20.  If these anecdotes are true, then clearly this points to a potential way in which a bomb could have evaded security and been placed in the plane's hold.  Further investigation will, hopefully, find out what actually happened.

This brought to mind an interesting discussion on global corruption I heard on BBC Radio 4's 'The Bottom Line'  back in June (podcast currently available at http://www.bbc.co.uk/programmes/b05xhyrr#play).  Evan Davis, the presenter, started the programme with a moral dilemma (don't you just love these?  Political philosophers have them in abundance).  You are at a foreign airport in a poor country on a business trip.  The queue for the passport desk is huge, more like a crush.  Then a smartly dressed man comes up to you and says, 'follow me, we can go to the express queue if you give me $10'.  What do you do?  a. Give him $10 and follow him gladly, b. Smile politely and decline his offer or c. Report him to the FBI for corruption.

This is central to the dilemma businesses face both in the UK and when operating internationally.  Cash exchanging hands in brown envelopes is rarely seen in practice.  What is more common is lavish hospitality or weekends away.  There might also be a 'facilitation' payment.  But at what point does a gift become a bribe?

Egypt was singled out in the discussion as a country where corruption was widespread, where facilitation payments were common and (it was alleged) the clique around the leader and his family were 'above the law' and not subject to the normal rules.  It is seen as impossible to do business in Egypt without a member of the ruling regime as a business partner, possibly paid a 'retainer' to facilitate local contacts.  There is, of course, a great culture of hospitality in Egypt and the Middle East, where relationships are often based on patronage and personal relationships.  Agreements with handshakes, 'my word is my bond', based on a network of social connections may all be commonplace.  But when does this hospitality, trust and flexibility in business based on social connections, become corruption?  It's sometimes a fine line.

The UK Bribery Act 2010 has universal jurisdiction - that is, it applies to UK companies operating abroad as well as foreign companies doing business in the UK.  It is among the strictest legislation in the world.  It introduced strict liability for companies and partnerships failing to prevent bribery, together with strict penalties for either bribing or failing to prevent bribery.  UK  companies therefore have to be very careful when doing business both in the UK and abroad to avoid criminal prosecution.

Ensuring that business is transparent and based on the rule of law, is vital to a country's economic prosperity - and potentially a country's safety and security.  In countries where corruption is rife, it costs the economy millions and keeps that country in poverty instead of prospering.

In India, the Radio 4 panel cited corruption in the telecoms bidding process which allegedly cost the Indian government £100 million equivalent.  That is £100 million not available to spend on vital infrastructure, healthcare and education.  Unemployment and collapse of infrastructure all can result from corrupt practices.  Prominent anti-corruption campaigners in India include Anna Hazare, who famously employs the Gandhian tactic of fasting to achieve publicity for the anti-corruption cause (www.annahazare.org).  There is also the website www.ipaidabribe.com to catalogue and highlight corruption in India.

The rule of law is not a principle of the West, to be foisted on other countries.  I am with Lord Bingham, when he comments that the law might sometimes be an ass, but most people would rather live in a country 'which complies, or at least seeks to comply, with the principle I have stated (ie. belief in the rule of law) than in one which does not'[1] - rich, poor, middling and emerging countries alike - with equality before the law as central.

The advice from the panellists on R4 included: do not accept anything, even a drink or a business lunch (takes away even the perception of preferential treatment), hold business meetings in an office and make sure any relationship with a supplier is with the company and not you as a person.

Next time in an airport queue, think very hard  before accepting any offer of jumping or bypassing the queue, however tempting.

[1] Tom Bingham,'The Rule of Law' 2010  p.9

www.ipaidabribe.com

www.annahazare.org

http://www.transparency.org.uk/

What's in a name?

Jemima Khan (née Goldsmith), it is reported, is considering reverting back to her ‘maiden’ name.  Once divorced, she said she was keeping her married name as she wanted the same surname as her children.  Now her children are older, and Imran Khan (her ex-husband) is re-marrying, the time has come, it seems, to consider changing her name back.

Surnames for women have, to my mind, always been problematic. As a child, it was already in my consciousness that one day my surname might be different.  This caused some uncertainty.  For example, once I had a savings account I decided I needed a signature of my own.  So I invented one and practised it – but with always the proviso at the back of my mind that I might have to change it one day if, or when, I got married[1].  Surnames for women are only borrowed, never owned.  First, you have the surname of your father and then, on marriage you assume the surname of your husband.  So, where are you in all this?  A conduit for the continuity of the male lineage, never a person in your own right with a title to confer to future generations.

So, I decided that on no account was I going to change my surname.  It was my name (albeit that of my father’s) and, while not the most exotic sounding name (‘Jackson’), it was mine.  It was a matter of principle.

Then, in my 20s, friends starting getting married – and all changed their names immediately to their husbands!  Why?  Did they not feel a sense of betrayal to the principle, the cause?  Apparently not (unless in a situation like my Pakistani friend, where cousin marriages are common, who already shared the same surname as her future husband – problem solved!)

For my son (whose father I was never married to), I opted for a double barrelled surname with both father’s and mother’s.  This worked well in his case as they went well together.  Actually, it never occurred to me that this might not be my choice – the UK, in its typical liberal muddling-through kind of way, has no prescriptions about changes of names or what you should call yourself.  It’s up to you, albeit heavily influenced by tradition and convention.  For my son’s first name, I chose ‘Ewan’ – to bring back my mother’s maiden name of ‘Ewen’, now lost as there was only her and one sister.  I realise the spelling of ‘Ewan’ is not quite the same – but therein lies a tale that perhaps is best not told in this space.

My son’s middle name (and his father’s first name) comes from the Northumberland tradition of turning the grandmother’s maiden name into the first name of the grandson – which seems an interesting adaptation to keeping the matriarchal lineage alive [albeit in my son’s father’s case he was further named after an uncle who died during WW2).

