Report – Workshop on Mass Crimes and the ICC

 

The Workshop by ICC-India Campaign and Centre for Culture, Law and Society, Hyderabad

 

 

 

 

 

The ICC-India Campaign and the Centre for Culture, Law and Society, NALSAR University of Law, Hyderabad (CCLS) conducted a joint workshop on 30^th September and 1^st October 2007 at the University campus. The workshop focused on the issues of Genocide, Crimes against Humanity, Mass Crimes and Communalism in India, The Historical Perspective of the International Criminal Court and Its Relevance to India. The distinguished dignitaries that conducted the workshop were: Ms. Vahida Nainar (Ex-Adjunct Professor of Law, CUNY School of Law, New York), Ms. Soumya Uma (Coordinator, ICC-India Campaign) and Mr. Arvind Narrain (Founding Member, Alternative Law Forum, Bangalore).

 

Morning Session: 11:00am- 1:30 pm

 

Introduction: Ms. Vahida Nainar

 

Ms. Vahida Nainar started off the session with emphasizing on certain questions that needed to be answered before delving into the thought process of looking into the work of the ICC-India Campaign. The pertinent ones were as to what is ICC, the work areas of ICC, the need of such an initiative in India, the gaps it seeks to fill and for what section of the society shall it work.

 

Ms. Nainar gave answers to the above in a way as to at the same time introduce the ICC and the ICC-India Campaign. ICC was formed basically to end the widespread impunity that acts as a shield for many a perpetrators and to bring them to justice in a way doing justice to the victims and preventing the victims. It seeks to step into the nations working in advent of “inability” or “unwillingness” of the Nation State to provide justice to the victims. Issues in the past have been brushed aside all over the world and India is no exception. Thus, to provide lasting solutions, to restore peace and to rehabilitate the victims of mass crimes, genocide and war crimes, the International Criminal Court was formed and the same is strived to be achieved by the ICC-India Campaign, that is to encourage India in becoming a signatory to the ICC and to ratify the same. Where laws are inadequate for bringing about justice or a lack of implementation was the impediment, ICC would step in there to rectify the situation.

 

An example of torture as an important issue taken up by the ICC was explained for the clarity of the participants. The issues of Chile, Argentina, Afghanistan, Armenia, Cambodia, Rwanda and Darfur were brought to the fore and were discussed very well. The need for law to be sensitive and have a greater responsibility towards the society was the centre of the discussions, leading to the need of ad-hoc courts and better mechanisms to deal with the serious impunity-concerns. In this regard, Pinochet’s case was illustrated to the participants. A need of accountability and stringent laws in place was again harped upon. The speaker ended the introduction by bringing about clearly the need for the ICC to be ratified.

 

Global Justice and Terrorism

 

Mr. Arvind Narrain:

 

Mr. Narrain’s address to the participants was regarding concerns over Global Justice and Terrorism. The speaker started off with making a note of the recent Glasgow Bombings and the Haneef and Sabeel case and the war against terror. He then took the participants to instances of serious human rights violations in the Guantenamo Bay under the garb of the Military Commission Act and the other serious issues of the setting up of Iraqi Tribunals under the Iraqi Tribunals Act. The situation of the world post 9/11 was the fulcrum of the discussions and the issues of Illegal detention, Emerging jurisprudence and the Notion of trial were the broad aspects. The speaker then touched upon the trial of Saddam Hussein and the flaws in setting up the justice- delivering mechanism in the case and how would have ICC stepped in and helped herein.

 

The speaker then summed up by making a harmonious blend of the current global justice concerns, war against terrorism and how would these issues be better solved by the methods incorporated by ICC. These were the instances where War Crimes, Genocide and Crimes against Humanity were the most glaring of all.

 

Impunity for mass crimes in India

 

Ms. Soumya Uma:

 

Ms. Soumya’s address was aimed towards discussing about the impunity for mass crimes in India. She started off by discussing as to what was meant by Impunity and how it was prevalent in India due to lack or inadequacy of laws in India and furthermore due to lack of implementation and misuse of laws by agencies. The Armed Forces (Special Powers) Act and the present situation in India. The fact that the only way these cases are dealt are by setting up commissions was lamented over.

 

Ms. Uma then went on give a background of the impunity issues. She brought to the fore the Partition Era, the Kashmir Issue, The Issue of North-Eastern States and The Punjab Militancy Issue. The inability and the unwillingness of the state to take any action were discussed here and thus, the need for adopting ICC was greatly harped upon.

 

Afternoon Session 3:00 pm to 5:30 pm

 

The International Criminal Court – History and Fundamentals

 

Ms. Vahida Nainar

 

The session started with a 90-second footage showing various mass crimes and instances of genocide. It captured the audience’s attention in the very first attempt. Taking this as the background, the speaker then went on to explain the cold war and its implications over the global terror concerns. From this stemmed the need for the Rome Statute to come up and its need. The ICC was again discussed at this juncture and so were its jurisdiction and role on the event of it being ratifying by a nation state. The salient features of the ICC were then introduced to the participants. The principles and policies of the ICC were discussed in details and its relation with the Security Council was drawn out at the insistence of the students. The next were the Crimes under ICC, the non-inclusion of Nuclear Weapons and the reasons for India not being a signatory to the ICC. The structure of the court was lastly touched upon by the speaker.

 

India and the ICC

 

Mr. Arvind Narrain

 

The role of the state was brought into the pictures in the instances of Genocide, Crimes against Humanity, Mass Crimes and Communalism. This was discussed particularly in light of the Anti-Sikh Riots, the Babri Masjid Issue, The Bombay Riots, The Gujarat Riots and etc. State Complicity was mulled upon and the ineffectiveness of the present laws incorporated in the Indian penal Code (I.P.C) and Criminal Procedure Code (Cr.P.C) was brought out. Then there was a brief exercise undertaken on the classification of the offences undertaken. Also, an international context in terms of Yugoslavia, Akayesu case and cases of Enforced Disappearances, state complicity was pointed out and as regards India; the recommendations of the Srikrishna Committee were very briefly gone through. The address was summed up with a small lecture on the need for Law reforms in the country.

