Editorials January (for Current Affair class- 6and 7

Making laws work for rape victims

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July)

Today, the Justice Verma Committee is scheduled to release recommendations on ways to strengthen governments response to crimes of aggravated sexual assault. There has been a lot of noise in the media calling for harsher punishment for rapists. The demands have only grown louder as details from the barbaric events of the December 16 gang rape and murder in Delhi come to light. While cries for chemical castration and even death for rapists stem from the brutality of the crime, they do not address the root problem: the criminal justice system does not function the way it is meant to function. In fact, the publics frustration points to a decay of trust in the governments ability to deliver justice and protect its people. There have also been quieter, more reasonable voices in the media calling for a stronger, more sensitive, criminal justice system: one that delivers justice swiftly, gives rightful convictions and treats victims with dignity and compassion. While the substantive and procedural rape law is far from perfect, societys frustration is not based on the inadequacy of the law, but on effective implementation of the law. The law and reality In fact, statutory law and Supreme Court and High Court judgments have established a solid legal framework that protects rape victims and requires government authorities to follow victim-friendly procedures. Protections under this legal framework include requiring lawyers and social workers for victims at the police station and for police to take statements in a setting that makes the victim comfortable. At government hospitals, there should be special rooms to examine rape victims, equipped with medical kits that doctors should use to examine the victim and collect crucial evidence. When the victim testifies at trial vital evidence needed for getting a conviction it should take place in the judges chambers rather than in open court, and whenever possible, before a woman judge. For children, there are even greater protections and accommodations, many of which have been codified in the recently enacted Protection of Children from Sexual Offences Act, 2012. Unfortunately, there is a gap between this legal framework and practice on the ground. Collaboration works Of course, the success of any system comes down to the people who work within the system. The great majority of publicity about people who work within the criminal justice system, especially law enforcement officials, has been negative. Maybe the negative publicity is justified and brings needed attention to problems. But constant antagonism is counterproductive; it drowns out the good work countless police officials do every day. Good people dedicated to public service who work long hours for low pay without adequate training and resources. Yes, there are government officials police officials, medical practitioners, public prosecutors and judges who must change their attitudes and do their jobs better. At the same time, it is only human nature that if someone consistently hears negative criticism, they tend to become discouraged and desensitised to the feedback. Either
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they will sink to the level people expect of them or they will stubbornly refuse to raise their professional standards. There is a better approach that builds positive energy: civil society collaborating with government to strengthen the criminal justice system. Long-term strategies should focus on changing the culture of the criminal justice system so that it is victim friendly and implements the law. But improving performance immediately merely requires government authorities to follow the law already in place. A mechanism needs to hold government authorities accountable when they do not implement the law, regardless of the reason: whether because they are uninformed, do not have a clear understanding of the law, or it is inconvenient to follow. An effective way to hold government authorities accountable is to have a team comprising a lawyer and social worker, trained to handle cases of sexual violence, advocate for the victims interests at the police station till judgment. The team would work on the ground, advising on the law, supporting the victim and monitoring progress of cases. At first they will likely need to confront officials when the law is not implemented. But their broader approach would be one of a spirit of collaboration and cooperation. In Delhi In Delhi, the Rape Crisis Cell under the Delhi Commission for Women partners with nongovernmental organisations to provide legal and social support to rape victims. The Delhi Commission for Womens lawyers start providing oversight only at the trial stage. Still, the National Crime Records Bureau reports that in 2011, Delhi NCT had a 41.5 per cent conviction rate in rape cases compared to the 26.4 per cent national conviction rate. In both examples, conviction rates are higher This programme is a good model that provides advocates who represent the victims interests, while collaborating with government authorities to strengthen the criminal justice system. When government authorities collaborate with civil society groups, the criminal justice system functions more effectively: government authorities are more likely to follow victimfriendly procedures, investigations and trials will move more swiftly and conviction rates will rise. When this happens, potential perpetrators will think twice before they aggressively harass women. Women and their families will have greater confidence to report sexual abuse; and societys faith will steadily grow in the system meant to provide security and protect them. (Jonathan Derby is a U.S. licensed attorney who has extensive experience in human rights at grass-roots level in India.) Conviction rates improve when teams of lawyers and social workers supervise progress of individual cases in a spirit of cooperation with officials A perverse move The government was dragging its feet for long on the subject of freeing diesel pricing and eliminating subsidies but when it did act last week, it got its policy all wrong. Oil companies
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have been given the freedom to charge market price for diesel supplied to bulk consumers such as the railways and state transport corporations while prices at the pump level will move up marginally. Retail prices will eventually catch up with the market, assuming that the oil companies raise prices at regular intervals. Market pricing for bulk consumers may prune the subsidy bill of the government significantly but it is a perverse policy because those who deserve the subsidy the poor and lower classes who use public transport will now be forced to part with more money for their daily commute or travel. State transport corporations will have no option but to pass on the higher fuel costs to their passengers given their already fragile financial state and the inability of fiscally-strapped State governments to reduce excise; the Railways have already increased fares and train tickets will anyway cost more from today. The perversity of the governments decision will be evident if one considers that those who drive passenger cars including high-end SUVs that run on diesel engines will continue to enjoy the subsidy and pay at least Rs 10 a litre less than the bulk consumers. At the best of times, this is not a segment that deserves to be subsidised by the government. But for rich motorists to benefit when poor commuters are penalised upends all notions of equity. The government seems to have gone for a politically expedient and administratively simple solution as opposed to other, more contentious but equitable options to reduce its subsidy burden and keep its own finances in shape. A cess or higher excise duty on diesel cars and SUVs that guzzle up subsidised fuel would have addressed the twin issues of reducing the fiscal burden of subsiding diesel while also eliminating the economic rent derived by passenger car manufacturers who price diesel vehicles at a high premium to petrol ones. This rent is a direct product of the higher demand for diesel cars compared to petrol due to the large price difference between the two fuels. Alternatively, the government could have seriously examined the feasibility of introducing dual pricing whereby trucks and cars can be charged differently with the former alone enjoying the subsidised price. The final option, of course, would have been to free prices across the board with only the Railways and state transport corporations allowed supplies at a subsidised price. Such a move would have ensured equity by ensuring that those who use public transport are protected while private, individual transport is made to pay the market price. A troubled relationship frays further For Russia and the United States, this year began with a new row that revived the atmosphere of a Cold War and deepened the political crisis in Russia. As 2012 drew to a close the two countries adopted legislation penalising each other for alleged human rights abuses. Shortly before the New Year, U.S. President Barack Obama signed into law a bill that blacklists Russian officials allegedly implicated in the death of Russian lawyer Sergei Magnitsky and in other gross violations of human rights. The 37year-old lawyer, in 2009, died in a Russian prison where he was sent to by some Interior Ministry officials after blowing the whistle on their multi-million tax scam. Russia hit back by adopting an anti-Magnitsky law that not only mirrored American sanctions but also banned U.S. adoptions of Russian orphans. It is for the first time in the
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history of their relations that Russia/the Soviet Union and the U.S. have resorted to blacklisting each others citizens on the basis of their human rights record. In the opinion of Russias Foreign Minister Sergei Lavrov, the Magnitsky Act was a Republican conspiracy to destroy Mr. Obamas reset policy of constructively engaging Russia. The U.S. Congress adopted the Magnitsky Act on the same day it finally repealed the four decades-old Jackson-Vanik amendment, which required Russia to undergo every year a humiliating certification of its human rights record to qualify for normal trade relations with the U.S. Russian President Vladimir Putin called the U.S. move a slap in Russias face. Why does one country feel entitled to extend its jurisdiction to the entire world? This undermines the fundamental principles of international law, he told a press conference last month. Americans, who keep people jailed for years without being charged at Abu Ghraib and Guantnamo and who have legalised torture in their own country, have no business lecturing Russia on human rights, the Russian leader said. Leaving the door ajar Despite Russias anger, its response to the Magnitsky Act was largely a symbolic gesture that did not really hurt U.S. interests. Hardly any American officials will be harmed by not being able to travel to Russia or keep their money in a Russian bank. Analysts were quick to note that if Mr. Putin really wanted to hit the U.S. where it hurts he could have imposed restrictions on American companies in Russia or shut off U.S. logistics lifelines to Afghanistan that run through Russia. By sparing U.S. interests, Mr. Putin sent a signal that Moscow is still open to doing business with Washington. However, the U.S. sanctions and the Russian retaliation badly poisoned the air between the two countries. Both sides promised to keep adding new names to their blacklists of persona non grata. The reset is unravelling at the seams, said political scientist Boris Shmelyov. The two countries are a step or two away from a new round of the Cold War. Adoptions and Putins image The ban on American adoptions of Russian orphans, especially children with disabilities, hardened Mr. Putins image in the West as a cruel and vindictive autocrat, who used children as hostages in his political disputes with Washington. Critics said that for tens of thousands of Russian disabled orphans, foreign adoption was the only chance to find a family. Russians almost never adopt such children as they need expensive treatment and rehabilitation that are not available in Russia for free. Children with serious health problems accounted for a fair share of more than 60,000 Russian orphans adopted by Americans over the past two decades.