Using a double barrelled surname for my son seems to work quite well - for example, in travelling abroad.  Coming back to the UK this summer after a trip to abroad, I checked through immigration with my son.  I was asked what my relationship was with my son: of course I said he was my son.  This was unproblematic as he had my surname as half of his surname – a more problematic question if my surname was completely different to his.

This reflection on surnames was actually prompted a while back, on reading a ruling from the Mumbai High Court in 2012.  The Times of India reported that women can now retain their maiden name after marriage[2]. Prior to the amendment, it seems, the court would not accept divorce, or related applications, from women unless they bore their husband’s surname.  After the ruling, however, a woman can file for divorce in her maiden surname, married surname or any other name she may have adopted.

This follows a French ruling in 2003 that allowed parents to give their children the father’s surname, the mother’s surname or the surnames of both parents in whatever order they chose.  This was, unfortunately too late for the De-Ram-Berou children as the ECHR decided it could not be applied retrospectively and was not upheld in that court[3].

Another 2013 ECHR judgement ruled that the impossibility of married women to use their maiden name in Turkey did amount to a violation of Article 8 (right to privacy and family life) in conjunction with Article 14 (prohibition of discrimination).  They ruled that the difference in treatment between men and women (men could keep their surnames) amounted to discrimination and had no objective and reasonable justification [3]

This is a welcome advancement from the normal cultural practice of adopting the husband’s surname – or indeed, on marriage, often in India, of adopting a completely new name, both first name and surname, presumably to signify the re-born status of the newly married woman, fully integrated into her new family.

But in another – closely associated part of Europe – the opposite exists.  My Serbian friend, on marrying her Peruvian husband, followed the Spanish tradition.  This is where the woman keeps her own surname, because she is not of his own genetic family.  So, for example –hypothetically – if I were to marry Susen, I would be known as Sue Jackson de Sarkar, not as Sue Sarkar as I would be in the UK.  To my mind, that’s slightly more female friendly – although there is still a sense of ownership involved – that you are ‘of’ someone.  I believe the tendency now is more towards both men and women in Spanish speaking countries having 2 surnames – one from their father and one from their mother, and neither party changing their names on marriage.

Perhaps, though, we should not be so rigid about holding on to our given names.  In my involvement with the Triratna Buddhists (formerly the FWBO) in my 20s – on ordination, people were given a Buddhist name (ie. Pali name – from the language spoken by the Buddha at that time, closely associated with Sanskrit).  From that moment on, they had to be addressed by their Buddhist name, not their former first name.  I really did my best to go along with this but, I must confess, at times, it just felt weird.  It was perhaps exacerbated by (mainly) white British people suddenly adopting a Pali / Indian name – Dayasri, Punyavati, Srimati, Gunabhadri, Suryagupta, Dhammachandra, Prajnagupta and so on.   My mother refused point blank to refer to an old school friend of mine – Garry – as ‘Dhammavijaya’ once he was ordained.  I briefly tried to reason with her, before giving up.  So now, I refer to him as ‘Garry’ with her and ‘Dhammavijaya’ with everyone else.  Just makes life easier.

Still, the confusion this name changing causes continues even now, on contacting old friends and acquaintances from my Triratna / FWBO days.  Not only have they adopted Pali names on ordination, but then quite a few have married as well and changed their surnames to their husband’s.  So, with both first name and surname changed, it becomes virtually impossible to identify the person you once knew.

Should names evolve, as we evolve and mature throughout life?  Why do we necessarily cling to a given name at birth by own parents, when it might not reflect who we truly are, the core of our being?

I remember going to the funeral in Birmingham of the brother of a (Buddhist) friend of mine.  She had changed her name on ordination, and always referred to her brother as ‘Anthony’.  Sadly, her brother died at a relatively young age and I attended the funeral in Birmingham.  Imagine my bewilderment then when I attended his funeral and they kept referring to him as ‘Sidney’.  I thought I was at the wrong funeral.  But, on questioning my friend afterwards, she said yes, Sidney was his name but she always preferred to call him by his middle name Anthony.  For her, names were fluid, contingent on the times and on the occasion.  In fact, when she came over to the UK from the Caribbean as a child, she had mulled over what surname to use.  Her father had died, so she decided to use her grandmother’s surname on her passport.

So, maybe names are more fluid than I have been led to believe?  Yes, I was called Susan Jackson at birth – but that was before either of my parents had any idea who I might turn out to be, or what my personality was.  Should we all have contingent surnames?  And first names?  How many times should we be able to change our names?  And decided by who?  An opportunity or a curse?

[1] I am still using the same signature today

[2] Times of India 26/02/2012

[3] Leventoğlu Abdulkadiroğlu v.Turkey - ECHR 160 (2013)

[3] European Court of Human Rights – ECHR 267 (2013).  19.09.2013.

Girl Summit 2014 - London

I had my first serious relationship at the age of 17. If anyone had suggested that we get married at that point, my reaction would have been one of complete horror and bewilderment.  Why on earth would I want to do that?  I had plans – to go to university, to travel, to pursue a career, to meet interesting people, to get out of the suburban mundanity I had been brought up in.  Marriage was nowhere on my agenda.  As with many teenage relationships, it didn't last and we split up after 18 months.  By the time I eventually had my son at the age of 35, I had lived a bit, pursued some of my ideals and dreams and was ready to take on the responsibilities of parenthood.  I could also be a better mother because of my education and life experience.

I realise now that I was lucky.  I took my freedom for granted - never questioning my ability or right to be able to choose my own partners or do what I wanted – resources permitting. All over the world, millions of children have no choice over whom or when they marry.

Child marriage is defined by Unicef as marriage before the age of 18 and considers this practice a violation of human rights.  India tops the league table of rates of child marriage. Mahatma Gandhi himself was married at the age of 13 to Kasturbai, aged only 14.