 

Responses of the Indian Government to the ICC Statute

 

Ms. Soumya Uma

 

The issue of violation of sovereignty, the preservation of democracy, the shield of impunity and the non-inclusion of the nuclear weapons as in crimes were the major concerns of the Indian Government. The Anti-ICC stand of India and the Indo-US coalition against ICC is something that proved to be very informative and the Indian decision of not submitting to the ICC for the time being, by being neutral was a topic which was explored and the students took an active interest in the same. Again, the role of the prosecutor and the role of the Security Council, the concerns for the North-Eastern states and Kashmir were expressed herein. Ms. Uma summed up her address by giving answers to the concerns and apprehensions of the Indian Government.

 

……………..

 

The third session was an informal session held on the 1^st of October 2007. The session was very informative as dealt with the Communal Violence Bill, Communal violence situations in the Country citing specific instances from the Sri Krishna Report.

 

In all it was a very informative and successful workshop with more than 95 students attending and participating in the same. The Centre for Culture Law and Society hopes to conduct more such workshops in the near future to help students gain a perspective on law and society issues in the Country and around the world.

LONDON CALLING!!!

London Calling!!
Aju John (Chief Editor- Indlaw.com)

 

2007 may well go down as the year where the British law firm grew bullish about its Indian aspirations. Take a look at what has been happening. The British Minister of State for Legal and Constitutional Affairs, the Rt. Hon. Baroness Ashton visited India, and much of her time was spent in attempting to take forward the dialogue on opening up the market in Indian legal service. Her visit followed that of the UK Joint Economic and Trade Committee (Jetco) where discussions on the legal sector featured prominently. Five law firms from London participated in the recruitment process at the National Law School in Bangalore. Allen & Overy, one of the magic circle firms, even made an endowment to the National Law School for a chair on International Financial Law. Noting the occasion, Alex Pease, Chairman of Allen & Overy’s India Group, said: We appreciate the complex challenges that lie ahead for India’s legal infrastructure in terms of meeting the demands of a rapidly growing economy. This endowment is a first step towards establishing a collaborative approach within India to address some of these challenges. Students will now have the option of learning about international financial law to supplement the world class education they can obtain at NLSIU Bangalore in many other legal disciplines.

 

Clifford Chance, another member of the magic circle, embarked on a new costcutting drive with an eye on major upscaling of its offshoring programme in India. Outsourcing, or offshoring of legal processing to India is on the cusp of a huge boom. Earlier this year, Fox Mandal Little teamed up with UK based outsourcing firm Centric to launch an outsourcing firm for UK and US based law firms. However, unlike the back-end legal work that is processed by Legal Process Outsourcing groups, it is clear now that London firms are also on the lookout for highly skilled lawyers whom they can take on board. The increasing amount of India-related work done by these firms is often cited as the most important factor that is contributing to this need. The numbers of Indian companies acquiring targets overseas, Indian companies being acquired by foreign investment and other transactions that require a familiarity of the Indian legal system and business environment have all contributed to the demand.

 

Most of these firms now have India groups who do advisory work on such transactions, and these groups are witnessing unprecedented expansion. Just a few days back, Linklaters is reported to have hiked the number of trainee secondments in its Singapore office in a bid to boost its India group. The first India group trainee was posted to the Singapore office in March and is focusing on corporate work. The next seat rotation in September will see a second trainee, expected to focus on banking and finance. Linklaters have been recruiting from NLSIU for about five years now, and a lot of these recruits are constantly engaged by the India group. After Clifford Chance partners travelled to New Delhi early this year to recruit directly from the capital, senior partner Stuart Popham had told The Lawyer: This is the first time we’ve actually gone to India formally. We needed more lawyers in London, but weve also been called on by clients for help on Indian-related matters. If the Indian legal services market opens, we want to have experience of working with Indian lawyers and have created a team who understand the market. The worlds looking at India.

 

In 2007, most of the law firms that sought to recruit from India have preferred to come through formal processes such as the Recruitment Coordination Council (RCC) at the National Law School of India University. They also preferred to give internships first, before making offers for training contracts. Clifford Chance was the only exception to the rule, and their enthusiasm for Indian legal skills were evident when they bypassed the internship stage to directly offer training contracts to the students at NLSIU. All the firms conducted interviews, and a glittering academic record was almost essential in order to qualify for it. Another aspect that all these firms seemed to look for was an aptitude towards business, and recruits are expected to understand and respond to the needs of clients. Such an aptitude could either have come through on a candidates resume, or could be evidenced in answers to questions in interviews. Most firms also insisted on an essay and an interview to test legal and technical knowledge.

 

This palpable tension to attain a foothold in anticipation of the opening up of the legal services sector is not new. After all, firms like Ashurst Morris Crisp, Chadbourne & Parke and White & Case did have liason offices in India in the early nineties until a Bombay High Court decision forced them to shut shop. The lack of a clear regime in which foreign lawyers were able to work and the fact that international law firms were increasingly practising on the ground in response to the demand from their clients, led to friction with domestic practitioners. This culminated in a case brought by a group of Indian advocates in the mid-1990s which resulted in a provisional ruling of the Bombay High Court in 1995. This ruling interpreted the Advocates Act to mean that Indian advocates not only had exclusive rights of audience in the Indian courts, but also a monopoly of advising on any law, Indian or foreign, in India. Although the Indian Supreme Court subsequently directed the Mumbai High Court to re-consider this ruling, this has not yet taken place. This meant that for the past decade, foreign law firms have not been allowed to follow their clients into the Indian market, as they do in many other jurisdictions and set up offices out of which they can advise in India on the international aspects of transactions taking place there.

