August 17, 2018

On Partition and Remembrance

So many of us have grown up hearing of crimson harvests resulting from the forced poppy cultivation which destroyed both China and vast tracts of India, and of the millions who died, often begging for rice starch, in the Bengal Famine. This is, of course, the famine which prompted Leo Amery, once Secretary of State for India and Burma, to compare Churchill to Hitler given that it was, in no small measure, the result of British policies that were implemented in India while he was Prime Minister. Bhaator maar, the Assamese called starch water. Kani khai bohi ase: he's sitting around having eaten opium.

The abiding image of the famine, to so many, is one of children dying under the watchful, waiting eye of vultures. That image didn't fade by the time of Partition. In her autobiography, Margaret Bourke White, the American photojournalist, wrote:

"For years, Hindus and Muslims had struggled side by side for independence from the British Raj. With freedom finally on the horizon, Jinnah masterminded the game so adroitly that within months he was to win his Pakistan. Jinnah announced what he called Direct Action Day: a We will have," he insisted, "either a divided India or a destroyed India."
On the heels of this announcement, violence broke out in Calcutta. I flew there from Bombay and found a scene that looked like Buchenwald. The streets were literally strewn with dead bodies, an officially estimated six thousand, but I myself saw many more. Scattered between bodies of men were the bodies of their animals. Countless cows, swollen with the heat, were as dead as their masters. In Calcutta, a city larger than Detroit, vast areas were dark with ruins and black with the wings of vultures that hovered impartially over the Hindu and Muslim dead. Like Germany's concentration camps, this was the ultimate result of racial and religious prejudice.
I did my job of recording the horror and brought the pictures out for Life, but the task was hard to bear. The terror in Calcutta set off a chain reaction which spread through the country and was equally devastating to both religious groups. Months of violence sharpened the division, highlighted Jinnah's arguments. On August 15, 1947, one year after the riots in Calcutta, a bleeding Pakistan was carved out of the body of a bleeding India."

The friction between Hindus and Muslims had been nurtured by the British through the divide-and-rule policy which they instituted for their own benefit. Unsurprisingly, it contributed to the August 1947 Partition which saw the country literally being divided along lines drawn on a map by an English lawyer, Cyril Radcliffe, who had stepped on to Indian shores a month earlier and appeared to know nothing worth mentioning about the country.

The comparisons between concentration camps and Indian traumas are well worn. Unlike Germany though, we do not deal in remembrance half a much as we should. We have no Erinnerungskultur, a Culture of Remembrance, to our own disadvantage. Those who do not remember the past are always at risk of allowing it to be repeated, after all.

The Partition of India still affects our national and nationalist ethos. It marks those whom we now consider foreigners. Forgetting the trauma of Partition also allows us to forget that we were once one people. It allows us to dehumanise those whom we now consider outsiders. It allows us to create constructs which facilitate separation.

We now live in a world where some spend their time looking for the least offensive ways to describe children in cages. Where almost every migration ‘crisis’ is invariably caused by an uninviting government supported by a xenophobic people. Ecuador, for the time being, seems to be an exception to the rule: it recently declared an emergency due to mass migration from Venezuela. Its crisis, however, wasn't declared to keep migrants out but to help them as they come in.

Inhumane xenophobia doesn't have to be anyone's default state of being. There are other options which we could follow especially given that our own history, in living memory, tells us that xenophobia and communalism can be catastrophic for everyone in their vicinity. The Partition is proof of that.

