Tag Archives: law

That in which I contemplate the effects of punching or getting punched in an Uber!

Uber provides a service by which people who need a ride can just log into the Uber application on their phones, and request a ride. This application pairs them with drivers who happen to be in the area, and are available to give them a ride. Uber receives a credit card payment from the customer, most of which is given to the driver.  This has been described as technology that has revolutionized how we see the taxi service.[1] Someone with a mobile phone and the right app, can call a cab. And anyone with a car, the app, and driving skills/ licence, can be a driver (at least that is how it started out). They can use their phone to pay the driver, as well as rate them. This has given Uber great success, and it has even become the face of peer to peer economy (along with Air BnB). Uber has encouraged this narrative of peer-to-peer economy

Peer to peer economy (or a sharing economy) is one in which an owner is not using something, they rent the thing out, with the help of a technology that gets the buyer and seller (or a renter and leaser) together. This company charges a fee for this. The company (Uber in this case) says that it is not an employer, but a facilitator of micro-entrepreneurs. It does not pay for overheads like fuel, insurance, vehicle maintenance, and neither does it cover liability for any accident on the job. Why would it? It is not an employer. According to Lyft (a company that has a similar modus operandi), the drivers are really doing a service for the passenger, and ‘Lyft is a by-stander of sorts, analogous to e-bay’[2].

But there is just one problem in this narrative. This practice of companies that are employers claiming that they are not employers is age-old. It is done to get over the hurdles of paying benefits to their workers, and covering on-the-job accidents. Consider this case reported in the Forbes magazine. Omar, an Uber driver in Los Angeles took his passengers to their apartments at 2:30 AM at night. Two of the passengers beat this driver up, and he ended up being admitted to the hospital.  [3] This, however, is not an isolated incident. This same newspaper reports multiple incidents of cars being stolen and drivers being assaulted. The problem is, given the narrative of the company being a ‘facilitator’ and not an employer, these workers cannot get any assistance from Uber.  While we shall be dealing with the legal issue in subsequent paragraph just think of what this means. It is the idea that a man working at the behest of a Corporation (valued at billions of dollars), and getting hurt on the job, is not paid a dime of assistance. Does this not militate against the idea of fairness?

However, Uber’s problems don’t end here. Uber has been publicizing the idea that it can be an avenue for creating jobs for women. In fact it aims to create 1 million jobs for women. (It is difficult to understand how one can create jobs without being an employer, but okay, I guess they plan to facilitate a million entrepreneurs). Despite their admirable goals, the fact remains that if there is a case of sexual assault on any of their drivers in the course of work, Uber claims no responsibility to compensate the victim. UN Women, which had earlier decided to partner with Uber in this project, has now dissociated itself, citing concerns with sexual assault on women. [4] Interestingly, Uber got a lot of bad press in India, when, after a rape case involving an Uber driver and a passenger (who was the victim), it was shown that Uber did not even conduct background checks on its drivers. [5] In fairness to Uber, they have now started to put more stringent checks in place in India. Also here is a detailed description of the background check procedure that Uber follows. But there is also a very real loophole in the legal framework. What happens to a female driver who gets sexually assaulted? Does Uber take responsibility to provide compensation? If they say they are not employers, then NO. Similarly, there is no clarity on Uber’s liability to pay compensation to passengers who get assaulted in the vehicle.  I am not suggesting that an Uber ride is less safe than other taxis. That may not be the case, but certainly the legal position on compensation in case of injury in the cab is not clear.

As far as the employer-or-not issue is concerned, now there are Uber and Lyft employees that have decided that they are not buying the by-standers positions, and the two companies face a class action lawsuit that could possibly change the topography of the peer-to-peer economy. These employees in the USA claim that though they are classified as independent contractors, they are actually employees and the companies owe them reimbursement for overheads, and compensation for injuries on the job. This is something that concerns employment lawyers everywhere, so really this case is worth following.

The legal defense of Uber, and a seemingly solid one, can be summed up in the words of an attorney with the Employment Law Group, “They don’t have to show up to work on Monday at 9 a.m. if they don’t want to…What they’re not understanding is that this lack of control — where they can have a two-hour lunch if they want, or no lunch at all — that freedom comes at the price of if they’re in an accident, the company doesn’t have to pay.”  [6]

At the moment, things seem to be going in favor of the complainants. Uber’s request for summary judgment, and a declaration that its drivers were independent contractors was rejected by the District Court. The matter is now going to Trial before a jury. One strong argument in favor of the drivers is the economic realities test.This test does not only focus on the level of supervision involved in a job, but also the extent to which employees depend on the existence of the business in question. Some of the factors that are considered to determine ‘economic realities’ are mentioned under the Fair Labor Standards Act. [7]   These are as follows:

  • The extent to which the work performed is an integral part of the employer’s business: This is a factor that goes in favor of the drivers, because Uber or Lyft would not have any utility without the service provided by the drivers.
  • Whether worker’s managerial skills affect his opportunity for profit or loss. Given that Uber assigns the passenger to the driver, whose job is to take said passenger to the pre-determined destination, it can hardly be said that this job requires managerial skills.
  • The relative investment in the equipment and facilities by the worker and the employer. In this case the drivers made a pretty significant investment of their car and fuel money. However, I would argue that it is not at all comparable to the investment made by Uber in running and developing the application.
  • The worker’s skill and initiative. To show that a person is an independent contractor, it must be shown that he or she exercises independent business judgment. That does not seem to be the case here.
  • The permanency of the relationship between the worker and the employer. Permanency suggests that a worker is an employee, and this is one factor that strongly goes against the drivers. They do have the independence to stop working for Uber anytime they desire, or not work whenever they feel like it.
  • The nature and degree of control by the employer. Like the preceding factor, this one also goes against the drivers, given that there is a very limited degree of control exercised over the drivers by Uber.