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Mr. Obama will now come under increased pressure from the Congress to put human rights at the top of his Russia agenda. Several European countries are weighing the option of adopting their versions of the Magnitsky Act. While the Magnitsky Act was driven by U.S. political battles, the anti -Magnitsky law had more to do with Russian domestic politics than with foreign policy. Apart from outlawing U.S. adoptions, the Bill allows Russian authorities to ban politically-active nongovernmental organisations (NGO) that receive American funds or engage in activities that represent a threat to the interests of the Russian Federation. It also bars Russians who also have dual Russian-American citizenship from participating in political NGOs. Mr. Putin thereby sought to kill two birds with one stone: strike a blow against his foes and boost popularity among his conservative constituency by stoking anti-Americanism. In a recent poll, more than 75 per cent of Russians said that they supported the ban on American adoptions of Russian orphans. At the same time the adoption ban met with indignation among the more enlightened middle classes and reignited urban protests that were sparked by Mr. Putins decision to reclaim the presidency last year. Up to 30,000 demonstrators marched through central Moscow earlier this month denouncing the ban as cannibalistic and branding its advocates scoundrels. Attempt at consolidation Analysts said Mr. Putin is trying to firm up his grip on power by pitting the conservative working class provinces susceptible to manipulation by state-run television against the increasingly Opposition-minded big cities. The Kremlin hopes to consolidate sections of society on the issue of foreign encroachment on Russias sovereignty, said analyst Dmitry Oreshkin. The Kremlin narrative is: there are enemies all around, so we must rally around our leader. However, Mr. Putins tactic had a bad downside: it provoked a split in the Russian elites. For the first time in recent history, several senior ministers, including a Deputy Prime Minister and the Foreign Minister, registered their opposition to the orphan adoption ban on the grounds that it violated Russian and international legislation. The disagreement was apparently not serious enough for any of the ministers to resign, but it may be just the tip of an iceberg. One section of the elite modernisers favour liberalisation and foreign investment to speed up growth while the other more conservative section, dominated by security cadres, fear that greater openness to the world would undermine their positions in power and therefore advocate tightening the screws on the Opposition and building new walls between Russia and the West. The conflict that has long been brewing in society has now spilt over to the ruling elite, which until a few months ago was united, said billionaire Mikhail Prokhorov, who last year ran for President and set up his own party, Civil Platform.
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Mr. Putin, who had long played the role of above-the-fight arbiter for rival power groups, is now seen to have joined the conservatives. Experts said his demonstrative refusal to investigate and prosecute the officials blamed for Magnitskys death showed how much he treasures the support of security clans, while the adoption ban demonstrated how little he cares for his international reputation and Russias relations with the West. The anti-Magnitsky law is a catastrophe for Mr. Putin. The road taken by the Kremlin will soon lead to a real crisis of his legitimacy, said Gleb Pavlovsky, a former Kremlin PR strategist. Driven by political one-upmanship at home, Russia and the U.S. are hitting out at each other with domestic legislation Taking on gold imports The hike in Customs duty on gold imports by 2 percentage points to 6 per cent was entirely expected, although a similar hike in the case of platinum imports was not. In the governments view, higher gold prices might drive some traditional gold users to it s likely substitute. Indeed, the Finance Minister had more than once hinted at a hike in tariffs for the yellow metal; the only question was the timing. Along with the imports of petroleum and edible oils, the purchase of gold from abroad has contributed to a widening trade imbalance and, consequently, to a clearly unsustainable current account deficit (CAD). During the second quarter of this year (July-September 2012-13), the CAD had widened to a record 5.4 per cent of GDP, well above official projections. The insatiable appetite for gold has cost the country dear: in value terms, gold imports nearly doubled from $29.9 billion in 2008-09 to $56.5 billion in 2011-12. Most of such imports have been inelastic and the government is only too aware that higher tariff might drive the gold trade underground. Besides, there is the genuine concern about Indias booming jewellery industry, which relies heavily on gold imports. Yet the macroeconomic dimensions are such that the government has been forced to take the tariff route to check demand. Simultaneously, it has done well to initiate a few steps to increase the domestic supply of gold for productive purposes. The gold deposit scheme is being given a face-lift so that it can lure more investors. Introduced in 1999, the scheme has not exactly been a roaring success. Operated by a few banks, it allows investors to trade in a minimum of 200 grams of gold for a gold certificate which will be redeemable after 3 to 5 years either as gold or cash. Banks pay a nominal interest that is tax free in the hands of the investor. Such concessions notwithstanding, the scheme has been a failure: very few investors want to surrender their gold stock, especially when it is in the form of inherited jewellery, which has a sentimental value to them. Even with the new incentives announced a lower lock in period for instance it is very doubtful that this trend will be reversed. This is where the second policy announcement permitting gold exchange traded funds to deposit a portion of their gold holdings with banks assumes significance. These measures are small steps towards harnessing idle gold holdings for productive purposes. Many more innovative schemes such as gold-backed deposit schemes will be necessary. Over the medium term, however, unless inflation is checked, it will be unrealistic to expect a significant fall in gold demand.
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A moment of triumph for women Starting with Tarabai Shindes spirited defence of the honour of her sister countrywomen in 1882, womens movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle. A transformation At a time when despair and anger at the futility of hundreds of thousands of womens lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand womens subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in womens studies libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense? The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph the triumph of womens movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory. Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause. If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction. The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children. Arguing that cultural prejudices must yield to constitutional principles of equality, emp athy and respect (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of sex in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation and the right of all persons, not just women, against sexual assault.
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Reviewing leading cases and echoing the critique of Indian womens groups and feminist legal scholars whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and inkhap panchayats , the committee observes: women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them. In terms of the definition of rape, the committee recommends retaining a redefined offence of rape within a larger section on sexual assault in order to retain the focus on womens right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of womens right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard. Voices from conflict zones Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault. Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on? The Delhi case The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option.
