Judges, judgments and women's rights

The Hindu, Sunday Magazine, October 31, 2010

THE OTHER HALF

KALPANA SHARMA

When it comes to women's issues and the law, the courts continue to send contradictory signals…

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As much as police officers, doctors also need to be taught a rape survivor's rights.

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Photo: Vipin Chandran 

Speaking out in anguish:Indira Jaisingh.

Two courts. Two judgments. Two attitudes. In the contrast lies the story of what Indian women continue to face when they turn to the law.

On October 21, the Supreme Court, in the context of a case before it, held that a woman in a “live-in relationship” could not claim maintenance in the event of abandonment by the man as such a relationship could not pass as a “relationship in the nature of marriage” as described under the law for arrangements outside formal marriage. The Court held that if the woman was a “keep” of the man, who looked after her financially but “uses mainly for sexual purpose and/or as a servant”, then such a woman was exempted from claiming any benefits of maintenance under the Protection of Women Against Domestic Violence Act 2005 on grounds of abandonment.

The ruling led to a justifiable outburst by India's first woman Additional Solicitor General Indira Jaisingh, who also happens to be one of the main movers of the Domestic Violence Act. Ms. Jaisingh ticked off the judges for using a term like “keep” which she held was derogatory to women and was “male chauvinistic”.

Wrong precedent?

Ms. Jaisingh's statements in court made it to the front pages of most newspapers. But one wonders how many will pause and think about why she felt she had to raise her voice at the use of such a term in the judgment. It was, as she herself emphasised, because the ruling of the Supreme Court sets a tone and a precedent for future judgments that affect women. One of its judgments in what is called the Vishakha case is even today used as the standard for judging all matters relating to sexual harassment in the absence of a specific law. By using a term like “keep”, you disregard and virtually excuse the responsibility of the man in an arrangement in which two people are involved and where one, the woman, is most likely the more vulnerable. Once this becomes the precedent, any man can go to court and challenge the right of a woman with whom he has a relationship outside marriage, and who demands compensation when abandoned, by claiming that she was merely his “keep”. Therefore, Ms. Jaisingh's intervention needs to be appreciated, as also her courage for speaking out in the highest court of the land where some others might have felt intimidated.

Apart from the Vishakha judgment, the Supreme Court has also passed several orders that make it clear that in a rape case, the woman's character will not be part of the proceedings during the trial and that it is immaterial to the case. This is also an important precedent in the context of women's rights. Yet, as is evident from another judgment, in another court in Delhi, the practice continues.

Pronouncing judgment in a rape case on October 23, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called the “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise her in court.

When a woman reports rape, she has to go to the police who then send her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to sexual intercourse” by inserting two fingers inside her vagina. Why is this of any relevance to a case where the facts of rape and sexual assault are being determined? Does this mean married women cannot be raped? Does it mean an unmarried woman who has had sex cannot be raped? What does this absurd test actually establish when the woman's character, or sexual habits, are of no consequence in the matter before the court?

It is heartening to read of at least one judge who was incensed enough to speak out against this test. Judge Lau said, “The test is violative of the fundamental right to privacy of the victim.” She went on to say, “State action cannot be a threat to the constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of sexual offences (even minors) by doctors.”

The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to be taught a survivor's rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled, “Dignity on Trial: India's Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”, the “finger test” remains standard practice in many parts of India including Mumbai and Delhi. In fact, in Mumbai, three leading government hospitals, where hundreds of rape survivors are examined each year, still use this test.

The HRW report also reveals that outdated medical textbooks recommending this test are still being used. As a result, each succeeding generation of doctors continue to follow the practice without thinking twice about its relevance or the trauma they are causing the rape survivor.

Intimidating practice

Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor's testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to the police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor.

Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unless something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are sexually assaulted will continue to hesitate before turning to the law.

 
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Conflicting interests: After FIFA and the Commonwealth Games

The questions being asked in South Africa after the FIFA World Cup are similar to those raised in India before, during and after the Commonwealth Games. Who really benefits from these mega events? The people or only the contractors? Transparency International states that public works and construction are the most corrupt sector in the world, says Kalpana Sharma

 

The Commonwealth Games are over but what have they left behind?  Controversies.  Scandals of corruption.  Stories about shoddy workmanship.  “World class” sports facilities.  A Games Village, that went from dirty and unlivable to tolerable in one week, for sale.  The list is long and by now familiar.