My own son is nearly 13.  He is still growing, changing and finding out about himself and the world.  Like many teens and pre-teens he spends his time at school or playing numerous video games or browsing You Tube.  The idea that he should be married at his age, or thereabouts, just seems unbelievable and very premature.

Today, Girl Summit 2014 was co-hosted in London by UNICEF and the UK Government.  Their stated aim is to end female genital mutilation, child, early and forced marriage within a generation. In 2010 13.5 million children were married before they were 18.  In the developing world 1 in 7 girls are married before they were 15, with some as young as 8 or 9.  This can have devastating consequences.  For example, in the Yemen, last September, an 8 year old girl was reported to having been married to a 40 year old groom.  During intercourse on the wedding night, the 8 year old’s uterus ruptured and she later died as a consequence.

According to Unicef figures, around 43% of women in India aged 20-24 are married before the age of 18[1].  This may be to partners they don’t know, or haven’t consented to marry.  For the boys / men it can be a burden to have to then provide for their wife and consequent children at such a young age.  For the girl / woman, however, the impact can be life altering and life constraining.  Forced into premature sexual intercourse with their husband, this can amount to rape.  Commonly the girl then stops any education and her life is taken up with childcare and domestic responsibilities, with little opportunity for herself outside the home.  Early childbirth can also be damaging for immature bodies not capable of bearing a child leading to complications and / or low birth weight babies.  The women too are also at risk from domestic violence, compounded by their vulnerable status as child brides.

This is a problem for the women in India, but also a problem for girls and women in the UK.  Every year thousands of girls in the UK face being taken out of school on ‘family holidays’ to Pakistan, India and other place, only to find out they are to be married.  This morning I was listening on the radio to the story of a woman from the UK who was married off at the age of 13 in Pakistan – against her knowledge, consent or will – only to give birth to a son at the age of 14 on returning to the UK.  At the time, no-one questioned it or raised it as an issue.  She managed to escape and, now in her 40s, campaigns against child and forced marriage – with the price of being disowned by her family.

Last year the UK government’s forced marriage unit dealt with 1032 cases.  Of these 82% of victims were female and 18% male while 15% were under the age of 15.  The cases involved 74 different countries with 43% relating to Pakistan, 11% to India and 10% to Bangladesh[2]. To a Western audience, it is inconceivable that a girl or woman should have no choice but to marry someone not of their own choosing or without their consent.  This is not a question of cultural relativity: it is a question of human rights.  It’s a gross violation of children’s rights to make them marry someone – with a sexual relationship to follow and childbirth – that usually means an end to the girl’s education and a lifetime of rape or non-consensual sex, childrearing and domestic duties.

Worldwide more than 700 million women were married as children, with 1 in 3 of them married before their 15^th birthday.  About a third of child brides live in India. Female genital mutilation (FGM) has been illegal in the UK since 1985, and since 2003 anyone taking someone out of the UK for FGM has been punishable by up to 14 years in prison[3]. Enforcement of these provisions, though, is woefully lacking to date.  A new law also came into effect in the UK on 16 June 2014 making it a criminal offence, punishable by up to 7 years in prison for parents who force their children into marriage – though it remains to be seen how rigorously this new power will be used or enforced.

In India, the Prohibition of Child Marriage Act states that girls can’t get married before the age of 18 and boys before the age of 21 – although this is widely ignored.  Many campaigners were disappointed last October at India’s refusal to sign the first-ever global resolution on early and forced marriage of children led by the UN Human Rights Council.

I am inclined to be cynical about David Cameron’s stated commitment to Girl Summit Day – given his blind spot to women colleagues in the recent past.  But let’s hope FGM and forced /early marriage will become as unacceptable as torture or imprisonment without a trial (or unfair trial) for this is what it is.

For development to be effective in India, women must be prioritised.  Women are the ones who look after, educate and care for the medical needs of our children in their early years.    By allowing women to pursue an education, freedom in whom they marry and rights within the marriage, it is a service to themselves, their children, community, husbands and humankind.  

http://tooyoungtowed.org/

https://www.gov.uk/government/topical-events/girl-summit-2014

http://www.girlsummitpledge.com/ 

http://www.karmanirvana.org.uk/

[1] http://www.unicef.org/india/Child_Marriage_Fact_Sheet_Nov2011_final.pdf.  Accessed 22/07/2014

[2] http://www.bbc.co.uk/news/uk-27830815

[3] Ibid.

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.

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[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.

Sex, morality and rape in modern India

I remember on my first visit to India being struck by the seeming chaos of everyday life in the towns and cities.  Creative traffic rules, along with much beeping of horns ruled on the roads, cows wandered freely in the middle of roads, their Hindu sacredness hopefully protecting them from harm. Occasionally naked and ash-covered sadhus were seen communing with their God amidst the urban commuters and street kids.  Western hippies in the 70s (and beyond) were drawn to the rawness of everyday life, the reliance on karma and God, seeming tolerance of difference and freely available drugs – as an antidote to the rational, industrial, sterile and suffocating West.

But this apparent anarchy belies the very conservative underpinnings of Indian society, particularly when it comes to women and how they should behave.  Despite Bollywood more recently showing on-screen kissing and live-in relationships (such as Nikhil and Ambar in Salaam Namaste), notions of family honour and shame are still prevalent and pre-marital sex very much frowned on.

On 6 January this year, it was widely reported that a judge in a Delhi court ruled that sex between two adults on the promise of marriage did not amount to rape[1].  Apparently a man, employed in a multinational company had been accused of rape after his female partner had sex with him after he promised marriage.

Judge Virendar Bhat was quoted as saying,

‘In my opinion, every act of sexual intercourse between two adults on the assurance of promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy…..When a grown up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promise that he would marry her, she does so at her own peril.  She must be taken to understand the consequences of her act and must know that there is no guarantee that the boy would fulfil his promise.’