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The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, womens groups and ch ild rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, compreh ensive institutional reform in childrens institutions. The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy. (Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com ) The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape Antibiotic resistances apocalyptic threat Britains most senior medical adviser has warned MPs that the rise in drug -resistant diseases could trigger a national emergency comparable to a catastrophic terrorist attack, pandemic flu or major coastal flooding. Dame Sally Davies, the chief medical officer, said the threat from infections that are resistant to frontline antibiotics was so serious that the issue should be added to the governme nts National Risk Register of Civil Emergencies. She described what she called an apocalyptic scenario where people going for simple operations in 20 years time die of routine infections because we have run out of antibiotics. The register was established in 2008 to advise the public and businesses on national emergencies that Britain could face in the next five years. The highest priority risks on the latest register include a deadly flu outbreak, catastrophic terrorist attacks, and major flooding on the scale of 1953, the last occasion on which a national emergency was declared in the U.K. Speaking to MPs on the Commons science and technology committee, Davies said she would ask the Cabinet Office to add antibiotic resistance to the National Risk Register in the light of an annual report on infectious disease she will publish in March. Davies declined to elaborate on the report, but said its publication would coincide with a government strategy to promote more responsible use of antibiotics among doctors and the
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clinical professions. We need to get our act together in this country, she told the committee. The issue of drug resistance is as old as antibiotics themselves, and arises when drugs knock out susceptible infections, leaving hardier, resilient strains behind. The survivors then multiply, and over time can become unstoppable with frontline medicines. Some of the best known are so-called hospital superbugs such as MRSA. In the past, most people havent worried because weve always had new antibiotics to turn to, said Alan Johnson, consultant clinical scientist at the Health Protection Agency (HPA). What has changed is that the development pipeline is running dry. We dont have new antibiotics that we can rely on in the immediate future o r in the longer term. Changes in modern medicine have exacerbated the problem by making patients more susceptible to infections. For example, cancer treatments weaken the immune system, and the use of catheters increases the chances of bugs entering the bloodstream. We are becoming increasingly reliant on antibiotics in a whole range of areas of medicine. If we dont have new antibiotics to deal with the problems of resistance we see, we are going to be in serious trouble, Johnson added. The supply of ne w antibiotics has dried up for several reasons, but a major one is that drugs companies see greater profits in medicines that treat chronic conditions, such as heart disease, which patients must take for years or even decades. There is a broken market model for making new antibiotics, Davies told the MPs. She has met senior officials at the World Health Organisation and her counterparts in other countries to develop a strategy to tackle antibiotic resistance globally. Powerful drugs losing efficacy Drug resistance is emerging in diseases across the board. Davies said 80 per cent of gonorrhea was now resistant to the frontline antibiotic tetracycline, and infections were rising in young and middle-aged people. Multi-drug resistant TB was also a major threat, she said. Another worrying trend is the rise in infections that are resistant to powerful antibiotics called carbapenems, which doctors rely on to tackle the most serious infections. Resistant bugs carry a gene variant that allows them to destroy the drug. What concerns some scientists is that the gene variant can spread freely between different kinds of bacteria, said Johnson. Bacteria resistant to carbapenems were first detected in the U.K. in 2003, when three cases were reported. The numbers remained low until 2007, but have since leapt to 333 in 2010, with 217 cases in the first six months of 2011, according to the latest figures from the HPA. Guardian Newspapers Limited, 2013 British government strategy to promote more responsible use of antibiotics among doctors Responsibility to protect
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In banning the screening of Kamal Haasans Vishwaroopamfor a period of two weeks, the Tamil Nadu government has recused itself from a fundamental responsibility that of protecting the right to free expression. It has relied on the old chestnut maintenance of law and order and public tranquillity to justify the indefensible. That a clutch of fringe Muslim organisations had protested against the film, claiming to be offended by its alleged depiction of the community in a negative light, hardly justifies restraining its screening. If a threat of violence was anticipated, the right response would have been to ensure that the necessary security arrangements were provided to ensure its smooth screening rather than slap a temporary ban. Whether a film contains objectionable elements, and whether it may be screened or not, are decisions that vest with the Central Board for Film Certification, constituted under the stringent Cinematograph Act, 1952. It is difficult to believe that a film which passes through the process of pre-censorship with its rigid guidelines contains material that would upset the sentiments of a religious community and pose a real danger to public order. It is a pity that such reflexive bans are imposed despite the courts reiterating time and again that a law and order threat does not justify such action. In 2006, the Supreme Court adopted this position while dismissing a petition seeking to bar the screening of The Da Vinci Code ; a little later, the Madras High Court quashed the Tamil Nadu governments order suspending the screening of the film on the ground that it may lead to demonstrations and disturb the peace and tranquillity of the state. The landmark case, which set the t one for these and related judgments is S. Rangarajan vs. P. Jagajivan Ram , in which the Supreme Court ruled in favour of the right of the former, a film producer, to release Ore Oru Gramathile , which was critical of the reservation policy in Tamil Nadus educational institutions. In a stirring judgment that underlined that it was the duty of the state to protect the right to unpopular forms of speech, the court held that freedom of expression cannot be suppressed on account of threat of demonstration and processions or threat of violence. As it observed, this would be tantamount to negation of the rule of law and a surrender to blackmail and intimidation. Given the precedents, it is highly doubtful that the Tamil Nadu governments ban on Vishwaroopam will withstand judicial scrutiny. In capitulating before those who protested against the film, the State has only passed the buck on its screening to the judiciary. Could this be exactly what it wanted? The great number fetish One of the most prominent features of Indias middle-class-driven public culture has been an obsession about our GDP growth rate, and a facile equation of that number with a sense of national achievement or impending arrival into affluence. In media headlines, political speeches, and everyday conversations, the GDP growth rate number whether it is five per cent or eight per cent or whatever has become a staple of our evaluations of the state of national well-being and future trajectory. Ever since Goldman Sachs (an investment banking firm headquartered in New York city) released a report in 2003 (Dreaming with BRICs: the path to 2050) touting Brazil, Russia, India and China (BRIC) as the harbingers of a new wave of global accumulation, we Indians have been afflicted by an optimism disease with little empirical traction. Since then, the GDP numbers implications for Indias development, her attractiveness as an investment site, our standing relative to China, and our
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competitiveness in the games nations play have become an inescapable part of our social lives. As the former CEO of Infosys and leading public intellectual Nandan Nilekani notes in his book Imagining India , Wherever I go, I find that Indians know our growth numbers backward and forward, and there is a strong, common feeling among us that our country has finally come of age. Fast growth, limited results Yet, in a recent essay, the eminent economists Amartya Sen and Jean Drze pointed to an important problem with equating Indias economic performance with its GDP growth rate. They noted: There is probably no other example in the history of world development of an economy growing so fast for so long with such limited results in terms of broad-based social progress. Sen and Drze were referring to the fact that for about 32 years now (since 1980), India has averaged annual GDP growth rates of approximately six per cent whereas, the nations ranking in terms of the Human Development Index has remained unchanged over that period: we were ranked an abysmal 134 in 1980, we were ranked exactly that in 2011. In 1980, about 80 per cent of our population subsisted on less than two dollars a day, and that percentage has declined by as little as five per cent since then. Comparable growth rates sustained over similar lengths of time have utterly transformed societies in the 20th century: South Korea, Taiwan, Singapore, and large parts of China, to mention the most prominent ones. They have gone from largely poor, illiterate and agrarian societies to middle class, literate, urbanised and industrial societies with standards of living vastly superior to ours. Whatever may be said about India, it is obvious that no structural transformation of our largely poverty-stricken economy has occurred and what is more, none seems very likely in the immediate future. Not only have three decades of high GDP growth gone unaccompanied by a societal transformation, we seem to have regressed on certain fronts. For instance, while India ranked either first or second in 1980 within South Asia (defined here as comprising India, Pakistan, Bangladesh, Nepal, Sri Lanka, and Bhutan) on most yardsticks such as life expectancy, female literacy, infant mortality, maternal mortality ratio, improved sanitation, child immunisation, and mean years of schooling, today we are ranked either fifth or last among the South Asian nations on these same yardsticks. Ironically, the only indicator in which we have done well is in the rate of GDP growth per annum. A country like Bangladesh, whose annual GDP growth rate has averaged about half that of Indias over these years, has done vastly better in terms of translating that growth to the quality of life for its poor, its young, and its females. On most yardsticks that matter, Bangladesh now outperforms India. That 30 years of more than twice the much-disparaged Hindu rate of growth has left us at the absolute rock-bottom of the world tables in terms of malnourished children (44 per cent at the last count significantly more than that anchor of all things sorry and sad about this world, sub-Saharan Africa whose percent of underweight children is 25 per cent) should tell us that there is something seriously amiss about looking at the annual growth rate of the GDP to measure the well-being of a society. On demographic dividend