But the relevant question to ask is in terms of what such an extravaganza does for the city or cities in which it is located.  Does it really upgrade the infrastructure so that all residents benefit?  Or does it create white elephants at the expense of the exchequer that will take decades to recover the initial investment apart from on-going maintenance costs that will further drain resources?

These are some of the questions that South Africans are asking.  They raised them before the successful FIFA World Cup 2010 matches were held there in June/July this year.  And they are still asking them after the fun and frenzy of the World Cup has subsided and life has returned to normal.

Take Johannesburg, for instance.  Soccer City, the striking looking football stadium was constructed in the heart of Soweto, the township of urban poor known best for its rebellion and uprising at the height of the apartheid regime in 1976.  On June 16 that year, hundreds of school children had dared the police and came out on the road and protested against the imposition of Afrikaans as the medium of instruction.  Amongst those shot dead by the South African police was 12-year-old Hector Pieterson, in whose memory a museum has now been erected.

Soccer is the game of townships like Soweto.  The people there are passionate about it.  Much as kids play cricket in this country on any open space they can find, in South Africa, and townships like Soweto, soccer is played.  Yet, even though Soccer City is visible from most parts of Soweto, an ordinary soccer fan from that township would not have been able to watch a live match there.  Why?  Because you could only buy tickets on the Internet with a credit card.  Poor people have neither.

That was only one of the problems.  Although most South Africans are proud that the one month of matches passed seamlessly without any incidents and everyone who visited South Africa had nothing but praise for the facilities, the urban poor cannot help but wonder if the funds could have been better used.

For apart from being denied the chance to watch matches, the areas around stadia like Soccer City were sanitized so that no informal vendor could sell goods anywhere in the vicinity.  With its high levels of unemployment, one of the only forms of livelihood available to poor people in South Africa is selling goods on the street.  You see vendors everywhere you go, often sitting on a box with a tray full of a variety of goods.  This is no different from the options facing the urban poor in this country.  Yet, street vendors were barred from selling anywhere near the stadia and oddly, the ban continues and will stay until December.

A stone’s throw away from Soccer City is one of the many tin shack settlements where the poor live. Fifteen years back, the entire area looked like that.  These are slums not very different from many of our in cities like Mumbai.  Although South Africa has made a herculean effort to deal with housing for the urban poor, something that this country can certainly learn from, there is still a great deal to be done.  And the contrasts are only too visible.

One of the plus points of the investment surrounding the FIFA World Cup was the investment in public transport, something that has a direct benefit for the poorest.  The total amount spent on enhancing transport systems in the different cities where stadia were built or refurbished exceeded what was spent on the sporting facilities. You can see evidence of this in the new Bus Rapid Transport System (BRTS) introduced in Johannesburg, a city that has no bus system.  The only way poor people can travel is by “taxi”, a privately-owned mini-bus with around 12 seats that runs on the main roads and picks up passengers at crossroads.  Because of the World Cup, this system has also been streamlined with large terminals where people can go and pick up a taxi ride to their destination.  As a result, even if poor people still live outside city limits, a legacy of the apartheid era where under the Group Areas Act people from the different races could not live in the same locality, they can commute more easily to their jobs in the city than they could in the past.  But it is still not easy and if there is anger at the slow pace of change, it is not entirely surprising.

But the questions being asked in South Africa several months after the FIFA World Cup are similar to those raised in this country before, during and now after the Commonwealth Games.  Who really benefits from these mega events?  Do people benefit or only the contractors?