 

However, relationships of referral continue to exist between UK firms and Indian ones. These relationships are in the nature of informal alliances, and most UK firms prefer to keep such arrangements flexible, and with a cluster of law firms. In the past, Travers Smith is known to have had a fruitful relationship of referral with Amarchand & Mangaldas Suresh A Shroff & Co. In September 2006, SJ Berwin Senior Partner Jonathan Blake met with ten Indian law firms in a bid to build referral relationships. Since 2004, DLA Piper has had a deep relationship with Little & Co. Ashurst now says on its website about its New Delhi liason office: Ashurst has developed good contacts and relationships with the legal, accountancy, banking, finance and business communities and governmental and regulatory agencies in India. Accordingly, the New Delhi liaison office is able to provide our other offices with an extensive range of valuable information and knowledge of the Indian scene. For example, the close links the office has with a number of leading Indian commercial law firms enable Ashurst to assist clients to obtain the best Indian advice in the most efficient manner.

 

More recently, the Ministry of Commerce has continuously attempted dialogue to shift the more protectionist attitudes among Indian advocates. In July 2006 the Indian Ministry of Commerce and Industry issued a consultation document on the opening of the legal market in the context of the World Trade Organisation trade negotiations. Even though a lobby continues to prefer to keep foreign lawyers out, several voices are being heard in favour of trade in legal services. In July 2006, the newly merged Fox Mandal Little petitioned the government of India with five steps that could ease the process of integrating with the international market including a participatory method to frame rules for foreign lawyers. Such pragmatism was also evident at the conference on trade in legal services held on 20 January in Delhi by the Associated Chambers of Commerce and Industry of India and the Society of Indian Law Firms, where opinion seemed to be in favour of the market opening provided that domestic reforms were undertaken first in order to prepare local law firms for foreign competition. These include regulations that concern advertisements by lawyers, cap on the total number of partners in a firm and the sharing of law firm revenues with non-legal practitioners.

 

(Aju John is an editor at Indlaw Communications.)

 

the link is http://www.indlaw.com/display.aspx?2459

Final Solution: Bestowed the recognition

Banned by the censors, rejected by Mumbai International film festival, now being awarded by the President of India!

In the just announced 53rd National Film Awards, Rakesh Sharma’s internationally-acclaimed documentary Final Solution about the Gujarat carnage has been given the Special Jury award comprising a Rajat Kamal and a cash prize of Rs Ten Thousand. The Jury awarded the film “for its powerful, hard-hitting documentation with a brutally honest approach lending incisive insights into the Godhra incident, its aftermath and the abetment of large scale violence”. ( http://pib.nic.in/archieve/others/2007/aug07/53rd_nfa-2005.pdf)

Said Rakesh Sharma, “Final Solution itself is a perfect illustration of why there should be no censorship for documentaries. The President of India is now recognizing the film for its merit and excellence. Curiously, in sharp contrast to the National Film Award Jury, the CBFC (censor board), while banning the same film in 2004 had observed that the film “promotes communal disharmony among Hindu and Muslim groups and presents the picture of Gujarat riots in a way that it may arouse communal feelings and clashes among Hindu Muslim groups.” According to the CBFC, the film “attacks the basic concept of our Republic i.e. National Integrity and Unity. Certain dialogues involve defamation of individuals or body of individuals. Entire picturisation is highly provocative and may trigger off unrest and communal violence. State security is jeopardized and public order is endangered if this film is shown…. ” Widespread public outcry and protest campaigns led the CBFC to clear the film without a single cut in Oct 2004. Both the ban and CBFC’s subsequent clearance came during the UPA’s regime.

Ironically, the government-run Mumbai International film festival (MIFF) rejected the same film on the grounds that it wasn’t good enough, refusing even to screen the film, let alone allow it in Competition! However, the week after MIFF, Final Solution created history at Berlin by winning two awards, including the Wolfgang Statudte award, never given before to a documentary film!

Reacting to the National award itself, Rakesh Sharma said, “I am delighted and saddened at the same time. Delighted because after 30 international awards for my last two films, this is my first National Award! Delighted also as now Doordarshan will telecast the film to a wider audience in view of its policy convention and judgements by the Supreme Court and Bombay High Court. Saddened because the ugly shadow of censorship continues to mark the National Film Awards, leading to its boycott by a section of documentary film-makers.”

Stressed Rakesh Sharma, “When an arm of the Government of India honours the film while another arm harasses the film-maker and then bans the film, it makes the Indian State appear schizophrenic. I hope the Government will do away with censorship for documentaries, especially in view of its stated commitment to Right to Information as well as Freedom of Expression. Documentaries should instead be brought under the purview of the Press Council of India – after all, what is the difference between an NDTV special report on Gujarat riots and Final Solution? A ban on Final Solution seems absurd! Police action to prevent screenings of documentaries seems totally farcical. There is no space for such censorship in a mature Democracy – I urge sections of civil society to join us in our campaign against censorship of documentaries.”

Final Solution is a study of the politics of hate. Set in Gujarat during the period Feb/March 2002 – July 2003, the film graphically documents the changing face of right-wing politics in India through a study of the 2002 genocide of Moslems in Gujarat. Final Solution is anti-hate/ violence as ” those who forget history are condemned to relive it “.