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The Goldman Sachs report argued that by the year 2050, if Brazil, Russia, Indian and China grew at a certain rate per annum, they would be among the worlds six largest economies in terms of overall size. This does not tell us anything about either per capita incomes (in terms of which these countries would remain well behind the more affluent nations) or the quality of life of the majority of people therein. The report based its projections mainly on something called the demographic dividend. In simple terms, young societies like India and China have a disproportionately large percentage of people in the workforce relative to those outside it. The size of the working-age cohort is central to the overall attractiveness of an economy from the perspective of an investment bank like Goldman Sachs because it is likely to be in the market for all sorts of goods homes, automobiles, appliances, electronics, cosmetics, fast-food, etc. The working-age cohorts employment earnings, moreover, can support a social security net for those who have retired and now have to subsist on pensions and savings. On a comparative yardstick, Indias demographic profile was seen by the BRIC report as most favourable because this ratio of working to nonworking populations would remain in favour of the former well into the 21st century in our case. In the euphoria over the BRIC report (it was the basis for the disastrous India Shining campaign of the Bharatiya Janata Party; the same projections were echoed in speeches by Prime Minister Manmohan Singh, Union Finance Minister Chidambaram, Deputy Chairman of the Central Planning Commission Montek Ahluwalia; and they were quoted ad nauseam in the mainstream media) certain basic facts were glossed over. Firstly, the GDP is a statistic from within the field of National Accounts whose very definition indicates its limited ambit: it is the total market value of all final goods and services produced in a country in a given year. In other words, it is a statistic that measures the quantity, not the quality or content, of economic activity in a society. When a country liberalises either domestically as India began to do in 1980 or across its international borders as we began after 1991 the increased volume of production, investment, trade and market exchanges will inevitably result in an increase in the GDP. To infer from the growth in GDP any consequences for societal welfare is not logical. The GDPs precursor was devised during the Depression of the 1930s as western governments (in Britain and the United States most prominently) tried to get a handle on the basic statistics of the different sectors of their economies in order to plan state policies to get them out of recession and on to growth. Simon Kuznets and John Maynard Keynes, both pioneers in its creation and measurement, warned against confusing GDP with anything other than a measure of the sum of economic activity of a society, and especially against confounding it with societal welfare. Something like the Exxon Valdez disaster in Alaska will inevitably increase the GDP as the massive clean-up means billions of dollars will be spent, whereas the environmental impact of that disaster did nothing to diminish the GDP of the U.S. as damage to nature is rendered an externality. On the other hand, the positive impact of people in a community bartering or exchanging services (Ill baby sit for you this week while you fix the leak in my roof) goes unregistered on the GDP metric. Secondly, the BRIC report emerged not from an academic body or a policy think-tank. It came from an investment bank that was interested in getting people to put their money into a
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newly created Emerging Market fund. Creating a buzz about these economies, and finding some hard nugget or fact that seemed to suggest their fortunes were on the rise, is an inevitable part of the marketing of such funds. The demographic dividend argument offered a perfect empirical fact of just this sort. The extrapolations into the future (projections were made as far as 2030 and even 2050) by a firm that could not foresee (and was in fact a substantial culprit in) the financial crisis that engulfed the world economy barely four years later were essentially meaningless. It was moreover a tautological argument in the sense that given the overall size of the BRIC economies it was inevitable that their GDPs would over time end up being among the largest in the world. The greater the buzz Goldman Sachs could create about the BRIC economies, the likelier the success of their Emerging Market funds in the short run, which added to their profits as the firm made money off every transaction therein. The Goldman Sachs report should have been assessed as advertising copy rather than as unbiased prognostication about the future of the world economy. (By the late 2000s, as the BRIC economies with the exception of China failed to perform to expectations, Goldman Sachs had already lost interest in them and had started promoting MIST, another emerging market fund based on Mexico, Indonesia, South Korea and Turkey. The analogy to advertising sloganeering rather than economic analysis should be obvious to anyone here.) Thirdly, for India (or any society) to realise its demographic dividend, at least three factors are critical: its youth need (a)quality education, (b) good health, and (c) jobs that pay a decent wage and enhance their intellectual and other skills. The story of Indias post independence development has been one of failure across all three of these sectors, and the picture has not improved post the economic liberalisation initiated in 1991. Recent studies have confirmed what every Indian already knows: the quality of public education at the primary and secondary levels has been abysmal. In large part this is because since 1947 we have emphasised tertiary education for a narrow middle-class and elite, and underinvested in primary and secondary education for the masses. We have already seen that with the highest rate of malnourishment of children below the age of six in the entire world, and a public health infrastructure that exists more on paper than on the ground, especially outside the cities, large segments of our populace are not in good health. The difficulty of getting clean water, the unavailability of toilets, and decrepit or non-existent sewage systems, have also meant high incidence of preventable diseases like cholera, typhoid, and dysentery. And when it comes to jobs, recent decades of high growth, especially since 2000, have been accompanied by either stagnation or even decline in the absolute numbers of those employed in the organised sector of the economy. Unlike Korea or Taiwan or China (all three of whom also had a thoroughgoing land reform that eliminated landlordism and other feudal holdovers) whose growth was concentrated initially in relatively labour-intensive sectors such as manufacturing, ours has been skewed heavily towards skill- and education-intensive sectors like Information Technology, pharmaceuticals, and business process outsourcing. The performance in these sectors has been stellar in terms of exports and their contribution to the GDP, but not in terms of their ability to generate large numbers of jobs. Twenty years after the onset of the phenomenal IT boom, even with the most expansive definition of its ambit, this sector only employs about nine million Indians while India produces about 13 million new entrants into the job market every year .
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What all this adds up to is this: given its history of inadequate investment in human capital and the present patterns and trajectory of its economy India seems unlikely to reap the demographic dividend that other societies seem to have cashed in on. There is nothing inherent in demographic patterns that guarantees economic success: whether a certain set of preconditions eventuates in socially widespread and meaningful growth depends, as always, on state policies that prioritise human capital (the health and education of its citizenry); on efficient state and political party institutions to deliver these programmes to the people; and on the ability to insulate these programmes from being hijacked by elites and middlemen. Middle class focus How then can one explain the Indian middle class obsession with the GDP growth number, and the extent to which many of us have equated high growth rates of recent years as a sign of our emergence as a global power? One has to step outside the domain of the empirical and the economic, and into the social and the psychological to understand this obsession with a number, this fetish we have developed for the GDP. The Indian middle class is not conventional in the sense of being sandwiched between rich, conservative elites and the lowest third of a society that is poor and potentially revolutionary. In that ideal type, the middle class was the vanguard in the emergence and consolidation of liberal democracy, individual freedoms, capitalist development, and a politics of moderation and civil society. There was a convergence between the material and ideological needs of this middle class that made it the champion of liberal democracy and market capitalism. Or as the comparative historian Barrington Moore Jr. put it in a pithy formulation: no bourgeois, no democracy. In India, the middle class is folded into the apex and is the dominant component of the top 20 per cent of society in terms of income and wealth, as well as in terms of cultural and symbolic capital as reflected in its education, caste-status and westernisation. It is overwhelmingly upper caste and its substantive, as distinct from rhetorical, commitment to egalitarianism and democracy outside its own narrow ambit, and often even within it, is shallow. This class self-image is that of a meritocratic group that has advanced through education, discipline, and deferred enjoyment. However, both the colonial period and the decades after independence show this merit to be based more on privileged and restricted access to western education and professions that emerged in the wake of modernisation rather than by rising to the top in a context marked by widespread equality of opportunity. Even if its commitment to the idea of inclusive economic development that makes a significant impact on the daily lives of the vast majority of its fellow citizens was sincere, we have neither the political institutions state bureaucracy or party cadres nor the political commitment to act in ways that will, at least in the short-run, go against this middle class own material interests. This disjuncture between a set of ideological or rhetorical commitments to development, on the one hand, and, on the other, the absence of the institutional means to achieve them, as well as the fact that their very achievement might jeopardise our own status as an elite, makes the Indian middle class peculiarly susceptible to