Given that none of these factors are dispositive, there is a chance that the drivers may win the lawsuit against Uber. But one must stop and ask the question, are mis-characterization lawsuits (i.e the one’s where you claim that the workers have been characterized wrongly) really the way to go here? If the employees do win this lawsuit, and end up owing huge sums of money to the workers, what impact will it have on the long term health of the peer to peer economy?  And is it really a good idea to try and fit a revolutionary new concept into old tired methods of classification of labor? This does not mean that Uber and Lyft should continue with their unfettered business model. There is a very strong need for regulation, but there is also a need to understand that shared economies are sui generis, and old methods may not work on them. Perhaps new laws can be enacted that place a burden on these companies to take liability for injuries or accidents at the workplace, but not reimburse for overheads? The drivers could be given some sort of quasi-employee status, so that the regulation does not ultimately kill this new method. There must also be some framework of compensation for people who get hurt or sexually assaulted during their cab rides.

I would also like to ask whether there is a possibility for the unionization of Uber and Lyft drivers. What would this relationship be like? What kind of bargaining power would the union have, given that there crowd-sourcing makes the supply of drivers willing to do the job on the terms of Uber inelastic. Further, can unions play a significant role in the dynamic, changing relationships that the drivers and Uber have at the moment? Only time will tell.

[1] http://www.bloombergview.com/articles/2014-06-12/don-t-stop-the-uber-revolution

[2] http://uberlawsuit.com/Time.pdf

[3] http://www.forbes.com/sites/ellenhuet/2015/01/06/workers-compensation-uber-drivers-sharing-economy/

[4] http://www.theguardian.com/technology/2015/mar/23/united-nations-uber-womens-safety

[5] http://www.reuters.com/article/2014/12/11/us-uber-india-courts-idUSKBN0JP18T20141211

[6] http://www.forbes.com/sites/ellenhuet/2015/01/06/workers-compensation-uber-drivers-sharing-economy/

[7] http://www.dol.gov/whd/regs/compliance/whdfs13.htm

Advertisements

Did your law education teach you to challenge the status quo?

Disclaimer: Today’s blog post is going to be anecdotal and subjective. Constraints of the subject I am writing on.

Let me start by telling you why I decided to study law. From a very young age I saw law as a tool for social change. Growing up as I did in the states of Odisha and West Bengal, it was hard not to feel that way.

West Bengal of course had that glorious (but quite dark in parts) period in its history where the landless and the underprivileged stood up to demand their rights.The need for an equitable distribution of land was thrown into the lime-light and took up a big part of the discourse.

Odisha, while I was there was in the middle of an interesting churning. Mining companies were increasingly trying to make inroads into the land of the tribals. There was a genuine push back from the tribal communities, as the land that was sought to be taken away was often a source of livelihood, cultural identity, and in one case (namely that of the Niyamgiri hills) it had religious significance.

Incidents such as the protests and Nandigram and Singur took place in West Bengal, before I finished my twelfth grade and both these incidents (though largely ignored by the national media) shook the Bengali imagination,

The law seemed like a source of comfort, and the legal system a safe space where one could agitate against the excesses of the executive. The judiciary had inspired, and to a large extent still inspires the trust of Indian citizens. It felt natural then, that law could, and was supposed to be used as a tool by which existing power structures could be challenged, and sometimes lasting change could be brought about.  

Later I learnt  that law was not always a tool for social change. In a large number of cases it was a tool for maintaining the status quo, promoting vested interests and reinforcing power equations. If you look around to see the ‘chattelization’ of women under Indian adultery law, or the treatment given to persons with mental disabilities, the criminalization of certain sexual acts between consenting adults, you begin to realize that like our society, law is a conflicting site of various points of view. There is a tug of war between vested interests, and we can only hope that the march is towards progress and not regression.

I joined ILS Law college in 2007, and studied there for five years. In the course of this I met some brilliant professors, and some genuinely interesting people. These people, like me, joined the law school right after 12th grade, at the age of 18. They studied with me for five years. During my studies, and after graduation, I met people from various other law schools, some of whom  I got to  know well. So I feel that I can write about law education in India with a bit of authority, if not with the same ease and confidence that a pedagogue displays.

Of late I have been thinking of what legal education in India has achieved, and more over what it has failed to do. This got me thinking about one very specific aspect of legal education. Did it in fact teach people to challenge the status quo? And more fundamentally should it teach people to challenge the status quo?

My experience is that there was nothing substantial in the education most law students were given, that really taught us to analyze why power structures exist, and whether we should challenge them. The initiative was largely of individual teachers.For example I must mention Professor Jaya Sagade who completely changed the way I read and understood the law. She taught us at ILS not only to read a statute but also ask ourselves why it exists, who it benefits and whether we agree with it or not. If I had not had the honor of studying under her, I don’t know if I would be here asking these questions.

I asked a few other people people I know this very question question. On asking a classmate whether her law education taught her to question the status quo, she said, and I quote her: 

“no it did not instill in me the spirit to challenge the status quo. my law education except the subject women and law taught by Prof Sagade, was entirely based on the rote approach. I could not appreciate the peculiarities or circumstances that involved the legislature to draft the legislation.
also our system is not dynamic enough we either are under the tutelage of professors who want you to get marks or seniors or partners who want to make money.”
Another person I asked the same question felt that it was not really the job of legal education to teach you to challenge the status quo, but it was their job to give you the skills needed to survive. 
Another person had this take:
“personally dont think any education (law or otherwise) will help you challenge the status quo unless you feel for the cause so much so you decide to challenge it..nope i dont think law education helped with that..its a personal response, i dont think law edu did that for me .. for some maybe the need to challenge comes through law education, but it didn’t for me..”

Of all the people I spoke to, only one person felt that her law education had helped her challenge the status quo, because it helped her understand the rights of people, and if the status quo went against those rights, it had to be challenged.

I have included these anecdotal excerpts because I wanted to paint a slightly more representative picture than simply talk about my experiences. But having considered everything, I must mention certain systematic problems in the way our curriculum is built, financed, and the way we perceive law education.  I will try to list some of them:

The issue of attitudes.