August 15, 2018

Where the Mind is Without Fear

On Independence Day, thinking of my mother's father who had been jailed during the Independence struggle and later became a civil servant. He died before I was born though he seems to have enjoyed poetry, and the first poem my mum ever paraphrased with me was one which her father had worked on with her: Where the Mind is Without Fear, by the Bengali Nobel laureate Rabindranath Tagore, still as relevant today as ever it was.
Where the mind is without fear and the head is held high;
Where knowledge is free;
Where the world has not been broken up into fragments;
By narrow domestic walls;
Where words come out from the depth of truth;
Where tireless striving stretches its arms towards perfection;
Where the clear stream of reason has not lost its way;
Into the dreary desert sand of dead habit;
Where the mind is led forward by thee;
Into ever-widening thought and action;
Into that heaven of freedom, My Father, let my country awake.
Tagore, of course, had returned his knighthood after the massacre at Jallianwala Bagh. He died just as the British were beginning to implement policies in the Bengal that would, by the end of WWII, contribute to the deaths of millions of Indians even as, in Europe, they did what in later decades they would come to ceaselessly advertise as a demonstration of their commitment to human rights and  justice which, it has to be said, many Indians saw no evidence of either then or earlier.

“In the case O’Dwyer vs Nair 1924 before the King’s Bench Division in London, the jury decided by a majority of 11 to 1 that General Dyer had not committed an atrocity at Amritsar’s Jallianwala Bagh, and Sankaran Nair, the defendant, was accordingly held guilty of libel,” Nandini Nair wrote in a profile of the man who had resigned from the Viceroy’s Executive Council after the Jallianwala Bagh massacre. “The sole dissenting juryman was none other than Harold Laski, the well-known political economist. Since the verdict of the jury was not unanimous, it was open to Nair not to accept it and seek a fresh trial. He chose not to do so, saying, “Who knows what another 12 English shopkeepers would think.” O’Dwyer offered to forgo the damages of £7,000 if Nair tendered an apology. He refused point-blank, even though it was a large sum.”

The Quit India movement began Around the time of Tagore’s death too; Naresh Fernandes describes how it was named in his book on Bombay: “In August 1942, as the Japanese seemed poised to invade India, Gandhi arrived in Bombay to address a meeting of the All India Congress Committee in Gowalia Maidan. The day before, he and his colleagues held a meeting to decide on an appropriate slogan to express their opposition to British rule. ‘Get out’, one suggested. Gandhi thought that too impolite. Another suggested ‘Retreat’ or ‘Withdraw’ but those didn’t find approval either. Finally, Yusuf Meherally turned to Gandhi with a bow and said, ‘Quit India’. Said Gandhi, ‘Amen’.”

July 20, 2018

Anti-trafficking Initiatives and Resurrecting Indentured Labour


(Note: This post is primarily about the intersect between the raid/rescue model & NRPFesque policies in the context of DV and the shape which laws governing the field could be made to assume in the future.)

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Indian trafficking law is a complex mix of constitutional law guaranteeing the impermissibility of the practice of human trafficking, criminal law, and labour law. It is consolidated nowhere but finds mention piecemeal across a number of statutes.

Criminal laws in the field have tended to try to protect trafficked persons (questionably, sometimes from themselves by refusing to acknowledge their ability to consent to acts in relation to themselves) while labour laws have generally tended to attempt to realise the hope of being able to engineer a more equitable society through the instrumentality of the law (with varying degrees of success, to put it mildly).

In consequence, Indian law has not thus far single-mindedly pursued a strategy of removal and rescue. That strategy is largely the brainchild of Western neo-abolitionism developed in consonance with philanthro-capitalism, and it can easily manifest as indentured labour redux with state complicity.

In its earlier avatar, the horrors of supposedly-legal indentured labour practised by colonial powers were experienced by colonised peoples particularly after the nominal abolition of slavery. In contemporary times, the model in vogue doesn't promote forced, unremunerated labour quite as blatantly. Instead, trafficked persons may be removed from the environs they find themselves in, ostensibly in support of their human rights, following raids possibly conducted by law enforcement. However, despite such removal, the country in which trafficked persons are rescued may not force traffickers to pay them adequate reparations or afford them adequate rehabilitation opportunities itself.  

Even if traffickers are jailed, at the micro level, retribution devoid of reparation does not immediately help trafficked persons to rebuild their world. And, at a macro level, non-payment means that, if the trafficked persons have crossed international borders and are subsequently deported (of course, at state behest), the money which they should have been paid likely remains in the country in which those who trafficked them have benefited from their unpaid labour, the country in which they were ostensibly rescued. Due to this, the “fight against modern slavery” could this easily resurrect one of the least appealing facets of what was once the coalition of colonialism and capitalism: forced, virtually unremunerated labour extracted from the world's least privileged people.