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technocratic quick-fixes. Our desire to be seen by our peers in the rest of the world as an emerging economy, or a successful nation, seems to often overwhelm our ability to regard the economic and social reality that surrounds us with a clear eye. The GDP growth rate number, and its neat extrapolation into the future by reports like the one by Goldman Sachs that seem to literally leapfrog over the difficult, messy and forbidding social and political tasks that are the inevitable prerequisite of successful economic development, thus capture our imaginations in ways that are obsessive. A fetish is an inanimate object imbued by humans with magical powers and believed to bring good luck or fortune. We have fetishised the GDP number and read all our hopes and dreams into a statistic that was never designed to bear the weight it has come to carry. The reverence and faith with which we have treated the GDP number says more about the socialpsychology of our middle class and our desire to be seen as a successful and emerging economy than it does about the actual state of life for the vast majority of our fellow Indians. (Sankaran Krishna is professor of political science, University of Hawaii at Manoa, Honolulu, U.S. Email:Krishna@hawaii.edu ) The middle class is overwhelmingly upper caste and its substantive ... commitment to egalitarianism and democracy ... is shallow. In spite of three decades of high economic growth, the Indian Republic has failed to achieve broad social progress. Giving our youth a future depends on quality education, good health and jobs. An obsession with GDP growth cannot deliver that, writesSankaran Krishna Indias benign constitutional revolution This is the story of how and why the framers of the Constitution of India deliberately designed a procedural error in the adoption of the new Constitution with a view to severing the seamless transition of legal authority from the British Crown-in-Parliament to the new Republic of India. The deliberate procedural error consisted in a deviation from the Constitution making procedure prescribed by the Indian Independence Act, 1947 the law enacted by the British Parliament granting India independence and formally authorising the Constituent Assembly to draft a Constitution for the newly liberated state. To be sure, the framers of the Constitution of India were not the first, and indeed they were not the last to deliberately incorporate such procedural errors in the process of Constitution making. The founders of the Constitutions of several other states including Ireland, Pakistan, Sri Lanka and Ghana, which were being liberated from the British Empire, took such a step. In doing so, they were all motivated by the same goal: that of ensuring constitutional autochthony. Constitutional autochthony The etymological roots of autochthony, which is not to be confused with autonomy, are to be found in the Greek autos(self) and chthon (earth). The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose authority can be located in the new states own soil. The dominant academic view in the middle of the 20th
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Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree : the chain of legal validity authorising it. This proposition found doctrinal support in the influential theory propounded by the legal philosopher, Hans Kelsen, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsens theory was that the basic norm ( grundnorm ) of the imperial predecessors Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as legal by the Constitution of the imperial predecessor. On Kelsens account, only an unlawful or revolutionary act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor. Such break in legal continuity is automatically achieved where a former colonys independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted legally by the Crown -inParliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is legally granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliaments enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States. Following the constitution-making procedure stipulated in the statute of independence would have meant that the validity of the new Constitution could ultimately be traced to an imperial grant. The mere verbal invocation of We the People as the source of authority in such cases would have rung hollow, apart from being jurisprudentially implausible since the source of authority of the new Constitution would continue to be the imperial predecessors Constitution. In such cases, it was thought that since there was no revolution, one had to be deliberately made up in order to secure an autochthonous Constitution. Accordingly, as John Finnis argues, the framers of new Commonwealth Constitutions took great care to do something illegal so as to make up a revolution, however contrived. Irish influence The Irish were the pioneers in conceiving the idea of a benign legal revolution geared towards constitutional autochthony. Ireland was granted independence under the Irish Free State Constitution Act, 1922 enacted by the British Crown-in-Parliament which also authorised the Irish Constituent Assembly to draft a Constitution for the newly liberated state. Thus, the Irish Constitution of 1922 was not autochthonous.

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Though it was drafted by an indigenous Constituent Assembly, its chain of legal validity could be traced to an imperial statutory grant. With a view to changing this state of affairs, in 1937 the Irish Parliament amended the Constitution by deliberately violating the procedure for amendment stipulated in the 1922 Constitution and put the amended Constitution for acceptance in a referendum. Going one step further, the Irish Parliament also repealed the Irish Free State Constitution Act, 1922 enacted by the British Parliament, though it was not empowered to do so. It is widely accepted that this successfully severed the chain of validity with the Crown-in-Parliament and ensured a truly autochthonous Constitution. The framers of the Indian Constitution appear to have rehearsed the Irish route to autochthony to the extent possible in Indian conditions. Independence was formally granted to India by the Crown-in-Parliaments enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown. The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act something the Constituent Assembly did not have the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution. In this fashion, We the People , through the members of the Constituent Assembly, came to be the source of authority of the Constitution, rather than the authority being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament. Why did it matter? This quest for autochthony is likely to come across to some as an abstruse quibble that shouldnt concern anyone other than the most pedantic legal theorists. There were, however, two reasons why the framers of new Commonwealth Constitutions felt constrained to pay such close attention to it. Firstly, it was feared that the British Crown-in-Parliament could, however improbably, reassert its authority over the newly liberated state by repealing the statute of independence and abrogating the new Constitution. There was, of course, no immediate apprehension of the British taking such a step. All the same, the framers of new Commonwealth Constitutions would have found, as Geoffrey Marshall notes, merely
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prudential reassurances to be precarious pegs to hang their nations independence on. Secondly, for sentimental considerations, the framers would have been loath to let the new Constitution be grounded in an imperial grant or be assented to by the British Crown. They would have wanted the new Constitution to be truly autochthonous, stemming from the authority of We the People so that an independent future could, albeit symbolically, be insulated from a troubled imperial past. (Shivprasad Swaminathan is Assistant Professor, Jindal Global Law School) How We the People came to be the source of authority of the Constitution A manifesto for change In 1979, the Supreme Court of India described an act of rape as a randy molestation, before going on to lament societal permissiveness on the carnal front, evinced in its view by libidinous brahmacharis and lascivious dating and mating by unwed students. Former Chief Justice of India J.S. Verma, former Supreme Court judge Leila Seth, and eminent lawyer Gopal Subramaniam have, this week, helped blow away the toxic shadow that words like these cast over debates on sexual violence in India. Formed in the wake of the gang rape of a Delhi woman last year, their committee has produced a text that will long be invoked in debates over criminal justice in India. Few of their 22 recommendations on everything from the promulgation of long-pending criminal law amendments to police reform and even street lighting are in themselves new. However, the report founds itself on the Constitutions promise of equality and justice for all , bringing the rights of women to the centre-stage of our national project. Not all will back each of the committees proposals. For example, the committees proposal to disqualify politicians facing certain kinds of criminal cases from standing for election even prior to conviction is controversial. The idea has been resisted by all major parties since 1998. Yet, the foundations have been laid for a forwardlooking debate and meaningful action. Even as we celebrate this progress, therefore, it is also important to cast an eye on how much work remains ahead. Like all manifestos for change, the report paints in broad strokes strokes that will need careful filling-in to become a blueprint for real change. Police reform, for example, is key to its thrust. Yet, the report does not tell us precisely what kinds of laws are needed to bring about autonomous and perhaps even more important, competent policing. Elsewhere, its recommendations can be accused of a degree of naivet. It would indeed be a step forward, for example, if all marriages were to be registered in the presence of a magistrate. Yet, it is hard to see how a magistrate will ensure that the marriage has been solemnised without any demand for dowry. Perhaps most challenging will be giving teeth to recommendations that involve profound social change. It is also true that our society needs children to be informed and equipped with the knowledge and skills to make responsible decisions about sexuality. The real problem, though, is we have a society without a responsible idea of either sexuality or equality. Indias recent history is, sadly, littered with exhortations for change which went nowhere. It will take sustained citizen mobilisation to ensure the committees work amounts to more than words on paper.