I remember seniors, lawyers, colleagues, and teachers all telling me, in a very well meaning manner, that I should not call myself a ‘human rights’ lawyer because human rights lawyers are not taken seriously. I have heard lawyers representing an NGO just being brushed off in Court (irrespective of the merit of their argument) on because NGOs are ‘publicity hungry’. Whenever people articulate the idea that a law expresses  a male point of view or the point of view of the rich, their objectivity is questioned as they are ‘channeling a feminist agenda’ or a ‘socialist agenda’. However the blatant channeling of patriarchy or capitalism is considered ‘neutrality’.

Products of law school are much more comfortable with ‘doing whatever it takes to win a case’ but uncomfortable with taking an ideological stance, because while the former is what lawyers are supposed to do, the latter is a sign of weakness. Human rights and their allied concerns are packed off and kept in a separate enclosure away from the main body of law, as if most law is not the articulation of the rights of human beings. 

In India people have quite forgotten the link between criminal defense and human rights, and the two are mostly seen in water tight compartments. 

Until issues like human rights and human entitlements take their place in the mainstream of law, I feel our legal education will be stunted, producing people who can accomplish given tasks, but not think critically.

The issue of finances.

Law education in India is not a cheap affair, if you are joining a National Law school. The fees are to the tune of Rs 7 lakhs for five years. (My friends from National Law Schools can correct me if I am wrong). It seems to me that a student from a economically underprivileged background can join these schools if she takes a loan (or is given a scholarship). Scholarship students do not really form a large chunk of the student body, so I am presuming that a lot of underprivileged students who join these colleges take loans. This makes it very difficult for them to take subjects/ jobs that do not make them employable for high paying jobs. So we see a situation where students who would have a rich perspective on  challenging the status quo, themselves being from an under-privileged background, are actually prevented from doing so due to the  financial framework of a legal education.

Litigation is notorious for not paying well in the initial years, which means that we do not really want to give ease of access to those who are not economically well off. There is little wonder then, at the fact that litigation essentially becomes a place for the sons (sometimes daughters) of established lawyers, with little room for a new comer.

The lack of an interdisciplinary approach.

Social sciences are still thought of as ‘matters of opinion’ by a large body of law students. A very small number of law students or young law professional read about politics, sociology, economics, except to pass exams).

This does not leave much room for them to apply an inter-disciplinary approach into making their arguments. At the Supreme Court and some High Courts one does get to see this kind of innovative litigation now and then, but it hardly permeates into all levels. 

This is because while being taught about a law, we are rarely ever asked to think about questions of justice, and politics. 

It is quite like that cave of Plato’s we learnt about. Most people see that dance of shadows, spend five years or entire lifetimes believing that to the reality.

But perhaps I am wrong. Maybe the legal education in India is churning out masses of sensitive critically thinking people, who may not want to devote their lives to public service, but do spend a lot of time thinking of and debating ethics and morality. Maybe they regularly question social organization, or existing power structures.

Perhaps I am wrong at a more basic level. Maybe no education is meant to teach you to challenge the status quo. Maybe the job of an education is to just make you competent at research and well spoken.

Maybe you just need to be taught how to hold a fork and spoon, and never ask why some people go hungry.

If so, the correct my impression with a comment below. If not, let us help everyone (including ourselves) get out of the cave.   

The death penalty. Or ahem. how I learnt to love dispassionate debates.

Yes that was a badly executed Kubrick reference.

There is something that often happens whenever the death penalty comes to be discussed. Those against the death penalty will talk about the value of human life, and why we can not play God. Those in favor of it will mention that there was a person X who brutally murdered Y (usually a child). They will then go on into the gruesome details of the murder. Those listening will get extremely worked up. The person against the death penalty will shake their head dolefully, ashamed and chastised.

The implicit argument here is: how dare you suggest that THAT man/woman live!!

Now what this sort of a debate ignores is that the issue of the death penalty does not have much to do with THAT man. It is a bigger issue, involving nuanced ethical questions. The problem with introducing ‘THAT’ man into the equation, is that it clouds your judgment, as well as that of your listeners. 

The truth, that debates have to be dispassionate, dawned on me before I was a ‘grown-up’. I had decided, very early in life, that Saurav Ganguly (the Indian cricket player) shall never be criticized. I went on to enforce this by attacking those who criticized him, with all my might (verbally of course). What soon happened was that people stopped discussing the man with me. It is not that I had changed their mind. I had just cowed them into not bringing it up anymore. 

This is how we talk about most pressing issues of the day, whether it be the merits of a leader or the relevance of an ideology, and especially something like the death penalty. We take a stand, backed up by one shocking example and then fit the facts to match that stand. We do not leave any room for the possibility that we may be wrong.

But given that the death penalty is literally a life and death matter (yes, an example of where literally CAN be used), there needs to be a dispassionate discussion on it.

I am using this post to highlight certain issues that seem to be pertinent to me. I am not going to stick to strict legality, but am going to go into the ethics of the issue as well. I have tried to make this a post that both lawyers and non-lawyers can read, and I have also tried to build a sort of consensus with this post. Also this post is India centered. I have tried to make it easy for people from outside to follow by giving related links (usually wikipedia).

The most important issue with the death penalty is the possibility that innocent people may be hanged (or whatever form of punishment it is that your country practices, in India it is hanging).

In America we have the phenomenon of DNA exoneration (something that has shown that a small but significant number of innocent people were given the death penalty). 

Here is a video of Jon Oliver discussing the perspective from USA.

I highly recommend the video as it was one of the seeds for this post.

But! Some of you will exclaim. How relevant is that in India? We hang far fewer people here, and the threshold is the rarest of the rare case. Is it possible then, that an innocent man will get the punishment?

Let us examine the case of Mr Devinderpal Singh Bhullar, a man who is in most quarters believed to be a terrorist. He was sentenced to death due to his involvement in a bomb blast case.

So far so good?   No.