‘He may or may not do so.  She must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion.  No religion in the world allows pre-marital sex’.[2]

This needs some explaining, particularly to a Western audience where pre-marital sex is normal.  No of course it is not rape, I am thinking.  Rape is where sex, or forced penetration of an object into an orifice, is done without consent - or so you would think.

In India, however, these cases are known as ‘false-promise’ cases, which reflect the social stigma that exists – mainly for women – of pre-marital sex.  Typically in these cases, a woman enters into a sexual relationship with a man if he promises to marry her.  If he then later reneges on this promise and doesn’t marry her, she can then accuse him of rape – on the basis that her consent to sex was gained using deception.  Several Indian Supreme Court rulings have held that consenting to sex ‘under a misconception of fact’ (such as an insincere marriage proposal) would constitute rape[3].  To try to avoid the stigma then of having had pre-marital sex, particularly if pregnant, the main tool the woman has is to file an allegation of rape to force her male partner to come back and marry her[4].

One reported example is the case of Rashmi, an architect and her long-term boyfriend Alok.  They had met 5 years previously while working in a Delhi office.  Alok’s family, however, wanted him to marry a local village girl and disapproved of him marrying Rashmi.  When Rashmi found she was pregnant, she pressured him to marry her – to avoid the stigma of having a child out of wedlock.  When he refused, she filed a rape complaint against him.  The strategy worked and they eventually got married – against Alok’s parent’s wishes - and now have a baby daughter[5].

As sexual relationships outside marriage become increasingly common – particularly in urban areas – allegations of ‘false-promise’ rape have also increased.  It is now the leading category of rape in Maharashtra – with a 15.8% increase in cases filed in 2013 from the previous year[6].

The case law in India on sexual relationship and rape seems to be increasingly confused – probably reflecting the friction between traditional conservative values and the more secular westernised values found in the larger cities such as Delhi and Mumbai.  Inevitably the West is blamed for this cultural shift, with a Delhi court last year saying live-in relationships were immoral and an ‘infamous product of Western culture’[7].

From a Western liberal standpoint, I have to agree with Judge Bhat in that pre-marital sex between two adults does not amount to rape if a promise of marriage is not fulfilled, even if his language is somewhat patriarchal and old-fashioned.  In the judgment he talks about a ‘grown up, educated and office-going woman’ ‘subjecting herself ‘(my italics) to sexual intercourse, and doing so ‘at her own peril’.  It is a shame if the woman really does ‘subject herself’ to anything, rather than having a sexual relationship based on freely given consent, as an expression of love and for the mutual enjoyment of both parties – as I (perhaps old-fashionedly) still tend to think.  Within marriage or not.

But Judge Bhat is wrong to say that pre-marital sex is ‘against the tenets of every religion’.  In a previous case, the actress Kushboo was accused of outraging public decency by saying in a 2005 interview that it was not wrong for women to have pre-marital sex as long as they took precautions[8].  In that case, the Indian Supreme Court endorsed the right of unmarried couples to live together, stating, ‘When two adult people want to live together, what is the offence?.....Living together is not an offence.  Living together is a right to life’[9].  They also pointed out that even Hindu Gods Lord Krishna and Radha were co-habiting lovers – forming a precedent even within Hinduism.

Buddhism also has little to say specifically about sex outside marriage.  Whilst Buddhist monks and nuns tend to be celibate, for lay Buddhists the main ethical guideline is the third precept, to ‘refrain from sexual misconduct’ – or in its positive form, to cultivate ‘stillness, simplicity and contentment’.  These are not commandments, but ethical guidelines.  Buddhists tend to interpret this as trying to act in a kind and loving way to any sexual partner – whether inside or outside marriage – with no specific guidelines on marriage or not (a contract, not a sacrament, in Buddhism).

Furthermore, to espouse principles of morality based on religion also ignores the increasing number of atheists, agnostics and non-religious who follow secular guidelines.  The Indian state itself is secular and surely judges are there to interpret and apply the law (which hopefully is based on morality) rather than issuing moral guidelines and appealing to religious codes of behaviour?

The more of these contradictory judgments that come from Indian courts, the more confusing the legal and ethical guidelines seem to be.  For recent cases, we now have, in summary:

• The case involving Kushboo in 2010 where a Supreme Court upheld that it was not an offence to live together before marriage and that it was not the job of the criminal law to punish those expressing unpopular views

• The case of Aysha v Ozir Hassan in 2013 where the Madras High Court held that all sexual relationships were in the nature of a marriage and carried the consequences of a marriage (see my blog about this case here).

• The Supreme Court judgment in December 2013 overturning a 2009 Delhi High Court ruling, and re-criminalising homosexual sex (see my blog about this case here)

• Then this latest ruling saying that pre-marital sex is ‘immoral’ and against the ‘tenets of every religion’ but does not necessarily amount to rape (based on a false promise).

The one glaring omission in Indian legislation is that rape within marriage is still legal, on the basis that the woman (and presumably the man) have given their consent to sex on marriage – seemingly at any time, coerced or not, whether she feels like it or not.  Who on earth would agree to such a distorted marriage contract on that basis?  - that in doing so, you give up completely your control over your own body and when, where and how you have sex?  Anecdotally, you come across some horror stories of how some Indian brides are treated by husbands who think they ‘own’ their wives bodies by virtue of her being financially dependent on him.

In India, therefore, it seems now that consensual pre-marital sex may be rape if based on a false promise – but not always, and may be immoral or not - depending on which court you believe.  Pre-marital sex may also give rise to a marriage-type relationship, with all the associated rights and responsibilities - again depending on the court. Consensual homosexual sex was a criminal act until 2009, then wasn't but now is again.  But forced non-consensual sex within marriage cannot be rape – and is not only legitimised but also not immoral as it is within marriage.  There is no logic.