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Recycle grey water UN-Habitat has commenced a new global consultation to reiterate the crucial role of wastewater management in the water cycle and explore policy options for a sustainable future. These consultations have also become necessary to set a future goal for water use, particularly for the years following 2015, which is the target year for the Millennium Development Goals. For India a severely water-stressed region this offers an opportunity to reflect on its policies and draw lessons from best practices across the world. The core challenge facing the country is the yawning gap between demand for water and the severely constrained supply. From 813 billion cubic metres the figure for 2010 demand is set to reach 1,093 BCM by 2025. Conventional resources alone cannot meet this steep increase. There is a pressing need to explore alternative sources. In this context, policymakers have done well to promote water harvesting to improve supply. But they have utterly failed when it comes to reusing water. Industrial scale recycling would help, but it could be expensive. On the other hand, the often overlooked building level reuse of grey water wastewater from kitchen sinks, showers and laundry fixtures is a more effective strategy to pursue. According to a Centre for Science and Environment estimate in 2011, kitchen use, shower and laundry consume more than 70 per cent of the 920 litres of water supplied per household per day. Building systems seldom trap this wastewater for non-potable use such as toilet flushing, fire fighting and gardening. Instead, they drain it out along with sewage, burdening the system. More important, the precious water is lost. In contrast, countries such as Japan extensively recycle water and successfully tide over their water deficit. Through a combination of strategies involving small treatment plants and closed loop water supply at building level, Japan reuses more than 53 million litres of water every day. In addition, innovative bathroom fixtures conduct used sink water directly to the flush tank of the toilet and save about 22,000 gallons every year. Recycling needs changes to plumbing arrangements in a building, but it is not hard to implement or monitor. What is missing is the will and regulatory framework. Cities such as Nanded have amended their building rules to make wastewater treatment in large buildings compulsory, but such provisions are present more on paper than in practice. If policymakers are serious about increasing water use efficiency through recycling a goal set by the National Water Mission buildings should be compelled to meet most of their non-potable water requirement through grey water reuse. Safety for the last woman The trauma and eventual death of a young student from Delhi following her brutal gang rape awakened many across the country to demand accountability from the government to establish stronger laws and more effective institutions to prevent violence against women. The need is to ensure greater security and justice for women and girls within a larger framework of a humane, just and equitable society. All girls and women, to a lesser or greater degree, are unsafe within homes and in public spaces, and the changes in law and institutional systems must address the multiple ways in which they are vulnerable to violence and intimidation. Feminist groups have long developed
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a consensus blueprint of many measures which need to be adopted for this, including a far more comprehensive definition of sexual violence, and more effective and impartial institutions and processes for registration, investigation and prosecution of offences. But in designing these solutions, it is important to also remember that whereas every girl or woman is vulnerable to violence, the most vulnerable are women who also suffer other social and economic disadvantages and oppression. These include dalit and adivasi women, women of minority communities, women in conflict situations and disabled women. In these most threatened ranks are also homeless and destitute girls and women, sex workers, and girls trafficked for sex work and domestic labour, domestic workers, and casual women wage workers, rag pickers, beggars, street vendors and others who struggle to survive against a hostile state, among many others. The recurring sexual assaults and harassment which these vulnerable women face are not isolated incidents, but instead are grim elements of daily living, in which sexualised violence against the powerless is normalised and invisibilised. Sexual molestation is routine most nights for homeless women living on city streets, but these women fear the police the most. Dalit girls and women routinely suffer sexual abuse. Sexual exploitation is common against girls and women with intellectual disability living in institutions. Violence against women with disabilities is often lost in silences, because they are unable and powerless to communicate the acts of violence to which they are subject, and there is none to listen. There are few protections for human rights of women in conflict areas, when they suffer sexual violence from men in uniform. Womens bodies are used as battlefields in mass communal violence. Domestic workers have far less protection from sexual assault and harassment in the confines of their employers ho mes. Single women suffer more violence from men, because they are seen as unprotected; and the criminal justice system is even more indifferent, or actively hostile to single women survivors of violence. Male aggressors molest and harass with impunity because they are assured that the imbedded patriarchy of institutions of the criminal justice system will protect them. But the police, prosecutors and judges often carry other prejudices in addition to patriarchy, against disadvantaged castes and tribes, minorities, single women, slum dwellers, homeless people, migrants, disabled and mentally ill people, sex workers and sexual minorities, and against the poor in general. Women survivors of violence from these sections are even more likely to face entrenched institutional biases from the criminal justice system. We would need a new and sensitive imagination of the criminal justice system if it is to secure justice and protection to these last women in the shadows of our worlds. A mechanism of acknowledging the special vulnerability of socially disadvantaged survivors of sexual violence should kick in from the very first act of registering the complaint, and the criminal justice system should be held legally accountable to provide adequate legal support and protection at every stage of investigation and trial to ensure that she has equal access to justice. Since her vulnerabilities are multiple, compensation should be multiple as well.

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Recognising multiple vulnerabilities would also require condoning delays in registering cases and filing evidence, because the victim facing a hostile state would need to build courage to approach the judicial systems. For instance, in conflict and post-communal violence sites, women sometimes take months or even years to feel confident enough to file their complaints. Protection to security personnel by laws like the Armed Forces Act should be withdrawn, and in any case, even until such laws are in force, they should provide no protection for sexual crimes. In which moral canvas can such acts be seen in the line of duty? The current policy of clearing the streets of vendors and chasing away other people who occupy public spaces at night makes the street more unsafe for women. A greater presence of people and well-lit public areas at night are essential in reducing the danger to women travelling to and from work as well as homeless women. All departments that deal with disability pension administration should have a clearly marked desk where people can go to report sexual harassment and assault. Urban homeless women can never be protected from violence, unless the state has a legal duty under the law to ensure that all homeless women, as well as women survivors of violence who leave their homes, are ensured by the state of safe and dignified spaces. The shelters for women should be open, voluntary, dignified and above all secure. This should form part of any law which aims at safety for women. The numbers of affordable student and working women hostels need to be built to ensure safe accommodation for migrant women. The first and most urgent claims of these most marginalised and vulnerable women for safety and justice must not be forgotten. In the end, our cities and villages are only as safe as they are for the most disadvantaged and powerless woman and girl, weighed down by social oppression, poverty and disability. No sweetening this bitter pill The absence of a well thought out policy framework for strengthening the health system is the most important issue facing the health sector in India. In the government, there is no clarity on what the nations health system should be 10 years hence. Should it be a public sector dominated system like Brazil or China; or a regulated private-led like the U.S.; or one where both sectors function but have only one payer as in the U.K.? In Japan, delivery is private but the government sets the prices. Each option has its costs, benefits, tradeoffs and systems to ensure control on costs and quality. Unregulated India is a unique laissez faire model with a private sector-led health system that is unregulated and has no rules of the game spelt out, not even as minimal as those laid down for opening a liquor shop. And so, one can set up a nursing home in a residential colony; throw infectious waste anywhere, charge any amount that the market allows and have no systems of oversight to assure quality. The private sector is further incentivised by excise
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duty waivers, subsidised loans for establishing hospitals, tax breaks and a liberalised health insurance market with tax exemptions for the premium. More recently, a new innovation has emerged known as government sponsored insurance schemes (Rashtriya Swasthya Bima Yojana, Arogyashri, Kalaignar, etc.) under which governments buy the insurance on behalf of the people/target group for providing cashless services for inpatient care, mainly surgeries. Under this scheme, the providers charge on a DRG basis, the insurance companies have assured incomes and the entire risk is borne by the government. While such schemes have widened access by making private sector facilities available, their impact on addressing the three critical issues of the health sector equity, quality, and efficiency has not been addressed. Instead, pricing structures are distorted and new dimensions of fraudulent and corrupt practices have entered the health sector that continues to register inflation at 30 per cent, with negligible impact on reducing catastrophic expenditures, impoverishing millions in the process. Privatisation of the health sector started in late 1980s, accelerated in the 1990s with the further withdrawal of the state under the punishing conditionality of the IMF structural adjustment, and got further emboldened with the extensive incentives provided. In 2005, the state bounced back with a three-fold increase in the budget to revitalise the rural health delivery systems under the National Rural Health Mission, running as a parallel track to the private eco system. It is this duality and dysfunctional policymaking that is haemorrhaging the sector and requires to be stopped without delay. The worn down public health infrastructure cannot be revitalised without changing the rules of the game, bringing in legal provisions to regulate further growth of the private sector, make it efficient and accountable and provide a level-playing field. Bihar experiment It is time to recognise the market failures inherent to this sector and the role of the political economy that is sustaining it, making it increasingly impossible to regulate and establish institutional mechanisms with the requisite capabilities to effectively manage the mess. Bihars recent experiment of outsourcing diagnostics to the private sector is telling unqualified persons were employed at some centres, but no action was taken due to political pressure. It is scary to think that a number of innocent people might have been given the wrong diagnosis and put on needless medication. This is just a small example to illustrate the kind of mess we are in. The policy confusion is worsened by the push for greater decentralisation without ensuring the availability of capacities at those levels to manage such complex systems. It is against this scenario that Chhattisgarhs recent policy initiative needs to be viewed. The polic y of contracting out diagnostic services to private sector networks in 379 public facilities for 10 years, guaranteeing a minimum patient load and permitting paying patients in addition and prices pegged to those paid for under the Central Government Health Scheme (CGHS), monitored and managed by a third party, is fraught with adverse implications for the strengthening of the public sector and huge costs for the government, should it choose to pay for them.