The film has over 20 international awards and has been screened at over 80 international film festivals (details below and on http://www.rakeshfilm.com). These include two awards at its premiere at the Berlin International film festival and the prestigious Index on Censorship award in 2005
Final Solution (India; 2004; DVD; 149 minutes)

Awards:
Wolfgang Staudte award & Special Jury Award (Netpac), Berlin International film festival (2004)
Humanitarian Award for Outstanding Documentary, HongKong International film festival (2004)
Montgolfiere d’Or (Best Documentary) & Le Prix Fip/Pil’ du Public (Audience award), Festival des 3 Continents at Nantes (France; 2004)
Best Film, Freedom of Expression awards by Index on Censorship (UK ; 2005)
Silver Dhow, Zanzibar International film festival (2004)
Best documentary, Big MiniDV (USA; 2004)
Special Jury Award, Karafest (Karachi; 2004)
Special Jury Award, Film South Asia (Kathmandu; 2005)
Human Rights Award, Docupolis (Barcelona; 2005)
Special Jury Mention, Munich Dokfest (2004)
Special Jury Mention, Bangkok International filmfest (2005)
Nominee, Best Foreign Film, Grierson Awards (UK; 2004)
Best Documentary, Apsara Awards (India;2006)
Special Award by NRIs for a Secular and Harmonious India (NRI-SAHI), NY-NJ, USA (2004)
Special Award by AFMI, USA-Canada (2004)
Special Jury Award, Worldfest 2005 (Houston)
Special Jury Award, Mar Del Plata Independent film festival (2005; Argentina)

Screened at over 80 international film festivals.

Fair Use and Fair Dealing

Fair use and fair dealing: Exception under copyright law with special reference to literary work

By Shaveta Chaudhary

______________________________________________________________________________

FAIR USE:

It is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term “fair use” is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

Fair use is a limitation on the exclusive rights of the copyright owner. The roots of what we today refer to as fair use are well established in our early English common law tradition. The “fair use doctrine” is a complex exception to the “limited monopoly” vested in authors by the United States Constitution and Copyright Act. The guiding principle of the fair use doctrine is to make available, for limited purposes, reasonable public access to copyrighted works.

The US act, enumerates four “fair use factors” that need to be analyzed in order to determine whether a particular use of a copyrighted work is fair use. These factors are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”

Because the courts consider all four factors – no single factor is and of itself sufficient to prove fair use – publishers need to understand each factor as it relates to determining whether use of the original copyrighted work in the creation of a new work will be considered fair use in the eyes of the court.

As the topic for the assignment needs it to be focused on the literary work, I’m directly coming on to the 3^rd factor which is the major concern of dispute. The third fair use factor looks at the amount and substantiality of the copying in relation to the copyrighted work as a whole. The critical determination is whether the quality and value of the materials copied are reasonable in relation to the purpose of copying. This is not a pure ratio or an absolute quantity of words test since using a whole work may be fair use under some circumstances, while using a small fraction of a work may not qualify for fair use under other circumstances. The sanctioning of the unauthorized copying of entire works as fair use is an exception and not the rule. Therefore, anyone who uses all or substantially all of a work, particularly a literary work, is asking for trouble, and will probably be found to have exceeded the bounds of fair use.

The quantity, as well as the quality and importance, of the copied material must be considered. One criterion that courts frequently evaluate is to make certain that the user of the copyrighted material has taken no more than was necessary to achieve the purpose for which the user copied the materials. 

FAIR DEAL:

Fair dealing is a defense against an infringement action. An individual may make a single copy, or in theory even multiple copies of a literary work as long as the copying does not damage the legitimate interests of the copyright owner and as long as it is for the person him or herself, and is for one of three purposes: for research or private study; for the purposes of criticism and review; and for reporting current events.

What would be considered “fair”? You will hear people saying: copying anything less than 10% of the original length as being acceptable. This is wrong. It is the quality, or importance of the material copied that is important not length. Look at it from a negative point of view. What if the material copied were missing from the work? How much would that reduce its value? If it would reduce it a lot, then the material copied is substantial and the copying is not “fair”. If not, then it is not substantial and the copying is “fair”.

Assuming the copying is for you, is not substantial and does not damage the copyright owner’s commercial interests; it still has to be for one of those three purposes. Education is NOT amongst the permitted purposes. A teacher cannot claim “fair dealing” if offering copies of materials to students. In other words, all such copying is infringement. (In fact, the law does allow a miserly allowance to educators if they want to avoid accusations of infringement, but the allowance is so minute as to be meaningless.)

Incidentally, librarians have a unique place in Copyright Law as people exempt from the usual rules and as people permitted to make copies for their patrons, so long as copyright forms are signed and as long as they receive payment for the copies made.

There are exceptions to the regulations around copyright: in general, the use of a small amount of material from a work is not an infringement of copyright but this can depend on which part and for what purpose. For the purposes of research or private study, or for reporting current events, copyright is not infringed by copying the work. All types of material may be used for criticism and review either of that work or another work. This is ‘fair dealing’ and it means not only financially fair but also fair in the sense of justice to the author.Software copyright: although software is regarded as a literary work, it is in fact very difficult to ‘fair deal’ using only an extract from it. Copying software is permitted in some limited cases: for instance, to make a bona fide backup, or for the purposes of developing a compatible piece of additional software. Usually copying of software is rigorously controlled because it would otherwise be impossible to control: for instance, loaning a package might be permitted but if the person borrowing it then copied it, or passed it on to someone else, that would infringe copyright. INDIAN SCENARIO:

There are a few exceptions that have been given in the Copyright Act. For the purpose of this assignment, major emphasis is laid on fair dealing doctrine in the literary works. Fair dealing concept can be viewed in different senses. It can be viewed as a limitation on the right of the author at the same time it can also be seen as a defense to an act of infringement.

In the case of Kartar Singh Giani v. Ladha Singh[1], the court held as under:

“two points have been urged in connection with the meaning of the expression ‘fair’, in ‘fair dealing’ (1) that in order to constitute unfairness there must be an intention to compete and to derive profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper or oblique the dealing would be fair.”Section 52 of the Copyright Act, deals with the same and majorly follows the fair deal principle as has been used in the words. Subject to certain conditions, a fair deal for research, study, criticism, review and news reporting, as well as use of works in library and schools and in the legislatures, is permitted without specific permission of the copyright owners. In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some of the exemptions are the uses of the work

1. for the purpose of research or private study,
2. for criticism or review,
3. for reporting current events,
4. in connection with judicial proceeding,
5. performance by an amateur club or society if the performance is given to a non-paying audience, and
6. the making of sound recordings of literary, dramatic or musical works under certain conditions.