Interestingly the only evidence against Bhullar was a confession he ‘voluntarily’ made to police about his involvement in the bomb-blast, while he was being questioned on passport forgery. The dissenting judge, Justice M.B Shah, acquitted Bhullar on the ground that his conviction in the lower courts was based on one uncorroborated confession to the police (www.huffingtonpost.com/marcia-g-yerman/bhullar-case-india-human-rights_b_4582716.html)

Under Indian law, confessions to the police are not admissible as evidence. Of course the law Bhullar was convicted under was the Terrorist And Disruptive Activities Prevention Act which allowed placing reliance on such confessions.(http://en.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_%28Prevention%29_Act).

Mr Bhullar’s death sentence was finally commuted by the Supreme Court on the ground that there was an inordinate delay in executing it.(http://timesofindia.indiatimes.com/india/SC-commutes-Devinderpal-Singh-Bhullars-death-sentence-to-life-imprisonment/articleshow/33006245.cms).

But this leaves us with the question that ethically do we think that a guilty man was sentenced to death given the nature of the evidence against him?

Since newer questions are being raised on the veracity of eye-witness testimony and the wisdom of sentencing people to death based on circumstantial evidence, we need to put a system in place that allows for things like DNA exoneration, so that we know how many innocent people we sentence to death. Additionally given that poorer people often do not get good legal representation, whether one is sentenced to death or not, does have an economic angle to it.

The second issue is the issue of the arbitrariness inherent in the death penalty.

There are some judges who are more likely to give the death penalty and some who never do. This is an open secret of our judicial system. In fact it is not even a secret. There are instances of people getting different verdicts for similar crimes, depending on the bench they came in front of.

Given that it is human beings who hand out these sentences, it is very possible for subjectivity to enter the equation. But the problem is, this subjectivity decides who gets to live and who gets to die.

Even if one admits that, in principle, it is okay to sentence people to death, can any reasonable person be okay with it turning into a lottery based on the subjective sensibilities of a judge?

There are rigorous guidelines in India regarding when the death penalty can be given, something that was done in the Bachan Singh Case { for those who want to read it http://www.indiankanoon.org/doc/1235094/}  but these guidelines are not always followed.  In 2012, 14 retired judges asked for 13 cases of the death penalty to be commuted after admitting that the original sentence was handed down ‘per incuriam’, i.e. not in accordance with the procedural safeguards laid down in the earlier cases.

It requires a bit of reflection, and perhaps impartial studies into how arbitrary the process of sentencing someone to death, in India, actually is.

The lynch-pin of the argument for the death penalty is deterrence. The jury is still out on that, though more studies seem to suggest that there is no deterrent value in keeping the death penalty out of the statute books http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence). Though intuitively people will be inclined to reason that the possibility of death would deter a criminal, the most heinous of crimes (rarest of the rare) are often committed by psychopaths or hardened criminals. Neither are very likely to be deterred by the prospect of the death penalty (given the complex factors that go into the commission of a crime by them). 

The average person is much more likely to be deterred by a swift trial and the very real likely-hood of serving jail time. In fact crimes like rape-followed-by murder, acid attacks that cause death, khap panchayat killings or dowry deaths (where a woman is killed because she can not pay a certain sum of money to her husband’s family) often happen due to the culture of impunity in our society, where people believe that they can ‘get away’ with committing a crime. These people are certainly not deterred by the academic possibility that they might be sentenced to death someday. Till we address this culture of impunity and fix the delays in our criminal justice system. the death penalty will just be a placebo we take to feel better.

Phew, so at the end of all this we come to the thorniest subject.

Retribution.

Are the crimes committed by some people so terrible that they deserve to die?

I feel that while people cite different reasons for supporting the death penalty, it often boils down to some sort of idea of retribution. Why should THAT man live? Why should we spend on THAT man’s food and lodging? Have you no consideration for what the victim’s family goes through.

Of all these questions it is the last one that deserves the most serious thought. Honestly I have no answer to that particular question. I can not preach to the family about the need to forgive, or the need to let go of what is termed as ‘blood lust‘. Losing a near one to a violent crime must be a traumatic incident that I can not even pretend to comprehend. How one copes with the grief, is an entirely personal matter.

But should this consideration dictate policy? In my opinion,no. Policy should be dictated by the larger ethical issues of the arbitrariness of the death penalty and issue of innocent people being convicted.

So what I want you to do dear reader, is to ask your self whether living or dying, under the criminal justice system should be a matter that depends on who your lawyer was, who the deciding judge was, and various other subjective factors.

I also want you to think about the fairness of an irreversible punishment like the death-penalty, when there is a real chance that the person concerned may be innocent, as the innocence project in the United States of America has shown. (http://en.wikipedia.org/wiki/Innocence_Project).

And leave your comments below.

Cheers!

Marital Rape: A contentious site

It was a few years ago that a friend of mine was asked the following question by a colleague:

‘Suppose you were to be raped, would you not prefer to be raped by your husband or a friend, rather than a complete stranger?’

Now while this statement is callous and inappropriate on several levels, to me it was an illustration of the huge gulf between the way people with and without empathy view rape. This gulf is hardly noticeable when people are talking about a brutal gang-rape, which inflicts grievous injuries on the victim. In such a situation it is very easy for most people to agree that what happened was terrible, and that the perpetrators should be given swift punishment. The gulf, however, becomes increasingly visible when some of the ‘typical’ features of a rape are missing. A few common examples are when the victim happened to be out late, or when she was drunk or had been in a prior relationship with the accused.

Our collective consciousness, fed on decades of television and cinema portraying rape as, ‘izzat lootna’ (robbing of honor) with a ‘hapless’ ‘chaste’ victim, just cannot process the idea that rape is something that can happen to a woman who wears dresses, has a boyfriend, or goes to bars.

One such contentious issue, which is a product of our inability to process what we consider ‘atypical’ rapes, is the idea of marital rape. To be absolutely clear, under Indian law, forced intercourse between a man and his wife is not rape, unless she is less than 15 years of age, or unless the wife is living separately. Hence, marital rape is not really recognized under Indian law, except in these two circumstances.