The answers to those questions are also strikingly similar in India and South Africa.  A fascinating monograph, brought out in the run-up to the FIFA World Cup, exposes the extent of corruption, crony capitalism and nepotism that was an integral part of the construction frenzy that preceded that event.  “Player and Referee: Conflicting interests and the 2010 FIFA World Cup”, edited by Collette Schulz Hersenberg[i], points out that according to Transparency International (TI), the extent to which corruption is concealed is directly related to the size of projects.  In TI’s “Bribe Payers Index 2002”, public works and the construction sector were identified as the most corrupt in the world.  It estimated that the amount lost worldwide due to corruption just in infrastructure procurement was in the region of US$3,200 billion a year.

Several other interesting points emerge from this monograph.  One, that the corruption disease is not restricted to poorer countries or emerging economies like South Africa or India.  Even the 2006 FIFA World Cup held in Germany threw up a corruption scandal involving the president of one of the hosting clubs.  The very size of the event and the temptation to exploit the contract system to benefit friends and family, are tendencies that are universal, it would appear.

The second point that would have a resonance to the situation in India is how one maintains and covers the on-going costs of expensive stadia.  According to the editor of the monograph, some of the stadia built for the 2002 FIFA World Cup in Japan and South Korea could not be maintained and ultimately had to be demolished.  In South Africa, similar questions are already being asked about Soccer City in Gauteng and Green Point in Cape Town. 

And third, whether these mega events actually yield economic benefits to the host country as is projected before the event.  The story from South Africa is that FIFA made more than the government of South Africa.  In India, we will have to see whether the contractors from outside India made profits far in excess of anything India gained from hosting the Commonwealth Games.  Certainly in South Africa, local people did not benefit.  For instance, despite South Africa producing many different brands of beer, the FIFA contractual terms restricted the sale of beer to only one brand, and that too an imported one. 

The bottom line in any city, particularly in cities in South Africa or India, is how one sets priorities for development.  If mega events such as these do not boost the local economy, only marginally contribute to urban development by way of additional transport infrastructure, and divert funds from the more pressing issues, such as housing for the poor, are they worth it?  Whose image do they boost, especially if corruption in every deal seems to be the inescapable hallmark of all such events?

The scorecard on Delhi after the Commonwealth Games has yet to be prepared.  It is fairly apparent already, that no one is going to win any gold medals in the Organising Committee and perhaps even in the Delhi government.  And citizens of the national capital – all citizens and not just those who could afford to buy tickets to the events – will have to decide whether in the end their lives have been made easier, have remained the same, or become even more stressful after this showpiece mega event. 

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[i] Monograph 169, Published by Institute of Security Studies, Pretoria, South Africa

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NDTV gets it right

The Hoot

Second Take

NDTV did a brave thing on October 14.  On a day when Karnataka Chief Minister was exulting over having won the vote of confidence in the Assembly and the Commonwealth Games were winding up, at prime time the channel telecast an environmental story.  It was not just another environmental story.  It was one that hardly anyone had reported.

On August 15, Nand Aparajita, a 78-metre long cargo ship belonging to Essar Shipping floundered off the coast of Kavaratti island in the Lakshadweep and was grounded.  Since then it has been sitting there, buffeted by strong waves even as efforts to salvage it flounder because of the weather.  The ship was carrying 35,000 tonnes of cement that has now been off loaded.  Fortunately, it had very little oil by the time it ran ashore and that has also been removed. 

Any shipwreck is a disaster but an accident off Lakshadweep is especially tragic even though no one was killed. This is because the Lakshadweep is one of the most fragile ecosystems and is one of the global biodiversity hotspots. These islands consist of 12 atolls, 3 reefs and 5 submerged banks apart from 36 islands with an area of just 32 sq km.  Only 10 islands are inhabited and Kavaratti is the administrative centre.  The coral reefs of Lakshadweep are some of the best preserved in the world displaying an awe-inspiring array of biodiversity and are the only living coral reefs in India.

Significantly, a few days before this accident, the MSC Chitra collided with MV Khalijia near Mumbai.  The former was carrying oil and pesticide and as a result an estimated 800 tons of oil spilt into the sea.  Marine life was affected, as were mangroves.  The media gave it detailed coverage including efforts to clean up the oil.  The story has now disappeared from the radar but the effects of that oil spill will still be playing out.  Thus, the story is far from over.