---

[1] AIR 1934 Lah. 777.

The Personal is Political

With a name like ‘The Reluctant Fundamentalist’, you might imagine that this book by Mohsin Hamid would be discussing Islam and violence or causes of religious extremism, which has spawned some writing in recent times- some of them as ludicrous as this. (See point 4)

 But surprisingly, this is the personal narrative of Changez- who for all practical purposes is an American (One of them Princeton graduates, he goes on to join a top-notch valuation firm), yet doesn’t feel quite at home. It is, however not a case of direct discrimination against immigrants- his stupendous professional success testifies to that; nor is it a simple craving to get back into one’s comfort zone and to all of motherland’s glories.  As he goes about his life, thoughts about his identity and sense of purpose keep floating by, which ultimately turn out to be much more than mere ruminations.

 
For, the personal is always political. This phrase, a flagship of the feminist movement in the 1970’s came as a response to statements being made about women’s congregations – how they were merely therapeutic and served no political purpose. Women met just to lament about the ills of patriarchy and their centuries of oppression; these were the ‘personal problems of women’, which need not be brought to public fora; hence no women’s movement would be required to sort out these individual, private problems. (Doesn’t this smack of the still continuing apathy towards Sec. 498A, IPC cases or even the definition of ‘work’, serving to exclude housework?)

 

Also, understanding this blurring of the personal-political distinctions, in the context of the feminist movement (and for any other movement as well) would be of help to see why certain members of the community often do not join ‘movements’ or indulge in ‘activism’- the very fact that they do not join is not because they don’t have a political understanding, but that share another one, which may not at first blush seem obvious.

 

“What I am trying to say is that are things in the consciousness of “apolitical” women (I find them very political) that are as valid as any political consciousness we think we have. We should figure out why many women don’t want to do action. Maybe there is something wrong with the action or something wrong with why we are doing the action or maybe the analysis of why the action is necessary is not clear enough in our minds.”

 
Thus, people who are silent when they are supposed to speak, sit on the fence or flaunt indifference prefer the status quo, most obviously because of their personal position. And that is as much a political statement as shouting from a podium is.

 
Changez’s own identity (or the confusion surrounding it) is as much got to do with how he perceives his country, attempting to be an outsider. (which is in turn a nebulous concept in itself!) There is no jingoism here (Changez to his credit has quite a balanced view of his country, of its glories and decadence), or the sense of feeling threatened in a alien country; yet Changez smiles on 9/11. Thereafter, his subsequent behaviour, even his growing of a beard are viewed with suspicion and seen as bearing allegiance to his religion and all that is attached with it.  Faced with some difficult choices, he ultimately decides to dedicate his career to raising political consciousness.

 
A short, surprisingly insightful read!

 – By Sowyma Kumar.

Treating the effect and not the cause

About two years back, a few universities in India were considering implementing a dress code, and it actually came into force in some of these. There was a raging debate at the time about whether universities ought to implement any dress code. One piece supporting such dress codes was published in the Open Page of The Hindu (See http://www.thehindu.com/thehindu/op/2005/10/09/stories/2005100901191400.htm) This piece is in the form of a reply to that article and this as well was published in the Open Page of The Hindu.  

THIS IS in response to Jyothirllata Girija’s article. The recent propositions by some universities to have a dress code for women have been met with a lot of opposition. Some have chosen to defend this move on the part of the universities, claiming that it would reduce instances of “eve-teasing” (which is a very objectionable term as it trivialises the issue that it refers to) or molestation.

While it would seem reasonable for universities to require their students, regardless of their sex, to dress decently (though this may pose a problem in implementation as decency is itself subjective) and penalise them for non-compliance, imposing a blanket rule on girls and making them wear only saris or salwar kameez with a pinned dupatta is simply draconian.

The concept of punishing the victim instead of the perpetrator is unknown to all principles of equity and law. If there is a problem which has been created by an identifiable group or person, restrictions have to be placed on that group or person, and not on those who are affected by the actions of such a group or person. It is also wrong to presuppose that every man is a potential molester. And it is just preposterous to suggest that “decent” men will be forced to indulge in “eve-teasing” if a girl is indecently dressed. Can such men even be classified as “decent”?

The views of the writer seem to propagate the stereotyped gender roles that already exist in society. Women are modest and must dress modestly (this means that they must wear saris or salwar kameez with their dupattas pinned up); men are lecherous and will indulge in “eve-teasing” whether women are dressed modestly or not; women are to blame if “decent” men are “provoked” to stare at them in all the wrong places. Going by these ideas, there can be no such thing as a “decent” man! The article thus does injustice not only to women but also to men. It offers but a superficial explanation of and solution for the issue of sexual harassment and molestation.

What is actually required at this point is a deeper understanding of the problem and the reasons for its occurrence. Indian society is in a transient stage and the tussle for equality between the sexes continues. With depictions of women in the mass media that more often than not reinforce the idea that women enjoy being eve-teased and also contribute towards the commodification of women and their bodies, what needs to be changed is the mindset of the men who appear to be greatly influenced by all this.

It is necessary to inculcate mutual respect in the minds of boys and girls. Restrictions should be placed on popular depiction of women as objects of desire and their commodification should be targeted. This is not to say that colleges should not have rules requiring decorous dressing on the part of their students, but a solution like the suggested one completely misses the cause and proceeds to treat the effect instead. That being the case, it can never be an effective solution.

 

By Harini Sudersan 

The Will to Hope

There is this very interesting article by Amit Sengupta in the May-June 2007 issue of Combat law. In this article titled, “The Will to Hope”, Mr. Sengupta explores the diffusion of the Left in India and the rise of a new power in the form of Hindu fundamentalism. He argues that the BJP and the RSS would come down heavily and learn from their past mistakes. What would then ensue is something similar to what is happening presently in the BJP ruled states, blatant HR violations, communal clashes and prejudices in the name of religion.