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[1] http://www.bbc.co.uk/news/world-asia-india-25618163. Accessed 14/01/2014

[2] Ibid

[3] http://online.wsj.com/news/articles/SB10001424052702303460004579192040826366178.  Accessed 14/01/2014

[4] This is a very different situation from laws elsewhere – such as in Morocco – where a male rapist can escape prosecution by marrying his victim, to protect her family’s ‘honour’.  This was recently highlighted in the suicide of 16 year old Amina al-Filali in Morocco, 7 months after she had been forced to marry her rapist.

[5] Supra note 3

[6] The Times of India, 18 Nov 2013

[7] BBC News India, 6 Jan 2014

[8] BBC News, 24 March 2010

[9] Ibid

Cornelia Calling

I had somehow subscribed or been subscribed to a newsletter listing the Kali Theatre’s future performances and two in particular stood out: Cornelia Calling and Twelve, on 'honour' killings. The Kali Theatre specialises in producing plays written by Asian women. For various reasons, well my failure to note the correct time, we’d missed Twelve but on Friday we had seen Cornelia Calling. For us it pushed a number of potential buttons: my interest in history generally, Sue’s personal interest in feminism and professional interest in law.

The Tristan Bates Theatre is a rather non-descript building near Leicester Square looking like an office. Like Asia House no tickets are required but akin to a private party one’s names are listed.  As usual we were early and killed some time in the bar before the performance.

The theatre is probably the smallest I have ever attended and seated perhaps 100 people.  The set was rather spartan, with just a table and chairs, and a piano. As we entered the theatre the cast were already in situ. As soon as the audience were settled the play or the reading began. The performance was described as a “reading”, with the actors reading from scripts and it was rather similar to a rehearsal.

Cornelia Calling is based on the life of Cornelia Sorabji, an Indian Christian Parsee from Bombay who is believed to be the first woman to read law at Oxford in the 1890s. While she read law she did not receive a degree because she was a woman.  After “graduation” Cornelia split her time between India and the UK, and was often unable to practise law because of her gender.

Much of the reading revolves around Cornelia’s meetings with her friend Mary while students at Somerville College in Oxford, and at times during their lives.  Like Cornelia Mary is also an outsider, from a Geordie working class family. Through their conversations we learn about Cornelia’s background, her motivations in studying law and her life and career after Oxford.  There were two other actors who played various roles including Hindu women in purdah who had been exploited by male advisers and looking to Cornelia’s mother for advice, and Gandhi, who had met with Cornelia, as well as other roles including the narrator.

Most of Cornelia’s life is presented as a struggle, and fighting against the odds.  Even within India she was often regarded with suspicion for coming from a Christian background and for having a mother from a low-caste.  On her return to India Cornelia is forced to work as an informal legal adviser unable, despite some influential supporters, to be allowed to appear as an advocate in her own right.  However, Cornelia was later allowed to practise after legislation was passed in India to enable women to become barristers.

One of the main set-pieces of the reading is a meeting between Cornelia and Gandhi in 1931 in London.  The conversation on stage was recently replicated in The Telegraph.  The two had many elements in common, British educated, and trained in the law, with both unable to practice at times.  Cornelia comes across as a devoted Anglophile opposed to full Indian independence but supportive of dominion status, similar to that of Canada and Australia.

Cornelia castigates Gandhi for being unable to restrain his supporters from engaging in violence despite his non-violent ethos.  She also criticises Gandhi for presuming he represents all Indian opinion; she suggests he only represents the educated and upper classes.  While the independence movement and the Indian upper classes encompassed a wide range of viewpoints I doubt if many would have opposed full independence as Cornelia appears to.

In one of their conversations Mary asks Cornelia “Are you English or Indian?”  The mere fact the question was asked indicates some level of ambiguity.  One is reminded that both Gandhi and Nehru aped Western habits certainly in terms of clothes in their formative years, and Gandhi’s austere lifestyle was heavily influenced by radical vegetarians in the UK when he came to study for the Bar.  Indeed Nehru referred to himself as the “last English ruler of India” perhaps not anticipating that his daughter Indira would become Prime Minister, and the language of the Nehru household was English and not Hindi.  One cannot now imagine an Indian leader making Nehru’s “tryst with destiny” speech in English.

Cornelia’s relationships receive rather cursory treatment, although her friend Mary does propose a lesbian relationship which Cornelia rejects.  There is a suggestion of a relationship with a married lawyer in India, although it is not clear whether the man is Indian or British.

Cornelia’s life is indeed one that warrants exploration principally because of her almost continual battles with male dominated and perhaps misogynistic institutions and professions. At almost every stage in her life there are barriers to be overcome: getting to university in Bombay, a place at Oxford, her putative relationship with a lawyer in Allahabad, and being prevented from practicing.  Some of these situations and incidents could have been an entire play in their own right particularly the encounter with Gandhi.

My own feeling was that Cornelia’s life could have been better portrayed more narrowly and that the format tried to cover too much ground thus giving the audience little of substance.  We had relatively little of Cornelia’s motivations, in particular in taking up the law although there was a focus on unrepresented Hindu women, her seeming lack of feminism, and her Anglophilia.  Cornelia’s passions did not manifest themselves explicitly.  I also found the relationship with and the background of the fictional Mary rather contrived although I do understand that the conversations were necessary for purposes of exposition.  I wonder how many women from working class backgrounds would have made it to Oxford in the 1890s.

Overall a production deserving of a wider audience albeit with some reservations.

http://www.telegraphindia.com/1110522/jsp/7days/story_14013867.jsp - Cornelia’s meeting with Gandhi

www.kalitheatre.co.uk

India takes one giant leap backwards

What a confused world we live in.  That could be a general statement but today it is confusion over sexuality – in particular homosexuality.

On 27 November in the UK we had the Supreme Court judgment in the case of Bull v Hall[1].  This was the case of the Christian hotel owners who refused a double-bedded room to a same sex couple.  This case has been portrayed as one of gay rights against the couple’s right to manifest their religion – and in this case, gay rights won.  In fact the arguments were a little more nuanced than that (as you might expect from a Supreme Court ruling) and if interested, Alasdair Henderson, barrister at One Crown Office Row chambers has written an interesting commentary on this case in the UK Human Rights blog[2].