The Lakshadweep accident is also an on-going story.  There is the environmental cost of the damaged coral that has yet to be estimated.  There are the long-term costs of further damage if the ship is not salvaged soon.  And there are linked stories about pollution, construction, tourism, global warming and other factors that are already stressing coral reefs around these islands.  In other words, an accident that the shipping company dismisses as minor because it has not resulted in a major oil spill could actually open the way for a larger environmental crisis. The coral reefs are the only protection for the islands from erosion. If they are damaged, life on the islands would be severely affected. 

Coverage of many events is still determined by physical proximity even though today media houses have far better resources to be able to send their journalists out to follow up on stories even in remoter locations.  The pity is that the Indian media continues to function within a very narrow geographical area – usually around the national capital, state capitals and a few other important cities.  The rest of the country only appears on the radar when a disaster of what they consider major proportions takes place.  Then too it is covered and forgotten.

Therefore, full credit must go to NDTV for following up on this story that could otherwise be easily forgotten.  For every one story like this, there are dozens waiting to be reported.

We are so cavalier in our approach to nature in this country.  The media will take up the bigger campaigns, the tiger, elephant corridors etc.  But the environment is damaged daily by such occurrences, ships that get wrecked off our shores and are allowed to remain there until they break apart.  For instance, in Goa, the MV River Princess, a 240 metres long cargo ship belonging to the Salgaocar Shipping Company, ran aground near Fort Aguada in June 2000.  Yet 10 years later, the ship continues to be in the water and nothing is being done.  Meanwhile, it has altered the tidal pattern and damaged the popular beach of Sinquerim-Candolim.

An interesting aspect of the Lakshadweep story is the effort by the administration to keep media away.  Why?  NDTV quoted from a letter written by the Indian Broadcasters’ Association to the islands’ administration which stated: “The capricious denial of entry to journalists directly and immediately impedes their right to carry on their profession and violates the free speech guarantee contained in the Constitution.  Above all, such action on the part of your administration deprives the people at large of their ‘right to know’ about the goings on in their own country by receiving news from all over.”  As a result of such an intervention, the ban was removed.  Yet not many journalists have rushed to cover the story.

Apart from the on-going environmental angle, this reason behind the media ban needs to be investigated. Who prompted the island administration to ban the media?  What was it afraid of?  Are there other developmental activities taking place in the Lakshadweep that are also impacting the environment?

NDTV should follow up all these aspects after this important exclusive.

(To read the original, click on the link above and if you want to see what is meant by "living coral" click here)

In a class of our own

The Hindu, Sunday Magazine, October 3, 2010

THE OTHER HALF

KALPANA SHARMA

The Commonwealth Games fiasco, more than anything else, has exposed the hypocrisy of our attitudes…

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If toilets for the athletes were filthy, think of the 665 million Indians who do not have a toilet.

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Photo: Kamal Narang 

Reality check:The collapsed foot-over bridge near the Jawaharlal Nehru Stadium.

The Commonwealth Games have begun — and the common man or woman must wonder what all the fuss is about. Why has the media, those consuming the media, politicians, athletes, sports officials from around the Commonwealth, and even the Prime Minister and the Cabinet, been so hugely engaged in a 10-day event in one city in India? How does what happens over these 10 days make such a difference to the lives of India's 1.2 billion?

Yes, there has been huge corruption, the details of which will emerge once the games end. But is that new or all that surprising? Yes, the work is shoddy and the finish sub-standard. Yes, the toilets were filthy, liberally decorated with paan spit and stray dogs had a grand time. Is that so unusual? How and when did we delude ourselves into believing that things are now done differently in India? Merely because of the Delhi Metro or a handful of airports? Incidentally, systems even at these posh airports have broken down. Visit the toilets in the sparkling Mumbai domestic airport at night and you will see what is evident in the majority of public toilets around India.

Wrong lessons

We are drawing the wrong lessons from Commonwealth Games mess. We are told India's “image” has been damaged. That we should hang our heads in shame now. Why? Because we did not match up to the expectation of being “world class”, whatever that means? That we did not manage to put across to the world that India has changed, that it is now an efficient, non-corrupt, functioning democracy?