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Absence of strategy It is not the outsourcing that is wrong. It is the absence of a strategy to draw on the strengths of the public and private sectors. If the government is unable to recruit staff to establish laboratories in, say, an area like Bastar, it is unclear how the private sector can be lured to set up, for instance, a radiology unit, there unless huge amounts are paid to it to cover the sustainability risks involved. Likewise, outsourcing is being attempted in areas that already have laboratory facilities. While the value addition is not clear, it will undoubtedly result in the closure of the public sector services and also entail paying three times more to the private sector. And it will be three times as the CGHS prices that are being taken as a benchmark, based on the average of prices quoted on a tender basis. There is no scientific basis for CGHS rate-fixing and such a system will only result in overpaying the private sector in Chhattisgarh where the prices of inputs vary from those in Mumbai or Delhi and between Raipur and Bastar. More worrying are the qualifying criteria that only large private sector networks like corporate hospitals can meet. Small but excellent not-for-profit hospitals like the Shahid hospital in Dalli Raja in Durg or the Jan Swasthya Sahayog at Giniari in Bilaspur will both be disqualified. What needs to be done Knee-jerk solutions and unintelligent tinkering have had a disastrous effect on the health sector in India. The government needs to look at health system development and put in place requisite conditions, such as an institutional capacity to control provider behaviour through well laid down national protocols and standard operating procedures, penalties and incentive structures. It should explore cost-effective options such as the intensive use of technology that enables electronic transmission of samples for diagnosis at centralised laboratories, pricing of services, develop IT systems to closely monitor not quantitative but qualitative outcomes as well, put in place grievance redress systems, tightening and insulating the enforcement systems at all levels from political pressures to make individuals from the ANM to the specialist, the ward boy to the laboratory technician public or private accountable to outcomes and patients, before opening up partnerships with the private sector on such a large scale. What needs to be done is known, but sadly how to do it is not. Governments, at the Centre and in the States, need to allow people with field experience and practical knowledge of the health system to contribute their expertise. What is also needed today more than ever is the need to listen to the ground as patients, women in villages, front line workers, the hapless doctor in the PHC, all have a different story to tell. We cannot afford any more blundering! (K. Sujatha Rao if former Secretary, Ministry of Health and Family Welfare, Government of India) Unless the government regulates the growth of the private sector and makes it accountable, the worn-down public health infrastructure cannot be revitalised Quash the ban, screen the film
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The delay in overturning the unjustifiable ban on Kamal Haasans Vishwaroopam is beginning to appear every bit as unjustifiable. It is difficult to fathom the rationale behind the Madras High Court deferring its decision on the films screening. Earlier, the court had ruled the film cannot be shown in Tamil Nadu until January 28, by which time the judge hearing the case would see it for himself. Now that the special screening has been held, what basis can there possibly be for deferring the decision once again and asking Kamal Haasan to negotiate the matter and sort the issue out amicably? Courts exist principally to dispense justice, not to hand out advice which, in this case, seems entirely gratuitous. Of course, there have been occasions when the judiciary has adopted a pragmatic, even reconciliatory, approach, one that attempts to find a common ground between adversarial parties; the gulf between formalism and actual judicial practice is a little wider than most people assume. But in this case, the court has not even attempted to resolve the dispute. It has simply thrown the ball back at Kamal Haasan, asking him to find a way out of a mess that was not his making. In doing so, it has risked the unfortunate perception that it is reluctant to take a hard and forthright decision based on law. There should have been no place for such temporising given the clear judicial precedents in such cases. It was only two years ago that the Supreme Court set aside the two-month ban on the Hindi film Aarakshan on the ground that States cannot proscribe films that have been cleared by the Central Board of Film Certification on the mere apprehension that screening them may cause a law and order problem. As we pointed out recently in this space (Responsibility To Protect, January 25, 2013), the landmark case that set the tone for such judgments was S. Rangarajan v/s P. Jagajivan Ram , where the Supreme Court held that freedom of expression cannot be suppressed on account of threat of demonstrations and processions and threat of violence. It is true there have been regrettable aberrations to a judicial approach that has strongly refused to cower before blackmail and intimidation. Only recently, the Supreme Court dismissed a petition challenging the Tamil Nadu governments ban on the release of the film DAM 999 . The ban on Vishwaroopammust be quashed and the police directed to provide adequate protection to theatres and moviegoers. While it is the right of the fringe Muslim groups who are offended, seemingly or otherwise, to protest against the film, any demonstration should be staged only peacefully. Anyone who threatens or takes recourse to violence deserves to be dealt with strictly and punitively. Stop subsidising the rich There is stubborn inflation, high interest rates and low growth keeping Indias SDI/HDI low. Then why are we avoiding the obvious and simple solution? We are going through a prolonged period of high inflation that seems to have no real solution, forcing interest rates to be kept high and affecting GDP growth. Some economists are recommending interest cuts to spur growth, but the Reserve Bank of India seems firm on keeping interest rates at the current high levels until fiscal deficit is brought under control seen as the reason for high inflation.

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While several positive measures are being taken to rein in the fiscal deficit, at the cost of impacting the a am aadmi , by way of a reduced gas cylinder subsidy, decontrol of diesel prices and a possible increase in fertilizer prices, or by trying to save through improvements in the Public Distribution System and direct cash transfers, we may not get to where we should in terms of reining in the fiscal deficit. The prices of natural resources and energy have risen steeply; the prices of manufactured goods too have risen steeply on the back of very high input costs. Our export competitiveness in most manufactured items seems to be suffering consequent to high input costs and despite a much weakened rupee. High interest rates are just one of the reasons. The rich are left out Therefore, we need to look beyond conventional ways of reducing fiscal deficit to rein in the huge deficit without making compromises on accelerated infrastructure improvements, and through it signal interest rate reduction and growth to improve our inclusiveness in growth. All along, we have been focusing on reducing the subsidy outflow to the weaker sections, without looking at reducing the subsidies enjoyed by the very rich. Often we believe that giving subsidies to the very rich by way of near free resources will result in cheaper manufactured products or offered services. This is completely untrue. In fact, those who get these resources are the ones who are selling their manufactured products much higher than international prices by getting themselves several policies put in place to protect their pricing power While iron ore sells at Rs.6,000 plus per ton in the international market, those with captive mines are able to extract it at less than Rs.1,000 per ton. Similarly, coal costs less than 25 per cent of domestic prices to those who have captive mines and at a much lower percentage when compared to international prices. The same is the case with other resources like bauxite, limestone, river sand and granite. Resources are being made available at less than 15 per cent of international costs by the States and the Centre. The people of India, to whom these resources belong, are forced to give them away near free at these cut rates by elected rulers, and they do not get the benefits of the difference between the market price of the manufactured product and the giveaway price of the resource. These virtual freebies to the rich are far in excess of Central and State deficits put together. The time has come for those who are elected to represent and protect peoples interests to start market pricing resources that are now being away almost free to the very rich. This would solve all our fiscal side issues at one go and get us to double digit growth rate in quick time. This would go a long way in improving the quality of life of our people substantially. It would also help us get to interest rates on a par with the developed world. (Manikam Ramaswami is the CMD of Loyal Textiles.)