Whenever I have articulated the idea that marital rape should be a punishable offence, I have made even the most well-meaning men uncomfortable.

Some reasons for this discomfort are genuinely products of flawed logic. Try and tell them that marital rapes happen, and that they should be punished just like any other rape and you will have people bring in the issue of the misuse of Section 498A of the Indian Penal Code into the equation. When you try to tell them that statistically it has not really been established that Section 498 A is abused more than any other law, they will tell you about an uncle who had to go to jail because his daughter-in-law filed a false complaint. By this time the conversation would have shifted away from rape, to how educated women misuse laws, and the women laws are really supposed to help (i.e. hapless chaste women) are not really getting the benefit of the law.

What people who engage in this form of a ‘Straw Man’ debate completely forget is that not recognizing marital rape is an invidious discrimination against women who are married, and perpetuates the idea that it is acceptable for husbands to violate the bodies of their wives. Given this situation the law must provide a remedy, and it is lamentable that the Criminal Law Amendment Act of 2013 did not take the opportunity to do this.

We must, however, examine one fear regarding the recognition of marital rape that has some merit. I feel that while the ‘preservation of the family’ argument is generally believed to be the reason marital rape has not been recognized as a crime, another reason is the nature of the of proof under Indian Law for rape cases. Under Section 114 A of the Indian Evidence Act where sexual intercourse by the accused is proved, and the woman states in her evidence that she did not consent, the court shall presume that she did not consent.

This shifts the burden of proof on the accused to prove that he is innocent and that the intercourse was consensual. The reason for this reversed burden of proof, of course, lies in the social and political contexts in which rapes take place, and is meant as a shield for a survivor who is already faced with the difficult prospect of a trial. Our law makers have attempted to save a victim from the arduous process of having to prove that she did not in fact consent, in a criminal justice system that is already extremely hostile to the victim. Even though this is a departure from the traditional burden of proof, most reasonable persons can see the rationale behind this.

However, where this provision becomes problematic is while looking at the issue of marital rape. Traditionally, in the Indian legal system, the fact of marriage is adequate to prove what is termed as ‘sexual access’ i.e. proving that sexual intercourse took place becomes extremely easy. If you combine this with the fact that there is a reversed burden of proof regarding consent, we arrive at a very tricky situation.

In the event that the accused is in fact innocent, it will be nearly impossible for him to prove his innocence due to this double presumption. It is this possibility that adds fire to the ‘the man will be damned’ fears of certain groups of people. Irrespective of whether these fears will come true, there is a reasonable possibility of an innocent man getting trapped due to the reversed burden of proof.

Of course this argument does not mean that marital rape should not be recognized as a crime, or should be given a lighter punishment, but that we need certain procedural safeguards in case of marital rape.

I understand that this suggestion will be incendiary since there will be a section of people who will see this as an attempt to draw an artificial distinction between marital rape and other kinds of rape (something that I criticized at the beginning of this article). There will also be people who will think I am buying into the idea that women actively misuse laws. I am trying to do neither. I do not think there is any evidence to prove that women misuse laws any more than men, or that marital rape is in any way a ‘lesser’ offence. But as a person who values liberty, I approach all reversals of the burden of proof with some skepticism. Due to developments in our rape jurisprudence, and the hostile nature of our criminal justice system, we had to make changes in the burden of proof. In the case of marital rape, I feel that it is this reversed burden of proof (combined with the presumption on access) crossed a line and becomes draconian. This burden of proof is, in my opinion, one of the things preventing the law-makers from bringing marital rape into the statute book, and till we bring procedural safeguards on the table, marital rape will not be recognized as a crime.

I understand that these procedural safeguards will shift the burden back to the victim (merely because she is the wife of the accused), and this situation is far from satisfactory. But marital rape is a complex issue, and I do not anticipate that there will be a clean solution that will satisfy everyone. This article was an attempt by me to call for a certain amount of pragmatism, and maybe highlight the need to reflect on the anomalies that reversed burdens of proof throw-up. There is nothing I would love more than those with better ideas, coming up with a solution to this problem. But given the time of outrage we live in, what we need to most is to start a dispassionate dialogue.

 

 

 

The hornet’s nest that is the Uniform Civil Code: and do we need to stir it?

I know invoking the phrase ‘Uniform Civil Code’ is going to get passions riled up right away. There will be people with mental images of a united India, striding on a tiger towards a glorious sunset/ sunrise. There will be those who imagine a powerful state shoving a cruel provision down the throats of unwilling minorities.

Let us let go of those mental images for a bit. I understand that it is not very easy to detach oneself from one’s ideology, but let us try for the next ten-fifteen minutes to think of the Uniform Civil Code as a common set of personal laws governing all persons in India.

My post will attempt to analyze this demand by talking about what its defenders and detractors say, and possibly suggesting a solution to the impasse that we have reached over this issue. One of the peculiarities of this impasse is that while the Uniform Civil Code affects all communities, the debate is centered around Muslim Personal Law. 

An explanation of this can be given by the fact that the post-partition period was fraught with sentiments that ran high, and shortly after this, attempts began to codify personal laws. While Hindu Personal Law was ultimately codified, it was not an easy affair. When the Hindu Code Bill was initially proposed, it was first opposed by the President of the Country at the time. Subsequently due to the heated debates that followed,and the President’s threat to resign, even Jawaharlal Nehru withdrew his support to the bill. This impelled a disillusioned Dr Ambedkar to resign.

Be that as it may, the Congress came back to power and Hindu Personal Law was codified. However, due to the injury the psyche of the nation had received during the partition, and due to the fact that the Prime Minister believed that the majority has a certain moral responsibility towards respecting the sensibilities of the minority, Muslim Law did not undergo the widespread reform that it does require. 