The problems which the raid and "rescue" model can potentially cause become exceptionally clear if persons are trafficked across international borders by those with whom they share a domestic relationship. This is simply because, should such trafficked persons report abuse and not have the necessary paperwork to remain where they are being abused without their traffickers’ aid, far from receiving support, they could well find themselves being deported perhaps to another abusive situation. And, so, the model could well disincentivise abused persons from reporting abuse and force them to endure in horrific conditions. In effect, the model has the potential to result in states setting up Rape and Assault Facilitation Services in the name of anti-trafficking operations or in lieu of immigration and border forces whether or not that is their intention.

Even where domestic violence isn't part of the equation, a person forced to work in a factory, for example, may be far better served by strong labour laws and, if required, sympathetic immigration laws which ensure humane conditions and fair pay for work should they want to continue working instead of being “rescued” and bring deprived of a job and, possibly, what little safety they have in the process. This chance that there could be alternatives to being “rescued” that trafficked persons may prefer is one which the largely-Western crusade against “modern slavery” has almost consistently failed to recognise much less facilitate.

Together, neo-abolitionism and philanthrocapitalism tend to exhibit enthusiasm to uni-dimensionally measure the success of anti-trafficking measures by counting "rescues" in the field of the messy, uncountable complexities of human life. What they display a distinct lack of enthusiasm for is the prospect of engaging with individuals, valuing their lives, listening to individual aspirations, and attempting to accord respect to the desires humans beings at the individual level so as to facilitate the best possible outcomes for them, outcomes which may not involve what could well be ham-handed rescues.

Unfortunately, the lines of thought which support the raid and “rescue” model have not been entirely contained within the West. India's proposed law on trafficking appears to pay homage to it. One can only hope that better sense prevails and that Indian strategies to address trafficking do not sink to the level of merely counting supposed rescues.

July 19, 2018

Consent v Dominion: Sexual Offences in Indian Law

The Supreme Court is currently hearing a matter in which it is expected to determine the Constitutionality of Section 497 of the 1860 Indian Penal Code. This provision is popularly understood as one which criminalises adultery, and the IPC itself supports this understanding by calling the offence ‘adultery’. However, if the particulars of the offence it describes were considered, it would emerge that the provision is, more accurately, one which can criminalise a man who knowingly has sex not amounting to rape with a married woman without her husband's consent or connivance.

Making the provision as it now stands truly gender-neutral, as many demand, would not allow unfaithful wives to be jailed at their husbands’ behest. Instead, it would allow wives to have their unfaithful husbands’ women lovers jailed.

Although much public discourse treats IPC Section 497 as being discriminatory towards men since it cannot currently be used to jail women, it is quite firmly embedded in a worldview that treats women as the property of their husbands. These are husbands who would once, as the law earlier recognized, have had the liberty to decide when to have sex with their wives regardless of their wives’ feelings on the matter.

Current law has begun to acknowledge that this approach is problematic, and has begun to shed it. It now contains a mishmash of provisions some of which recognise women's rights and others which do not. Marital rape, for example, is recognised by the 2005 Domestic Violence Act but is still barely recognised by the 1860 Indian Penal Code despite its having been amended in 2013.

As far as IPC Section 497 which deals with adultery is concerned: if a man were to have sex with a married woman both with her consent and with her husband’s consent or connivance, her husband could potentially still be liable for having trafficked her. Although this is largely an academic possibility as it is difficult to envisage its realisation in real life, it remains a possibility because trafficking law does not require the person being trafficked to be transported anywhere for the offence to have been committed, and treats the consent of the trafficked person as being irrelevant.