“Instead, like primordial creatures of sacred cults who can undergo multiple metamorphosis, the octopus-like parivar, with its many fronts and institutions (unlike the official or radical Left), blooms and flourishes under State patronage. That is why, the Gujarat hate lab is a 100 percent success story; and Gujarat’s prototypes and microcosms are actively spreading, like slow epidemics, in all BJP-ruled or BJP-coalition states: Rajasthan, Madhya Pradesh, Uttarakhand, Chhattisgarh, Orissa, even Karnataka where they tried to communalise a site of shared, secular synthesis: Babubudangiri.”

After Nandigram and incidents in Kerala, indeed the left has had to go through rough stages. They seem to be losing their identity in the States they rule. To quote Amit, “West Bengal’s openly joining the race as to who owns more malls and multiplexes, big industries and factories”. However, in as much as this article is written to show that the left influence is fading, the central theme in the article shifts to a vehement attack on Modi and the BJP ruled states. Amit seems to be talking more about justice to the victims of Gujarat than about Karat and his influence on the left.

True however is the premise that despite a Left backed government in our country, Leftist ideals dont seem to be followed. We looked towards the left when it came to Petrol prices and nothing happened. Nandigram is a black stain on the left that time and again talks about atrocities in Gujarat.

“Meanwhile, the 10 percent growth remains an elusive category for the 93 percent of our unorganised workforce in the informal sector, in urban and rural areas, mostly the poorest. They are compulsively isolated outside the paradigm of social safety, social security, health, education, food, drinking water, or shelter, as constitutional rights, with not even 100 days of employment in a year, despite the fudged up National Rural Employment Guarantee Act and the scrapped National Advisory Council. So what does the neo-liberal State want them to do: line up outside the SEZs and commit mass suicides?”

The above and a reference to farmer suicides seem to divert from the main issue of the article. In the end, Amit states that the UPA- Left must wake up to tackle these issues. True that they must wake up. But the reason should not be that otherwise the BJP would come to power and the consequences would be bad. In not allowing the ‘devil to rise’, we are asking the squirrel to gear up.
In a one liner to this article, Mr Sengupta looks at a lot of issues to adjust to the Central idea. However, the premises he uses to justify them are baseless.

BOOK REVIEW: WE ARE POOR BUT SO MANY

Title: We Are Poor but So Many

Author: Ela R. Bhatt

Pages: 219

Publisher: Oxford University Press

Price: Rs. 595

A must read. Acknowledging this to be a statement usually located at the conclusion of a book review, in the context of this book one feels compelled to mention it not only at the start of the said review but to repeat it at regular intervals. “We Are Poor but So Many” is not just the story of self employed women in India as declared by the author but in fact a prelude to the saga of the oft ignored workers of India, trade unions, labour law, and their increased politicization and consequent inefficiency. Ela R. Bhatt traces the background, inception, growth and the final flourishing of the Self Employed Women’s Association (SEWA) in the context of the workers who are its main constituents and the trials and tribulations they face. Written simply, without pretension, bias or bitterness the book provides an account which is poignant in its accuracy. In two hundred and nineteen pages the author successfully spans a range of topics beginning with her own growth and concluding with the spread of her creation to shores abroad. One of the book’s strengths are the reflections of Bhatt’s own maturity while addressing the problems of women from a socio economic strata initially alien to her. Her understanding of a trade union as an entity merged in with the identity of individuals it seeks to serve and not as a personality divorced from them is an obvious breathtaking revelation. To the student of labour law and the ordinary layman these associations represent either intimidating political forces serving vested interests or organizations dedicated to the cause of ‘labour’ – a concept distinct from the needs of the worker. The simplicity of the writing of the book is striking when understood in the context of the complexity of the issues it seeks to address. Bhatt speaks extensively of not SEWA or its members alone but also of its genesis which lay in the divisive politics of the TLA and its problems rooted in age old employer-employee hierarchies and domination. This spare clarity is one which can be recognized as an integral part of the manner in which Bhatt comprehends the obstacles which lie before her for the same overarching theme of simplicity extends from her writing to her methods of problem solving. A method of understanding which resonates from her firm belief in Gandhi’s ideas on work and economics. An extension of this belief is her fundamental conviction that “adding complexity is not progress…that nothing that comprises a person’s humanity is acceptable and that poverty is wrong as it strips a person of their humanity and takes away their freedom.” On this premise she has based a movement, and a phenomenon which rewrote common assumptions of the capabilities of poor, illiterate women. A movement that is considered a confluence of three movements: the labour movement, the cooperative movement and the women’s movement. SEWA as an organization is one of a kind and its socio legal history forms an intriguing narrative from the perspective of labour law and policy making. By challenging the stereotypes of the poor it provides an inspiring read for those interested in welfare, removal of poverty, legal reform and the widening of employment opportunities for the poor.

SEWA is a trade union registered in 1972 to provide support to poor, self-employed women workers who compose the unprotected, ‘unorganized’, ‘informal’ labour force of our nation. Refreshingly the author uses none of these terms in her book – insisting on terming these women ‘self employed’ ensuring no other jargon is used to pigeon hole them into categories inherently derogatory due to the nature of their nomenclature. This is indicative of a mindset which does not unconsciously view self employed women as objects of pity but of a perspective which attributes dignity to their struggles. Bhatt recognizes the limitations of labour law with regard to its unhealthy involvement with such terminology and rightly calls for a removal of such “conceptual blocks.” Dealing with women who hold myriad jobs which are performed in manners not addressed by most Indian labour legislation Ela Bhatt has fought such unfair classifications over an extended period of time for it is this rigid categorization which makes extending protections to the vulnerable impossible. Constituting 93% of the labour force, these are workers of the unorganised sector. Of the female labour force in India, more than 94% are in the unorganised sector. However these women workers remain uncounted, and invisible to the law, the media and the self obsessed middle class who may aid them in their struggles.