Whether the attitude of Pandit Nehru was correct or not, I shall leave to historians and political scientists to decide. It is not the job of a mere blogger. But I shall say this, his actions were open to misinterpretation, and were promptly given the tag of minority appeasement. As a result of this, the issue of the Uniform Civil Code, which was actually an issue of fair and equitable personal law, became hijacked by the Hindu Right, as an issue of national integration and minority appeasement. (the word hijacked here only means that the tone and proponents of the discourse shifted, it is not meant to cause any offense to any community). (For further details on this process of the Hindu Right taking over the Uniform Civil Code discourse read ‘Subversive Sites: Ratna Kapur and Brenda Cossman (Sage Publications)’.   

However, there are two things I need to clarify first:

a) Muslim Personal Law is not the only personal law with inequitable provisions or a gender bias. The Parsi Personal Law also has several ambiguities due to which girls who marry non-Parsis, or girl children born of a Parsi and Non-Parsi union have to suffer. Bringing reform in Christian personal law was also an uphill task, which is being accomplished bit by bit. 

b) Most persons think that when we talk of Muslim Personal Law in India, we talk of Sharia Law. I am ashamed to admit that this is a mistake even I have made in the past. However, NO Muslim personal law in India, is NOT Sharia Law. It is what is called Anglo-Mohameddan Law. This is the body of law that came into existence as a result of judgments in British Courts in India, given by non-Muslim, British, and sometimes even Muslim judges who consulted the Hidayah, written by Mirghayani, a Hanafi scholar.Sometimes they also consulted some Maulavi before delivering the judgment.

When people defend Muslim Personal Law, it is this law that they are talking of, not Sharia Law.  For further details read Ashgar Ali Engineer in this wonderful article: http://www.csss-isla.com/arch%2025.htm

Now to delve into the Uniform Civil Code issue.

The Defenders of the Uniform Civil Code:

1) It can remove human rights abuses inherent in certain provisions of personal law, particularly relating to the rights of women.

This is perhaps the most important aspect of the demand for a Uniform Civil Code, since critics of Muslim Personal Law particularly cite triple talaq and polygamy as the worst features of the personal law.They further argue that not having a Uniform Civil Code amounts to discrimination between Hindu Women and women of Minority Communities.

2) Unity of the nation

This is perhaps the most problematic aspect of the demand for a Uniform Civil Code. It assumes that the communal strife the nation faces can be removed by making people practice the same personal law. However, there is no evidence to suggest that this will happen, just as there is no evidence to suggest that imposing a common language on the nation ensures people will be more united. To extend the analogy further, people of Bihar and Uttar Pradhesh both speak Hindi, but I am yet to see any special unity between them. 

Of course, there is no way for me to say that it WON’T create a sense of unity among different communities, but that is neither here nor there. 

3) All ‘civilized’ countries have it.

The problem I have with this argument is that the circumstances of those ‘Civilized’ nations are not the same as ours. They are much smaller, have much less diversity, and do not have a horrific partition as historical baggage. Also there are been negative consequences in countries which have tried to impose cultural norms on unwilling minorities: e.g. Women threatening to immolate themselves in Turkey due to a ban on headscarves. A similar move from France also received stiff opposition from women.

Anyway, the Indian context is different, and what has worked for other countries, may not work for us.

4) The Constitution says it.

Well yes, the Constitution does say we ought to try to bring about a Uniform Civil Code, in the DIRECTIVE PRINCIPLES OF STATE POLICY. This section contains a lot of provisions that we have not been able to implement, and some which we have abandoned  due to changing times (such as prohibition).

So if in this day and age, we find that a Uniform Civil Code is not a good idea, we can move away from it and try to work out other solutions.

But now let us examine the other side of the fence.

The Detractors of the Uniform Civil Code.

1) Amounts to disrespecting personal law/ religious beliefs of a community

Right, so let me say this right away.

Human Rights > Religious beliefs

You simply can not violate the rights of women and call it your religious beliefs. 

It is disputed whether the religion actually promotes these beliefs

Polygamy is not really encouraged by Islam, it is permitted in certain conditions. Infact (refer to Mr Ashgar Ali Engineers essay above) it is believed that the Prophet reduced the number of wives that men could marry, quite a radical step for that time. Similarly, the triple talaq (said in quick succession) is also not encouraged by religion.

2)It will create a sense of alienation among the minorities.

Well, frankly speaking a majority of the members of the Muslim community are not opposed to reform. Mr Engineer found that

“some prominent Ulama from Deoband, Lucknow and Aligarh, to our pleasant surprise, favoured abolition of triple divorce and they were critical of Muslim Personal law Board on its insistence to retain it.”

Perhaps the problem is not so much with the Muslim Community, but with certain voices in it, who claim to have the right to represent the whole community. What these voices forget is that Muslim Women are fifty percent of the population, and their voices count too, while making decisions on the state of personal law.   

3) The Hindu Right’s advocacy of the issue has now made it an excuse for cultural aggression.

There might be some merit in this, particularly since the manner in which the Hindu Right has driven the discourse behind the UCC, combining it with other highly contentious issues such as the temple at Ayodhya, the consumption of cow meat, teaching history in the ‘right’ perspective, makes any debate on it an extremely charged one, with neither side willing to concede an inch, for fear of getting the short end of the stick.

Is there a way out?

Yes there is. But the way out involves something that people on neither side of the debate are willing to do. COMPROMISE.

Given the bitterness over the UCC, it seems to be very difficult that it can be enacted without widespread bitterness in sections of the Muslim community. One does not know how widespread this section or the bitterness will be, but it may be better to look at the two other alternatives before us:

a) Why not an OPTIONAL CIVIL CODE

I know what I am proposing is radical, hard to imagine and we will need the best legal minds of the country to work on it before it can be a reality. But what if we can create an Optional Secular Civil Code that persons can chose to get registered under and be governed by. This way we give room to men and women of all communities choosing to opt out of outdated provisions of their personal law, and be governed by the Optional Civil Code. While the Special Marriage Act does this to a certain extent, by allowing people to opt out of their personal law relating to marriage, an Optional Civil Code would have comprehensive provisions regarding marriage, inheritance, adoption, guardianship all in one place. 