Drawing on international law, the Indian Penal Code essentially defines trafficking to mean using unsavory means (such as threats, abduction, and deception) to recruit, transport, harbour, transfer, or receive one or more persons in order to exploit them. The exploitation could be physical or sexual, echo slavery, or involve forced organ donation. And the Code categorically states: “The consent of the victim is immaterial in determination of the offence of trafficking.”

This is not the formulation used in the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime’ which, in its definition of trafficking, treats victim consent as being irrelevant only if any of the listed unsavoury means have been employed.

The IPC formulation diverges from that seen in international law and reflects the Indian social tendency to deny some people agency, particularly if they happen to be women. And, as an aside, the IPC also makes it difficult to contemplate the legitimacy of voluntary sex work not undertaken by an individual in isolation.

The failure to acknowledge a woman's consent to mitigate what would otherwise be a clearcut case of trafficking and, in other circumstances, the refusal to consistently recognise her withholding consent in what would otherwise be (marital) rape may seem unrelated. Nonetheless, they evidence a deep-seated confusion in the law about whether sexual interaction should be legitimised on the basis of ‘consent’ or ‘dominion’, in the sense that some conservative interpretations of scripture began to understand the latter term over a millennium ago.

Men, in that ancient Biblical telling, created in God's image, have God-given dominion over all the Earth's other living beings apparently including women. The understanding that men have primacy seeped into modern Indian law through statutory provisions introduced by the British to the country which, being patriarchal itself, was receptive to them. Even where we've tried to modernise the law to negate dominion, we haven't fully embraced consent as the IPC definition of trafficking shows.

The patriarchal structure of the law is finally being challenged now although it hasn't been entirely overthrown which is what has resulted in statutory confusion. In courts and beyond, we're questioning laws which criminalise homosexual acts and adultery, and which decriminalise marital rape. We're also engaging with the issue of why the crime of rape shouldn't be relationship- and gender-agnostic.  

Currently, we are at a crossroads. We can choose to cling to the laws and social norms which colonialism and conservatism have left us with, and leave women at the mercy of patriarchy along with men who do not conform to patriarchal expectations of them. Alternatively, we can choose to go down a different path in which each individual’s autonomy holds sway instead of the age-old notion that a patriarch, whether in the form of a living person or a state which exclusively upholds his desires, holds sway.

There is every indication that we will choose not to continue to discriminate against people depending on their sexual orientation and the allied choices they make. We may also see ‘adultery’ as contemplated by criminal law being decriminalised. Perhaps in the not-too-distant future, that courtesy will be extended to every adult at least in relation to their private sexual lives with no-one being subject to another's dominion and each individual's choices in regard to their own life being respected.

July 12, 2018

[Link] IPC Section 377 Should be Read Down, Not Struck Off

Section 377 of the Indian Penal Code, infamous for criminalising homosexual acts, is the legal articulation of a traditional Judeo-Christian worldview (easily grafted onto conservative Indian thought) which has no place in the modern world. Even so, striking it down in its entirety would not be ideal, I argue over at Scroll.

Extracts

Section 377 of the 1860 Indian Penal Code is part of India’s colonial legacy. It criminalises homosexual acts using Victorian-era euphemism every bit as non-specific as the Biblical precepts it is supposedly in consonance with. [....]

Section 377 thus, in some circumstances, can accord relief to wives whose husbands rape them. Along with a 2017 Supreme Court ruling, which essentially held that sex with one’s wife is rape if she is less than 18 years old, this innovation forms the basis of judicial intervention which dilutes the marital rape exception enshrined in criminal law in India. [....]

That said, there are those who would suffer if Section 377 were completely struck down. It would therefore probably be prudent to read the provision down so that only those who voluntarily engage in “unnatural” acts without the consent of their partners can be targetted by it.

Having sexual offence law adequately recognise individual rights regardless of gender would require significant legal amendments, which are unlikely to see the light of day within the lifetime of most adults now alive. In the meantime, the least we should aim to do is ensure that tinkering with the law causes as little harm and as much good as is possible.

(Read the entire piece at Scroll: Rape laws: Why the Supreme Court must read down Section 377 – but not strike it down in its entirety )