In the face of such obstacles their achievements have been great. To list a few they have spread the movement to Yemen and Turkey, as home based workers have now begun to organise there; started two communiity based tuberculosis diagnostic and treatment centres, in partnerships, with the government and the World Health Organisation (WHO); and through their support, Artisans of Banaskantha and Kutch exhibited and sold their textile products in Paris and three other cities of France.

The most important chapter in this book is definitely the introduction which provides not only a summary of how SEWA came to be but also provides an insight into the author’s own life and what led her to espouse the causes she did. The holistic manner in which this has been treated lends a unity to the book and a personal connection with reader. The incomplex, identifiable pictures Bhatt paints with her words lead us to an understanding of these women, these rag pickers, chindi and garment stitchers, street vendors and embroiderers which has been lying latent. What makes this book striking is Bhatt’s ability to bring into focus all the individuals who populate the background of our lives – those who form the backbone on which all our pretensions of development rest. She insists on repeating the manner in which their days progress, their habits and the ways in which they accommodate the limitations imposed on them. Returning over and over again to the real life stories of these women gives the book the biting edge of reality while their endurance and success with SEWA infuses optimism. These descriptions are invaluable and no number of statistics can take their place in ensuring that the reader not only acknowledges and understands but truly empathizes with these women. What is truly remarkable is not only that the author empathizes so completely with lives so different from hers but also that she manages to transfer this empathy to the reader by offering a lucid description of exactly what goes on in the lives of the subjects of the book. Combined with the presence of a few, well placed statistics regarding the exact wage rates, savings, expenses and economics of these women Bhatt’s arguments prove to be emotionally and logically well placed. It is this perception of Bhatt – this compassionate apperception which colours her motivations and her writing and leads her repeatedly to success. While initially there may be apprehensions with regard to the fallouts of a trade union specifically oriented towards women – these are wiped away with the holistic manner in which women’s issues are broached. SEWA is inspiringly independent – the community of workers who face a dilemma are allowed to recruit leaders from themselves and choose their own solutions. This decision making power empowers women to make braver decisions both at work and at home for the support of others who are similarly placed proves to be a source of great strength. The organization conducts its own surveys – a methodology which is accurately given great importance by Bhatt who insists that for the effective recognition of the nature and scope of a problem a series of preliminary and more detailed surveys are required. In this manner there is no question of a majority dominating or intimidating other members of the union. when addressing the power structures inherent in any association due to the prevalence of the caste system Bhatt with characteristic maturity states that non discrimination, unity and the concomitant power of the collective is a transformation which cannot be forced and the futility of caste barriers have to be removed only through an internal process of realization. It is this faith which she has placed in these women which has propelled SEWA to success for with full confidence in the organizational capacity of these women she has allowed them to express their own needs in their own way. In fact the chapter dedicated to banking provides an incredible account of how a collection of uneducated women from Naranghat, Gujarat started a bank with their own meager savings and went on to run it so effectively that year after year since its inception in 1973 SEWA Bank shareholders have received dividends without fail – a feat accomplished without the aid of any subsidy and in the face of a condescending bureaucratic mindset which would not allow the Registrar of Cooperatives to register the bank. The reasons given for such a refusal were that the applicants were poor illiterate women with scattered occupations and of a lower community. None of these criterion are disqualifications under the Urban Cooperative Bank Act yet common perception is such that it could simply not accept that a strata lower than the middle class attempt to access a bank. Yet the most striking feature of the struggle of SEWA is that such perspectives have not jaded the drive of its members or creator. The organization caters to the financial, work related needs of its members while providing them with support during times of crisis through their own collective strength. Commendably despite the vastly successful nature of the programs carried out and the wide support base created at the grassroot level the organization has always maintained a distance from local, regional and national politics. A trade union without political affiliations is a rare occurrence these days but learning from how increased political influence resulted in the dissociation of TLA from its members SEWA has maintained a staunchly apolitical stance often at great cost to itself. The truth is that with a political association comes greater bargaining power, a more cooperative government structure and greater access to resource. Yet admirably they have maintained their distance from such acts and proved that despite the juridification of the law and the corruption of the state the voice of the people cannot be drowned. Similarly they have followed a clear policy of staying away from commercial profit oriented activities although they have facilitated capability expansion amongst workers by allowing them to access methods of improving their own livelihood. These principles have maintained the credibility of the institution and stood them in good stead.

By way of criticisms one has few to offer but there are things to take note of in the book. Firstly the author has a tendency to get repetitive with stories which are so numerous that they lose their impact eventually. Secondly, although numerous intelligent questions are raised by the author there is no attempt to answer them in full. Thirdly, in the chapter dedicated to reforms one wishes that there was more by the way of suggestions both for individuals and the state to implement to ensure the amelioration of the situation of self employed women. Although an account of Bhatt’s journey is a learning experience in itself a further elucidation of her ideas for change would have made the book more thought provoking as often it sinks into being a log of incidents in the lives of women; families and SEWA organizations. Lastly with regard to the layout of the book the pictures could have been used in a manner much more effective.

In conclusion one feels compelled to comment on the inadequacy and often barbaric nature of the laws and the manner in which they are implemented against the vulnerable. This forms a recurring theme in the book where most commonly the greatest obstacle to achieving equity between employer employee relations is an uncooperative legislature and judiciary. This was specifically brought out with the story of the vendors who are the main source of groceries to cities but who are considered illegal salespeople, encroachers and consequently penalized for the same. This sort of lack of understanding on the part of the state administration is disturbing and begs for change. However what must be changed before the laws is the mindset of the people who frame and follow them and this can be done through the effective dissemination of information with regard to the plight of the oppressed through mediums like this book. In that manner this book is a valuable teaching tool for those who need to learn more about the working conditions of the unorganized sector, for those who need the unorganized sector to be made visible to them and also for those of us who feel a need to initiate change but don’t know how. A must read. Definitely.