Given the emotional baggage attached to the UCC, the Optional Civil Code, if framed well, can give us a fresh start as a society. It will also let Muslim Women (and women of other communities) opt out of their personal law, instead of having to wait for that law to change. 

b) Reform of personal law at a fast pace   

Things need to change with personal law, and yes there has to be a certain degree of uniformity. But this result can be achieved by a fast paced reform of personal law of communities,in tandem. By doing this, the human rights violations in the personal laws  can be fixed, while keeping the identity and practices of a community alive.

Either of these suggestions, to be implemented, need not only political will but tact and sensitivity. We can stick with outdated practices, or shove our conception of modernity down unwilling throats, but none of these will be a real victory for our polity.

I would love to hear from you, dear reader, what you think we need to do..

Some revolutionary features of the Mental Healthcare Bill 2013 (For Lawyers and Non-lawyers)

The Mental Healthcare Bill of 2013 was introduced before the Rajya Sabha ( the Upper House in India), with a view to provide mental healthcare services to persons with mental illness, while also protecting their rights.

In our country mental illness is still stigmatized. People often do not get access to good quality treatment, and end up going to quacks and “Godmen”. Cases of chaining, physical abuse and sexual abuse have been reported from mental health institutions. The ‘pagalkhana’  (madhouse) as it was traditionally called, looms large in the imagination as a terrible and forbidding place.  However, a change is in the air. Or at least the desire for a change.

The Mental  Healthcare Bill, which if enacted will replace the previous Mental Health Act of 1987, has several revolutionary features regarding the rights of mentally ill persons, including well-defined rights, the definition of capacity, modes of treatment, and the decriminalization of suicide. I will keep this article simple enough for non-lawyers to understand the features of this bill. Some features have drawn severe criticisms and some have been hailed as much needed changes in the law. The features (in no particular order) are:

1) The decriminalization of suicide. 

This Bill clearly lays down (S 124) that any person who attempts to commit suicide shall be presumed to be mentally ill (unless proved otherwise) and will not be punishable under the Indian Penal Code.

This was a much-needed change in a very outdated law, and has been generally hailed to be a welcome feature.

2) Electro-convulsive therapy prohibited without muscle relaxants and anesthesia being used.

While electro-convulsive therapy without administering muscle relaxants/anesthesia does seem barbaric, this provision has been criticized for making the treatment more ‘expensive’ and inaccessible to certain sections of society. Of course medical professionals will be better suited to talk about the validity of this criticism.

3) A rights frame-work for mentally ill persons.

This Bill gives certain rights to mentally ill patients. These are:

a) The right to access mental health care services run by the appropriate Government. These services are defined as being of affordable cost, good quality, available in sufficient quantity, accessible geographically and available without any discrimination. While creating a rights framework is a great thing, one wonders how in a country where access to healthcare is such an elusive concept, can such a right be crystallized.

b) A right to live in society and not be segregated

c) A right to live with dignity and a right against cruel and degrading treatment.

d) A right to be treated at par with persons with physical illnesses.

e) A right to meet or refuse to have visitors

The right to be treated at par with persons with physical illnesses is perhaps the most ambitious feature of this charter of rights, since even the drafters of the Bill had difficulty in making this a reality. The Bill has a section allowing for involuntary admissions to mental health establishments in certain cases, something that mental health groups have described as being in clear violation of principle of equality between the mentally and physically ill. However, drafters of bill have to look at the bigger picture, and involuntary admissions are regrettably a necessity in certain cases.

4) The concept of capacity

The Bill defines capacity by stating that a person will be deemed to have the capacity to make decisions regarding his treatment  if he can:

a)      understand relevant information

b)      retain the said information

c)       use or weigh that information to make the decision

d)      can communicate that decision through talking, sign language or any other means.

The key thing here, aside from that very definitive understanding of capacity, is the fact that communication need not just be through talking, or sign language. This takes into account the needs of those who can neither speak nor use sign language and need to use special techniques/ technology to communicate.

The bill goes further to say that if a person makes a decision about his mental health-care or treatment which is perceived by others as inappropriate or wrong, that by itself shall not mean that the person does not have the capacity to make the mental health care decision.

This recognizes the concept of patient autonomy, and moves away from the culture of paternalism by recognizing that as long as the patient has capacity he has the right to make ‘wrong’ decisions too.

 

5)  Advance directive.

Patients can, according to this Bill make an advance directive regarding whether they want to receive treatment for mental illness and the manner in which they want to be treated, who their nominated representative is etc. This is to ensure that their wishes are recorded and enforceable at a subsequent period when they lack the capacity to take mental health decisions.

However, any subsequent decision made when the patient has a capacity to make such decision, over-rides an advance directive, thereby leaving room for the mentally ill person to change their mind.

6) Non- segregation

At various points the Bill reiterates the right of mentally ill persons to not be segregated from society.  It also focuses on rehabilitation, by stating that persons with mental illnesses shall not be kept in establishments merely because their families do not wish to accept them. To this end the Government is directed to set up places such as half-way homes, group homes etc, for persons who do not require treatment in restrictive establishments.

7) Limiting physical restraint

While the Bill absolutely prohibits chaining, physical restraint and seclusion are limited to cases where it is necessary to prevent immediate harm, or on the authorization of a psychiatrist, who has to make the cause for physical restraint a part of his medical notes.

The Bill has several procedural aspects too, but that is outside the scope of this post.

Some of the changes suggested by the Bill such as decriminalising attempted suicide, may not seem revolutionary prima facie. But to change a draconian law that has built up considerable inertia is a revolutionary step, in my opinion.

Incorporating elements of patient autonomy, affirming the right to non-segregation,  seem noble and desirable, but are likely to engender a backlash given that a proper understanding of patient autonomy is still in nascent stages in India.

There have also been criticisms that the Bill’s definition of mental illness is too broad for a society where mental illness is still stigmatized. There have also been misgivings about whether the rights frame-work created by this Bill will be well implemented.

