Session #7: Sunday, 11 January, 12.15 - 14.00 (CSLG)
Panel coordinator(s): Anusha Hariharan, Independent Researcher (anju.hari@gmail.com)
Chair/discussant: Usha Ramanathan, Independent Law Researcher (uramanathan@ielrc.org)
Panelists, paper titles, and abstracts
The armed forces of a nation are created to safeguard its boundaries against external aggression and maintain its integrity and sovereignty. As the fundamental purpose of the armed forces is to fight during an armed conflict, the needs of the individual were (earlier) treated as subservient to this purpose. The armed forces also had a hierarchical structure based on rank, with an obligation to obey the orders of superiors. The officers had formal education, while the soldiers were generally uneducated. Military organizations usually considered it inappropriate to treat all ranks equally in relation to certain aspects of military life. However, all this has changed in the last 50 years, due largely to the international human rights laws.
The armed forces are an integral part of a democratic state and society. Their role is not merely to defend the state and its citizens against internal and external threats but also to protect and uphold the human rights and fundamental freedoms on which democratic societies are based. As representatives of the State, armed forces personnel are bound to respect human rights in the exercise of their duties. It follows that they must be entitled to the same rights and protections as all other persons, subject to certain limitations imposed by military life. When the human rights and fundamental freedoms of members of the armed forces are protected within their institution, they will be more likely to uphold these while carrying out their duties.
The concept of human rights developed after WW II. It was rarely used in relation to the armed forces because a soldier remained at the mercy of his military superiors, whose task was to enforce military discipline. Soldiers were given certain rights to complain about unfair treatment to their superiors. This right to make a complaint, however, cannot be compared to challenging a breach of human rights. There was no one standard of fair treatment for a military soldier, as they functioned under system that operated differently in different parts of the world.
Today, there are a large number of international human rights instruments which have a bearing on the human rights of soldiers. While some human rights instruments are intended to have a global application (in the sense that they are open for adoption by all States), others are geographically limited in their application. A very obvious feature of human rights instruments is that they recognize, at least implicitly, that some human rights are deserving of a higher degree of protection than others and that they may not be abrogated under any circumstances.
The ‘civilianization’ of the military legal system has taken place in a number of democratic countries. In some countries, military discipline procedure is used to deal with only relatively minor military offences, while more serious offences are dealt with by civilian courts. In some States, where the European Convention on Human Rights has been in force from early 1950, soldiers have themselves initiated the drive to make the disciplinary procedure compliant with human rights standards. They have appealed in the European Court of Human Rights, for alleged breaches of human rights. This has resulted in a change in the military disciplinary procedures to ensure compliance with the Convention.
This paper intends to critically examine the Vishakha guidelines from a feminist perspective. It examines the singular anomaly within the guidelines, i.e., an establishment of moral surveillance while it aims to put in place a less sexually hostile environment for women. It seeks to scrutinize how it holds on to notions of a legally conceptualized "sexual harassment" as opposed to looking at women's individual or collective experience(s) of it. This conceptualized understanding reflects a very protectionist viewpoint of both, of looking at acts and encounters of harassment itself, as well as, the protocol suggested to combat it. The paper will set to analyse how the guidelines are in tandem with patriarchal, hetero-sexist views of what constitutes violence against women, and how much they are in keeping with different sections of the Indian Penal Code that address these issues. The relevance of vishakha will also be looked at with specific reference to educational institutions. Various anomalies exist in the very framing of the guidelines, which lends itself to deterring what could be emancipatory dialogue around the very issue of sexuality. One can identify the sexually sterile environment in educational institutions where there are very many opportunities that could be used as a trigger to foray into this area, and the conceptualization of sexual harassment itself, as coming from the same root – patriarchal notions which place immense value on the ideal of the "chaste woman" – as opposed to allowing freedom of speech and expression, or the space for women to express their own sexuality, which would in turn bring about an experiential understanding of sexual harassment. The challenge is to see whether a code can be evolved through a rights based approach. This will keep in mind the difference between sexual attention and unwelcome sexual advances. The paper would further examine different cases of redressal in educational institutions and see how they have functioned in the wake of the guidelines. Finally, the paper would address the issue of contextualizing encounters of sexual harassment. The "meaning" of different instances of sexual harassment is not always so much in the content of the instance itself, but that which is very often a product of the context in which it takes place. Hence, it becomes all the more important to find a vocabulary that lends itself to comprehending and placing the "experienced" sexual harassment in a larger matrix of a contrived silence around sexuality of women and other sexual minorities.
In 2001, India recorded the lowest inter-census growth rate for the past fifty years. At the same time, India’s maternal mortality rate is the second highest in the world: 22 per cent due to abortions of which 12 per cent are illegal. According to some estimates, this translates into about 660 thousand women dying every year, illegally, despite abortions being legal for nearly 30 years. The significantly decreasing female to male child sex ratio (CSR) is widely believed to have caused the current slowdown in population growth. Decreasing CSR necessarily involves increased and frequent abortions. Given this, it is surprising that the rights of the female child, long-term demographic stability instead of maternal health, reproductive choice and emancipation dominate contemporary concerns over the issue. Why are women missing in the contemporary debates on declining CSR? Where have all the women gone? Can decreasing CSR be understood independently of illegal abortions, reduced maternal health? Contrary to feminist preoccupations with rights in this area, this paper articulates how abortion laws in India link illegal abortions and declining CSR coherently (and not problematically) with the ongoing project of economic globalisation. This raises a new challenge for a feminist politics that seek to address the anti-female bias inherent in the practice: one that moves away from demands for rights or pro-life/pro-choice concerns, to one that questions the supposed gender neutrality of the legal foundations of the market economy.
Stem cell technology has been hailed in the popular press as promising miracle cures for an entire spectrum of different ailments. From replacing cells in the body to repairing tissues to replacing entire organs, the range of possibilities reported is truly spectacular. Yet embryonic stem cell technology has raised many controversies internationally, with a number of countries seeking to regulate research in this area. India has adopted the position of encouraging research into embryonic stem cell technology. Guidelines on stem cell research and therapy have undergone numerous drafts from 2000 onwards, the final version being issued in 2007. In addition, there are detailed guidelines regulating both ART clinics and researchers handling human gametes and embryos. A draft Bill is being prepared to provide legislative force to these various guidelines. An analysis of the different regulations reveals an extraordinary number of basic inconsistencies, as well as complete reversals in policy from one guideline to the next. Fundamental issues such as oocyte donation, the ownership of IVF embryos, the creation of human embryos solely for research purposes and the like are dealt with cursorily, with little attempt to harmonize the provisions within or between guidelines. These and other important issues arising out of embryonic stem cell technology are being debated world-wide. Yet in India, despite substantial coverage of stem cell technology in the popular press, there is a complete absence of public knowledge or debate on these matters. The debate on embryonic stem cell technology is a debate on the rights of the individual, the ethics of research and the limits of technology. It is time India contributed to the debate.