Then yesterday, it was reported in the UK that gay marriages can take place from 29 March 2014 – earlier than expected following the commencement of the Marriage (Same Sex Couples) Act 2013 in July of this year.  This Act legalising gay marriage (as opposed to civil partnerships) had been strongly supported by David Cameron, leader of the same Conservative Party that had previously introduced the notorious Section 28 of the Local Government Act 1988, prohibiting local authorities from intentionally promoting homosexuality.  How times change. (One might also note this Act has been opposed by  the Roman Catholic Church in England and Wales, the Muslim Council of Great Britain and the Network of Sikh Organisations.  So much for tolerance and goodwill to all men and women).

So far, so good for gay rights and human rights in general.   Then today, in a truly backward step, news from India that their Supreme Court had overturned a 2009 Delhi High Court ruling and recriminalized homosexual sex.

India inherited its penal code from their former colonisers, the British. Section 377 of the Indian Penal Code 1860 states:

'Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine'.

This doesn’t explicitly include homosexual sex and immediately begs the question what exactly is ‘carnal intercourse against the order of nature’.  In 1884 the meaning of this was restricted to anal sex, by 1935 had broadened to include oral sex and later judgments have interpreted it further to include ‘thigh sex’[3].   The Court in the 1935 case of Khanu v Emperor seemed to limit legitimate intercourse to only those acts that could lead to conception – ie.vaginal penetrative sex between a man and a woman.  So, lesbian sex, oral sex (between any couples – including presumably married heterosexual couples) and anal sex (again between any combination of consenting couples) would be illegal. Commentators have argued that, although few prosecutions against gay people have actually taken place under section 377, the social effects of discrimination against any form of sexuality outside married heterosexual sex, together with moral disapproval, has permeated Indian society and legitimized prejudice and discrimination against minorities.

The 2009 Delhi High Court judgment in the case of Naz Foundation v Union of India (2009) was therefore a landmark judgment and victory for LGBT campaigners in India – de-criminalising consensual sex of whatever nature between adults in private.  In particular the Court ruled that Section 377 was against Article 15 of the Indian Constitution, which prohibits any discrimination on grounds of sex, religion, caste or place of birth.  The concluding paragraphs of that judgment are worth quoting[4]:

129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, "Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future." [Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65].

130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants' or 'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.

We allow the writ petition in the above terms.
CHIEF JUSTICE
S.MURALIDHAR, J

JULY 2, 2009

Today’s Supreme Court judgment, in reversing this decision, has had very mixed reaction in India.  Mohammad Abdul Rahim Quraishi, spokesman of the All India Muslim Personal Law Board is quoted as saying,  ‘We are very happy with the judgment. There is no space for homosexuality in our social setup. It is a sin, it is a heinous crime’.  K. Radhakrishnan of Trust God Ministries, said ‘Homosexuality is a Western phenomenon. It has polluted the minds of young Indians. The court has recognized this. We are very grateful’[5]. Just pausing for a moment here: so K.Radhakrishnan is very grateful for a judgment upholding a section of the penal code introduced by the British Victorian colonial powers, because homosexuality is a Western phenomenon which has polluted the minds of young Indians.  Oh dear.

For Subramanian Swamy, however, of the Bharatiya Janata Party, homosexuality is a ‘malfunction of the human body and should be treated medically’. He goes on to say, ‘I welcome Supreme Court judgment holding homosexuality as illegal. It is no accident that men and women are born in equal proportion. Moreover survival of the human race requires one man one woman cohabitation. The government and corporates must fund research to find a cure for homosexuality at the earliest. It is a malady that should not be celebrated but cured with compassion’[6].

For all the LGBT activists, however, and many other supporters, this has been a retrograde step, and even shocking in the 21^st century when LGBT rights are being recognized and codified elsewhere.  The well-known novelist Vikram Seth, a long campaigner for LGBT rights said, ‘Today is a great day for prejudice and inhumanity. And a bad day for law and love. But law develops and love is resilient. And prejudice and inhumanity will be beaten back. And Law and love will prevail. The judgement is a disgrace[7]’.

Colin Gonsalves, Indian Supreme Court advocate and Founder Director of Human Rights Law Network said, ‘This is a day of mourning for all Indians. The 2009 High Court ruling was one of the finest judgments for minority rights and for inclusion. This is a wrong and retrograde approach to fundamental rights. That the legislature should take it up and not the court is an obsolete notion. The Supreme Court has said 500 times in different judgments that it is the duty of the court to intervene when there is a violation of fundamental rights’[8].  And let's not forget this is potentially criminalising oral sex between married heterosexual couples - punishable by up to life imprisonment.

I could not find the actual judgment of today’s Indian Supreme Court but once it is made available, it will be interesting to read the legal reasoning behind this retrograde judgment.  I find myself frustrated at the persistent discrimination against homosexuality in India (of course not universally held), especially in a country that prides itself on being the world’s largest democracy and seemingly with ambitions to become more of a global economic power in the world.

Homosexuality is not a ‘Western’ phenomenon that has been exported around the world.  It is a human phenomenon that is present in all societies, whether legitimized or not.  When the rest of the world is finally recognizing the human rights of all, regardless of sexuality, it is sad to see India take two steps backwards, away from non-discrimination, equality and inclusiveness.

Tweeter Meena Kandasamy summed it up: ‘In India, pre-marital sex = marriage (see my blog about this case here), homosexuality = illegal, marital rape = sex’ (rape within marriage is still not criminalized in India).

We hope for change.

 

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[1] Bull and another v Hall v another [2013] UKSC 73

[2] http://ukhumanrightsblog.com/2013/12/11/gay-discrimination-and-christian-belief-analysis-of-bull-v-hall-in-the-supreme-court/#more-20707 Accessed 11/12/13

[3] From http://iheu.org/content/hated-section-377-indian-penal-code. Accessed 11/12/13

[4] Full text that judgment can be found here.