I am inclined to think that sometimes a law is required to jolt a society out of its slumber and apathy. If the Bill is enacted it will do some amount of good with its more   easily realizable goals. But the true power of the Act will be that it will make the country, medical community, and civil society wake up to the needs of its mentally ill citizens.

 

 

6 changes we need in Indian Rape Law. RIGHT NOW.

Yes, I know the laws relating to rape in the country have undergone a big change thanks to the Criminal Law Amendment Act of 2013, which was a result of the deliberations of the Justice Verma Committee. Yes I know that rape has become an increasingly important site of debates of public policy, law and women’s rights subsequent to the incident of 16th December 2012.

Despite the changes in the law, however, there are a few significant lacunae in the law that I would like to address. Have tried to keep it simple so that non-lawyers can also understand the legal provisions I am talking about.

1) Remove RAPE from the protection enjoyed by Armed Forces under AFSPA.

What am I talking about? Well the Armed Forces Special Powers Act is a 1958 legislation, described as draconian by its detractors and necessary for the protection of the morale of the Armed Forces by its supporters. I do not wish to debate the Act here. However, this Act, under Section 6, gives  protections to persons Acting under this Act from a prosecution, suit or any legal proceeding, without the previous sanction of the Government.

Interestingly no sanction for prosecution has been intimated by Ministry of Home Affairs and Ministry of Defence to the state government from 1990-2011 under the (Jammu and Kashmir) Armed Forces Special Powers Act, according to the response of the Department to an RTI Application. (Indian Express, Wed Feb 29 2012).

Now this means that in cases of rape, the Armed forces, in effect, enjoy immunity from legal proceedings. Though during hearings the Supreme Court has criticized this invocation of AFSPA in rape cases, the law of the land remains that immunity from any legal action is enjoyed by persons acting under AFSPA.

The position of law has not been changed, despite suggestions from the Justice Verma Committee that military men accused of sexual assault should be tried under normal law.

So the question that all reasonable people need to ask themselves is this:

Can rape be something necessary to commit in the line of duty? Does ‘protecting the nation’ require that dissenters be raped?

2) Make the victim gender neutral

It is time we recognized the principle that YES, men can be raped.

Someday, when power equations in society have changed, and when the socio-political dynamics of rape is different, perhaps we can hope for a completely gender neutral law on sexual assault.

Right now, we need to recognize that men can be, and sometimes are victims of violent sexual assault. Children are protected under the Protection of Children from Sexual Offences Act, 2012. But adult men who face penetrative sexual assault have no recourse but to go under S 377 of the Indian Penal Code. Incidentally this is the same section under which (in theory) consenting adult same sex partners can be booked.

I will leave it to the reader to decide whether this is repugnant to their ideas of justice and decency or not.

3) Recognize Marital Rape

This is for my friends from Mars.

Rapes happen within marriages.

They are violent, and as traumatic as rapes outside marriages.

They need to be recognized.

I remember a long time back when I articulated this idea at a National Level Competition, I really offended a very senior lawyer who started telling me about the obligation that marriage entails. I sincerely hope he was being the Devil’s Advocate, for he went on to say that marriage began as the idea that the man would give bread and protection to the woman in exchange for sex and this was an argument against recognizing marital rape.

So let me say two things:

1) A woman does not ‘give’ sex, she is an equal participant in the act. Just as a man is not always expected to be the sole breadwinner any more. At least in the kind of marriages a society aspires to now.

2) No expectation from a marriage (legitimate or not) justifies violence in a relationship.

I understand that marital rape might be difficult to prove, and I understand that a section of the society with its foot in the past feels incredibly paranoid at the prospect of recognizing it, but given the quality of legal minds in our nation, I don’t see why we can’t at least begin the ground work on bringing this into our statute-books.

4) No death for repeat offenders.

Given the abhorrent  rape that took place in Delhi on 16th of December 2012, the ‘hang the rapist’ mentality got strength.

I understand the pain and the anguish people felt after that fateful night, particularly as horrific details of the incident came to light.

However, our law makers have to be dispassionate. And I do not think they were being dispassionate while drafting Section 376 E of the I.P.C which provides that repeat offenders may be punished with death.

Very practically speaking if the (repeat) rapist knows that the punishment of his crime will be death (ie the same as for murder), he will just murder the very often only witness to the crime, his victim.

Surely that is not the consequence we want?

But aside from the practical consequence, this is ideologically problematic too. So far the only crime punishable with death has been murder (and sedition perhaps). Somewhere this section echoes the idea that rape (or a certain amount of rapes) amount to murder.

Am sorry. They just don’t. A woman is very much alive and our laws should not try to impose on her the idea that the shame/agony of rape equals death. This is not fixing the problem, but amounts to reimposing partiarchy.

5) Include some age proximity clauses in cases of statutory rape.

As much as we would like to deny it, some teenagers have sex. Now since the age of consent is 18 in India (keeping up with Child Right’s Convention norms no doubt), there is a very real situation where consenting sexual activity between a 19 year old man(?) and a 17 year old girl is statutory rape.

Now one way to work around this would have been discretionary sentencing which has been taken away by the new amendment.

Cases of statutory rape with the participants being close to each other in age, and having consented can certainly not merit 7 years of imprisonment.

Hence, something has to be done to fix this anomaly.

6) Chuck  the part of S 377 IPC pertaining to consenting adults.

Yes yes, you may ask me whether this falls squarely under changes needed in our rape laws, and I will tell you that yes it does.

We can not really see violent sexual activity in perspective if we penalize non-heteronormative sex between consenting adults with similarly harsh punishment.

Also, my blog my rules.

Well so here it is, my list of six problematic provisions in our rape laws that are problematic.

Some of you will think that I have not gone far enough, by not questioning ASFPA at all or demanding complete gender neutrality in the law. My answer is I have tried to keep things realistic.

Some of you will think that I have struck at the root of the family or that its terrible that I do not wish that all rapists are hanged. To you I say sentimentality can not be the basis for making laws.

At any rate I welcome your discussions and criticism.

Just don’t call me a feminazi. The death ray is not ready yet.