 

By Gruhalakshmi Kumar and Yashasvini Kumar

Rethinking John Galt

Last night Wadhwa, Arunav and self were having this whole discussion about Atlas Shrugged and the character John Galt. For those who have read the book, they’d remember the question everywhere, “Who is John Galt?”. Well there is this beautiful line in the book that says something to the effect that ‘John Galt is Prometheus coming back to take the fire that he had given away.’ Wow!.

For me the very idea of stopping the motor of the world had been a fascination. Galt and Howard Roark used to my heroes at one point of time. Not to forget, Ive read the books twice. But while Ayn Rand’s idea and philosophy is something to admire, the bigger question is that should we really stick by it and follow it all through our lives? This question was a major part of the discussion that the three of us were having last night. Rand seems to be our heroine, but we ourselves are rational beings. We know what to borrow and what not? For example, the idea that man must do what he feels is right or as Wadhwa put is straight ‘He must do what gives him pleasure’.

A para from wikipedia on ‘Atlas Shrugged’ reads,

Like the Greek Titan Atlas, individuals rationally and circumspectly seeking their own long-term happiness believe that they hold the world on their shoulders. The novel’s title is an allusion to the Titan, discussing what might happen if those supporting the world suddenly decided to stop doing so. In the novel, the allusion comes during a conversation between two protagonists, Francisco d’Anconia and Hank Rearden, near the end of part two, chapter three, where Francisco suggests to Rearden that if he could suggest to Atlas that he do one thing, it would be to shrug.

Howard Roark in Fountainhead is equally famous. Though he is not as voracious as Galt in stopping the motor of the world, he does only what he thinks is right. But why do I feel that these two characters are important in our lives at this institution (NALSAR)? The reason is simple. We live in this place bound by four walls and rules that we just are meant to follow in as much as we don’t want to follow them. Two thing I feel we must realise; a) that there is life beyond the four walls of this college, b) Reading law or gossiping all day will restrict our creativity and we need to find new avenues.

In light of this, I am glad that Galt found a place in our discussion. We need to look beyond the 300 faces that we see everyday and do something productive with our lives. Roark decided to look beyond, we must encourage people to do the same too. There’s so much to do in life that we forget and spend the whole day chatting about our daily morose lives in trying to bring about some happiness. To that extent, I approve of Rand. Because she has now become the symbol of someone who wants some direction in life. She has become the object and sensuality of a few people who decided to ‘screw’ the rules and do whatever they feel like doing. That does not turn into a revolution, but creates an idea in the minds of the few who give it a thought. I propose to breed this thought in a few. But yes, leaving the above discussion aside, as a closing note I feel a lot needs to be done to encourage reading in this college. New batches arrive and we hardly find anyone who reads books. With specific mention to the C-CLS, this should also be one of our aims.

– Aditya Swarup

Creative Freedom v. Moral Policing

I saw the google news site and read about the Bipasha- Ronaldo kiss. Oh well! I realised that there would be more controversy now after the whole Gere- Shetty episode a few months ago. Sepia Mutiny has a humourous post on this issue. But the aspect that I’d like to concentrate more on is that of moral policing. Not only the issues of kissing are important here, but also restriction of creative freedom (the Vadodra Art incident). Bipasha’s replies to this latest scandal are clear, “So What. It’s just a kiss”. That’s parrhesia and I admire her for it. For she stood up for what she thinks is right and decided to break the barriers of nonsensical morals prevalent in the Indian Society.

Arun Mohan (III yr) has something interesting on this issue, It’s something he wrote when the Richard Gere episode took place but I think its pretty relevant here.

“Perhaps this post comes at a time when the Vadodara art attack controversy seems to be in the letting-off-steam stages. However, it is imperative that we address the larger, more significant question that has been churned out from the incident.

The uninitiated may read about the issue in question at “NDTV.com: Art Held Hostage in Vadodara , http://www.ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20070011802″

Incidents of such nature are not too uncommon in present day Indian society; be it the ruckus created over the Richard Gere-Shilpa Shetty incident or the commotion made over M.F Hussain’s works depicting Hindu Goddesses in the nude, or for that matter the attack made on the Tamil Daily Dinakaran’s office in Madras over a controversial opinion poll. At the onset, it is stated that I do not wish to delve into the premise of merits/demerits of moral policing and media-gagging; nor am I speaking from the standpoint of the urban, educated and liberal citizen. There are always two sides to a moral/ethical debate (irrespective of which weighs more) and to enter it would be futile.

What then am I broaching on? To reiterate, the larger perspective simply must focus on the question of human rights. We are, vis-a-vis the context of discussion, talking about the freedom of speech and expression; one that has been recognized, respected and documented since time immemorial. To quote a learned man;

“I may not agree with what you say, but I shall defend to death your right to say it” – Voltaire

Society has been stirred, revolutions have occurred and autocracies have been thrown in the fight for this mighty and noble right. Fundamental in today’s society, in both layperson and legalese terms, the Indian Constitution recognizes it under Article 19 (1) (a). However, many would surely be aware of the fact that a right in paper cannot be equated to a right in actuality. Hence, what we are all concerned with here, is the way/attitude that has been adopted towards the exercise and restraints pertaining to rights fundamental in nature. Whether the ’saffron brigade’ decided to vandalize the art exhibition at Vadodara is of no concern to me at this juncture. What is disappointing however, is the towing of a similar line by the police, very much a State appendage. A lower Court in Rajasthan decides that a display of antics by Gere and Shetty amount to gross obscenity; are we witnessing a gradual recession in freedom within the freedom given to us? perhaps, a signal to society from State machinery and guardian institutions like the Judiciary that our rights, far from being absolute, are subject to the whims and fancies of morality of those vested with power?

Questions such as these need to be raised, answered and sensitized to the populace. Only then are we realizing our ideal of political participation in the world’s largest democracy.”