[5] Quoted in Outlook India at http://blogs.outlookindia.com/default.aspx?ddm=10&pid=3096&eid=31. Accessed 11/12/13

[6] Ibid

[7] Quoted at http://blogs.outlookindia.com/default.aspx?ddm=10&pid=3097&eid=5. Accessed 11/12/13

[8] Ibid

Caste in the UK

 

Last Saturday saw hundreds of people gather in Central London to demonstrate against caste discrimination in the UK - we passed the demonstration in Whitehall.

This issue came to prominence earlier on this year when the House of Lords voted to include discrimination on the basis of caste in the Equality Act 2010 as an aspect of race (see my previous blog about this at http://www.indiainlondon.com/caste-discrimination-in-the-uk/).  The Government, previously opposed to legislation, relying instead on an educational programme, finally backed down and agreed to include caste discrimination in the Equality Act.  On 10 October this year, recognition of caste discrimination gained further support on an international level when the European Parliament (including support from UK and Irish MEPs) passed a strongly worded resolution on caste discrimination, condemning the numerous human rights violation committed against Dalits ('untouchables') and other groups affected by caste.

Since then, however, the Government seems to be stalling on the proposed legislation, saying that it doesn’t expect measures to be introduced to Parliament until the summer of 2015, citing the necessity of comprehensive consultation on the issue.

Widespread caste discrimination is clearly an issue in India (despite its own legislation making caste discrimination illegal), with Dalits often consigned to menial, low paid occupations others do not want to do.  A UK government report in 2010, however, also showed widespread caste discrimination here in the UK, providing further evidence for the need for inclusion in the Equality Act.

Despite this evidence, together with national and international support for legislation, it has received strong opposition from Hindu groups in the UK such as the Hindu Council UK and Hindu Forum of Britain.  It may be that lobbying from these groups (seen by many to be a stronghold for ‘upper caste’ Hindus) is causing the government to try to sideline and stall the proposed caste discrimination legislation.

There seem to be a number of arguments put forward by British Hindu advocacy groups opposed to caste legislation.  The first seems to be that although it is acknowledged that caste is not confined to Hinduism, nevertheless Hindus in the UK are the real focus of anti-caste campaigners.  Not only this, but backing of organizations such as Dalit Solidarity Network UK and Castewatch UK by churches and Christian groups aims to undermine Hinduism and gain converts to Christianity.  Foreign money going to fund Dalit converts in India is seen as part of this neo-colonialist Christian attack on Hinduism.

Secondly, it is argued, the whole concept of caste is a European construct of Hinduism, originating in the 17^th century and nothing to do with India or the underlying philosophy of Hinduism, which is in fact caste blind.

Thirdly, if caste affiliation still does exist in the UK, it is more akin to identifying with a clan or club, there to provide mutual help and support – but not in a hierarchical or discriminatory way.

Finally, Hindu groups argue that British Hindus have largely eradicated caste awareness in 2 generations of settlement in the UK, and any remaining problems or issues can be solved through education, not legislation.  It is therefore just a matter of time before caste is no longer a part of British Hindu society.  They argue that legislating against caste discrimination just makes it more of an issue again, rather than letting its significance fade with time.

While acknowledging that caste discrimination in the UK is nowhere near the level in India itself, it is difficult to reconcile these arguments with the accounts of discrimination in what research has been done, together with many more personal anecdotes.  These range from ‘high caste’ Hindus refusing to touch ‘low caste’ Hindus (for example in shops, or in a care setting), bullying and name-calling among school children to discrimination in employment.  With all types of discrimination it is always difficult to identify and pinpoint the more subtle aspects, such as use of language, tone of voice or even attention given to an opinion.  All these, however, can contribute to low self esteem, poor promotion prospects and mental health issues if not confronted.

It is also worth remembering that one of the most prominent campaigners against caste, Dr B.R. Ambedkar, did not advocate conversion from Hinduism to Christianity (or even Islam, or Sikhism) but instead to Buddhism - followed by many thousands of his followers in India.

It also need not be either legislation or education, but could be both.  Legislation sends a clear signal to the UK population that caste discrimination will not be tolerated, raises awareness of potential issues involving caste, and also sets an example to the rest of the world that caste is a human rights issue and discrimination of the worst kind.





 

World Mental Health Day - mental health in the UK and India

10 October is World Mental Health Day – a day first celebrated in 1992, designed to bring awareness and understanding of mental illness and disability and its effects on people worldwide.

In the UK, it is estimated that in any one year, 1 in 4 people will experience a mental health problem.  So, out of every 1000 people, 300 will have a mental health problem,  230 will visit a GP, 201 will be diagnosed as having a mental health problem, 24 will be referred to a specialist psychiatric service and 6 will become inpatients in psychiatric hospitals.[1]  Whilst well-known personalities such as Stephen Fry, Alastair Campbell and Ruby Wax who have suffered with mental illness, have done much to publicise and de-stigmatise the issues, many people still suffer without receiving the help they need for fear of adverse reactions from family or employers.

Mental illness is a type of disability – sometimes referred to as a ‘psychosocial disability’ [as opposed to a learning, or other kind of, disability].  Disability has long been characterized according to a ‘medical’ model, seeing the person with a disability as flawed and vulnerable and therefore in need of medical treatment, service provision or charity to give needed social protection.  Disability is therefore individualized and classified as a deviation from the norm. Campaigners such as Mike Oliver[2], however, have argued for a social model of disability, which locates any limitations experienced not in the individual but in society.