In my view, the Commonwealth Games fiasco is a much-needed reality check for us. It has not only exposed that we are a long way from being “world class”, but it has also reminded us that we remain a corrupt society and that our standards of efficiency, leave alone cleanliness — whatever Lalit Bhanot might think — are unacceptable.

If toilets for the athletes were filthy, think of the 665 million Indians who do not have a toilet. If the buildings where the athletes are housed are sub-standard, think of the millions who are without a roof over their heads. If some of the homeless get houses, courtesy the government, or some private builder availing a scheme, they usually leak, are lower than sub-standard and look like ancient relics within a few years of completion. Drive around Mumbai and you will see “new” buildings, constructed for the poor that already look decades old.

But more than the sub-standard structures that have apparently brought such disgrace to India, we should be worried about sub-standard attitudes. Why is no one really concerned about the workers injured when a foot overbridge collapses? Why do we know nothing about the workers who built these “world class” facilities, where did they come from, and what happens to them now that the work has ended? If some of them are guilty of having messed up the toilets, do we know whether they had access to sanitation, or even clean drinking water, where they lived for months, perhaps years, as they slaved over these “world class” facilities?

And then there is corruption. Blatant. In your face. Yet, we cannot forget that the real price for the deep-rooted corruption in this country is being borne by the poorest, those without the ability to pay their way.

In the welter of the scandals emerging every day from the Games, an important report on the real picture of India's maternal mortality rate was lost in the fine print. “No Tally for the Anguish” is based on a study by Human Rights Watch on the conditions women face in Uttar Pradesh when they seek help during and after pregnancy. The stories are chilling. They speak of women dying as they are pushed around from one facility to another, of husbands begging doctors and nurses to treat their dying wives, of petty corruption at every level that exacerbates an already scandalously high death rate amongst Indian women.

Other realities

One such story, which I quote below, will suffice as an illustration:

“One man I know had taken his wife for delivery to the CHC. He had sold 10 kilos of wheat that he had bought to get money to bring his wife for delivery. He had some 200-300 rupees [US$4-6]. Now in the CHC they asked him for a minimum of 500 rupees [US$10]. Another 50 [rupees] to cut the cord and 50 [rupees] for the sweeper. So he started begging and saying he did not have more money and that they should help for his wife's delivery. I... asked them why they were demanding money. The nurse started giving us such dirty [verbal] abuses that even I was getting embarrassed and wanted to leave. You imagine how an ordinary person must feel who wants help. –Activist from a local non-governmental organisation in Uttar Pradesh, March 2, 2009.”

And finally, the differing standards of hygiene that Lalit Bhanot so famously spoke of when those inspecting the site mentioned how appalled they were to see a member of the staff urinating in the public area. Well, here is a reality that even the most skilled managers of an event in India will not be able to hide. And although a part of the problem does arise from the lack of toilets — not all of it does as far as Indian men are concerned. For some reason, regardless of facilities available, the nearest wall is the favoured spot for urinating.

A recent study on women and sanitation in the slums in Mumbai by the activist group Jan Jagruti revealed that while men can use pay public toilets free of cost if they want to urinate, women must pay one rupee each time they use it. Yet, you see only men urinating in public and not women.

Long way to go

I know these are not pleasant subjects to write about when we are trying to project an image of ourselves as “world class”. But every time I hear that phrase, I shudder at our rank hypocrisy. How can a country where children die within days of being born, mothers die while giving birth to babies, millions die from communicable diseases, malaria and dengue are even today wreaking havoc in many parts of the country, still continue to harp on growth rate and some illusory standard of “world class”?

I hope some of our athletes, who in non-Games times are not given anything resembling the facilities available in Delhi now, do well in these games. And I hope that when the Games end, heads do roll and the men who have made this mess are held accountable.

But more than anything, I hope the Commonwealth Games drama will make many of us who live in comfortable homes in India's cities spare a thought to those who build our homes, those who clean them, those who have no homes, no toilets, no access to healthcare, no food and little work. That is the real India. And I don't know what “class” it is but it is a far cry from the concept of “world class” that we have been bombarded with for the last many months.

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