Mental health legislation in the UK has undergone an overhaul in the last 8-10 years, resulting in the amended Mental Health Act 1983 (MHA) in 2007 and the introduction of the Mental Capacity Act in 2005.  While some new safeguards were introduced in the MHA 2007 (such as for treatment with ECT or psychosurgery), much of the legislation was left intact, with the focus on detention and treatment (by force if necessary) of mentally ill people in order to protect either themselves or the public.  There continues to be huge publicity over violent criminal acts committed by people with mental illness (such as the recent stabbing of Christina Edkins on a bus in Birmingham) and while these cases are shocking and tragic, they are fortunately very rare.   Figures from the UK Royal College of Psychiatrists help to put this into perspective: for every citizen killed by a mentally ill person, 10 are killed by corporate manslaughter, 20 by people who are not mentally ill, 25 by passive smoking and 125 by NHS hospital acquired infection (2004 figures).

If mental health issues in the UK are underfunded and stigmatised, the situation in India is worse.  Whilst in the UK, many are concerned about over-treatment, and the right to refuse treatment (for example if sectioned in a psychiatric hospital), the emphasis in India is more about the right to access and receive appropriate treatment.  In May this year, the BBC reported about a man who had been incarcerated for more than a decade in southern India.  The man, Keshava, had suffered with mental health problems and for years his family tried to get him some help.  Eventually they could not cope, so took to hiding him in a room when people visited and then bricked it up, imprisoning him in there with only a tiny opening for ventilation and through which to serve food.  Eventually, the authorities heard about the case and broke into the room – to discover Keshava still alive, but who seemingly had not washed or had a hair cut for a decade.[3]

Of course these cases are extreme, but it does serve to highlight the lack of help or resources.  A 2005 report in India by the National Commission on Macroeconomics and Health estimated around 65-70 million people in India have a mental illness, and this excludes common mental disorders.  There was an estimated 70-80% treatment gap for mental disorder.  There is only one psychiatrist for every 400,000 people in India – one of the lowest ratios in the world and there are thought to be more Indian psychiatrists working in the US and the UK than in India.  Psychiatry is still very much the poor relation in medical career choices, with doctors saying it is often treated as an after-thought in medical education with very little time devoted to psychiatric undergraduate teaching.

There are reports also of a large increase in suicide rates in India in recent years – worldwide suicide is among the top three causes of death among younger people.  From 1980 to 1990, there was an estimated 41.3% increase in suicide rates in India – although the data must be treated with caution.  Suicide is still a criminal offence in India which may lead to under-reporting and registration of death and causes of death are not that efficient or accurate in rural areas.  Nevertheless, there does seem to be a high rate of suicide among young people, farmers[4] and married women (elsewhere marriage is a protective factor against suicide, but seemingly not in India.  Domestic violence and / or forced marriage may be a key factor here).  It is also more common in urban areas – possibly because of greater stress factors and pressure to succeed in the job market.[5]

Mental health legislation in India largely reflects the UK legislation.  The current Indian law is the Mental Health Act 1987 and is based on the same medical model of mental illness, focused on the detention of people with mental illness in psychiatric hospitals.

In 2008 the UN Convention on the Rights of Persons with Disabilities (UNCRPD) came into force.  This was hailed as a paradigm shift, finally treating people with disabilities as rights holders, rather than charity or medical cases.  It aims to give all disabled people (which includes those with psychosocial disabilities, or mental disorder) equality of opportunity, freedom from any discrimination based on the disability, autonomy including legal autonomy to make their own decisions and participate fully in society.  As well as guaranteeing liberties for people with disabilities, it also places obligations on States to enable their exercise of these rights.  Both the UK and India have signed and ratified the UNCRPD and both countries are now obliged to comply with this international law.

India, to its credit, has recently drafted a new Mental Health Care Bill which was introduced to the upper house of India’s parliament in August this year.  This new legislation aims to make India’s mental health laws UNCRPD compliant with a new emphasis on the rights of people with mental disorder.  New provisions include the welcome decriminalisation of suicide, an improved definition of mental illness, non-discrimination in the exercise of legal capacity, autonomy in decision making, restrictions on the use of ECT and psychosurgery as well as the introduction of advance directives to specify in advance the treatment a patient might accept in case they are incapacitated and unable to give consent.   In fact it seems to go further than current UK law in s.4 where it states that every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental health care or treatment.  Under UK mental health law at present, people who are ‘sectioned’ in a psychiatric hospital can potentially be treated for their mental illness without their consent, using reasonable force if necessary.  This includes those who still have ‘capacity’ – ie. the ability to make their own decisions - as well as those lacking capacity.  Many, including myself, would say this is not UNCRPD compliant – although the UK government does not seem to have addressed this anomaly as yet.

Dr Sushrut Jadhav (UCL, Senior Lecturer in Cross-Cultural Psychiatry), however, argues that mental health theory and practice in India still remains a ‘watered down’ version of Western psychiatry.  He maintains there needs to be more awareness of the local cultural context of mental disorders, and how the understanding of mental disorders is shaped by cultural factors.  For example, how does the stigma of Dalit caste contribute to suffering or well-being?  Does this change on conversion to other religions (from Hinduism) and is the stigma of caste similar or different to the stigma of mental illness?

On this World Mental Health Day, so much more needs to be done to help those suffering with mental illness in India, the UK and across the world.  Let’s hope the new legislation in India will go some way towards strengthening the dignity and rights of those with mental illness, more resources are made available to promote effective treatment and those needing help able to have treatment without fear of stigma or discrimination.

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[1] Figures quoted by MIND (UK)

[2] Mike Oliver, ‘Understanding Disability from Theory to Practice’.  MacMillan 1996.

[3] Reported 31 May 2013

[4] A high suicide rate among farmers in India has been widely reported, thought to be caused by economic conditions, introduction of GM crops and debt.  A BBC report though (23 Jan 2013) questions these statistics, saying they are no higher than other groups (and may be lower) but seem high because agricultural workers make up a large proportion of the Indian population.

[5] Figures taken from Radhakrishnan R & Andrade C, Indian J Psychiatry 2012 54(4) 304-319