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The time has come to start charging industry the right prices for resources that it gets virtually free Living together, separately I recently came across some fascinating news reports, dating from the year 1914, on the then growing demand for a separate state for Telugu speakers. In towns such as Guntur, Nellore and Vijayawada (known at the time as Bezwada), many meetings were held, asking for a separation of Telugu-speaking districts from Madras Presidency, with areas from the Nizams Dominions being added on later when conditions permitted. Tamils on Telugus The Tamil intelligentsia did not take kindly to this movement for an Andhra desa. Thus, in its issue of 6th June 1914,Swadesamitran , a widely circulated newspaper published out of Madras, wrote disparagingly of a conference in Guntur which claimed that Tamil domination blocked the progress of the Andhras. The Andhras, it was argued here, needed to break free of the Tamils to realise their hopes and ambitions. Swadesamitran said it could not understand the rationale of this argument. If Tamil ians are forward in education, etc., their company can only infuse a spirit of emulation in the minds of the Andhras. How can it impede the progress of the latter? The Andhras are not a set of uncivilised barbarians. They are an intelligent community with an ancient civilisation and the example of the Tamilians is bound to create in them new desires and aspirations. This is exactly what is happening. The present feeling among the Andhras that they have not been progressing much, and their demand for a separate province and equal privileges with the Tamilians indicate only this new desire and aspiration. We are at a loss to understand the meaning of their demand that they should be separated from the Tamilians. Is it that they do not want the Tamilians to step into their portion of the country? The patriotic leaders of the country are striving their best to do away with the distinction of caste and creed in India, which prevents the union of the people and impedes the progress. It is therefore regrettable that the Andhras should try to separate from others and form an independent community. Despite Tamil scepticism, the movement for a separate state of Telugu speakers persisted. Through the 1920s and 1930s, Congress leaders from the Andhra districts raised the demand at meetings of the party. Within the Congress, these Andhrawallahs had one strong ally Mahatma Gandhi, who early on, recognised the importance of linguistic states and several strong opponents, such as Jawaharlal Nehru and Vallabhbhai Patel, who worried that such demands would weaken the unity of the nation-in-the-making. Already, by the 1930s, Muslim intellectuals had begun moving away from the Congress, finding refuge instead in a newly revived Muslim League, now headed by the brilliant Muhammad Ali Jinnah. Renewed demand for separate state The demand for a separate Muslim state gathered pace, and eventually resulted in the creation of Pakistan. However, once India gained its independence, the Andhra speakers renewed their demand for the reconfiguration of provincial boundaries to create compact
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units whose populations spoke the same language. But Nehru and Patel were worried that (as with the Muslim League and Pakistan) separate provinces could become the launching pad for separate nations. Meanwhile Gandhi died, removing from the scene the most influential non-Andhra supporter of Andhra Pradesh. The Congress high command now thought that the demand would slowly ebb away. Instead, it intensified, with protest meetings being held all across the Madras Presidency. In October 1952, a veteran Congressman named Potti Sriramulu went on a fast demanding the immediate constitution of an Andhra State. The Chief Minister of Tamil Nadu, C. Rajagopalachari, and the Prime Minister, Jawaharlal Nehru, both ignored him. But Sriramulu was undeterred. He fasted, and fasted, dying during the night of 15/16 December after 56 days without food. His martyrdom provoked widespread public anger, with hartals and dharnas held across the Telugu country, and demonstrators attacking and burning government offices and railway stations. Unnerved by the scale of the protests, and the intensity of the anger, Nehru and Rajaji capitulated. An Andhra State was formed in 1953, provoking Kannada, Marathi, and Malayalam speakers all to demand separate states of their own. A States Reorganisation Commission was formed, which recommended the constitution of linguistic states. Unity and linguistic states I have long held that the creation of linguistic states has safeguarded the unity of India. Pakistan was divided, and Sri Lanka subject to a protracted civil war, because Bengali speakers in the one case and Tamil speakers in the other were refused the autonomy and dignity they wanted and deserved. On the other hand, the fact that in India citizens are free to educate and administer themselves in their own language has created a feeling of comfort and security. Linguistic states were crucial at one stage of Indian history, but have they now outlived their usefulness? In north Karnataka, in the inland districts of Andhra Pradesh and of Maharashtra, and in the hilly districts of northern Bengal in all these places there are vigorous movements calling for separation from the parent province. Are these movements legitimate, and will they persist? Or are they spurious and hence to be disregarded? Of all these struggles for separate states, the movement for Telangana is the oldest as well as the most intense. When Andhra Pradesh was constituted, the residents of these inland districts, formerly under the rule of the Nizam of Hyderabad, worried that they would be dominated by the more prosperous and educated parts of the State, which were along the coast, and previously part of the British-ruled Madras Presidency. The inlanders thus asked for special safeguards, and, when these were not granted, launched a major social movement in the year 1969, demanding a separate state of Telangana. Ever since, the demand has been persistently raised, with varying levels of intensity but it has never gone away.

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The leaders and opinion-makers of coastal Andhra do not wish to see their state broken in two. The rhetoric they use in opposing the Telangana movement is strikingly similar to that used by the Tamils, back in 1914 or thereabouts, when they asked the Andhras not to ask for a separate state of their own. Why break up a unity once achieved, they say. And if the residents of Telangana want to progress, does not living with the more advanced residents of coastal Andhra give them the necessary impetus to do so? Politics of Telangana It took 40 (and more) years for the Telugu speakers of Madras Presidency to make the Tamils see the sense of the demand for Andhra Pradesh. The Telangana movement is already 40 (and more) years old; and it still hasnt quite achieved what it aimed for. Before the General Elections of 2004, the Telangana Rashtra Samiti allied with the Congress, which informally promised it would concede the TRS main demand, while formally stating that it would create a States Reorganisation Commission if voted to power. The Congress alliance came to power in 2004, but a new SRC did not materialise. This led to a renewal of the protests, whereupon, in December 2009, the then Home Minister, P. Chidambaram, promised that the demand for Telangana would soon be granted. But he quickly backtracked. More recently, the Bharatiya Janata Party has said that it would create a Telangana state within 100 days of coming to power at the Centre. As with the Congress in 2004, this promise may be opportunistic rather than principled intended only to gain votes and seats for its alliance. My own view writing as both historian and citizen is that while linguistic states were necessary in the first, early, stages of Indian independence, it may now be time for a further reorganisation of states. The proponents of Telangana, Vidharbha, and Gorkhaland all have a robust case. Their regions are well defined in an ecological and cultural sense, and have historically been neglected by the more powerful or richer parts of the State. Likewise, Uttar Pradesh is far too large to be administered as a single unit. Breaking it up into three or four states would lead to more effective and focused governance. After 65 testing years of independence, there need no longer be any fear about the unity of India. The country is not about to Balkanise, nor is it about to become a dictatorship. The real problems in India today have to do with the quality of governance. Smaller states may be one way to address this problem. (Ramachandra Guhas books include India after Gandhi . He can be contacted at ramachandraguha@yahoo.in) Advocates of smaller states have a robust case. India should look for further reorganisation as it no longer needs to fear about the countrys unity

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The dilemma remains The monetary measures announced by the Reserve Bank of India in its third quarter review of monetary policy are entirely in line with market expectations. The policy repo rate and the Cash Reserve Ratio (CRR) have each been reduced by 0.25 percentage points to 7.75 per cent and 4 per cent respectively. The latter will inject approximately Rs.18,000 crore into the banking system and thus provide some succour to a market reeling under a liquidity shortage. The central bank, in its previous policy statements, had more or less committed itself to an interest rate reduction at the start of 2013, which incidentally is the first since the unexpectedly large 0.50 percentage points cut in April. However, neither the latest policy measures, nor the guidance in the review, give a clue as to whether a softer interest rate policy characterised by many more possibly larger reductions in the repo rate is in the offing. As before, the RBI is hedging its bets: on the expectation of inflation remaining range bound at current levels, there is space, albeit limited, for monetary policy to place greater emphasis on growth, it says. The RBIs reluctance to come out with a clearer projection of monetary policy is understandable and is best understood in the light of the two significant macroeconomic trends relating to growth and inflation. The RBI has revised its baseline projection of GDP growth for the current year to 5.5 per cent from 5.8 in October, bringing it in line with official statistics. Headline inflation measured by the WPI index has been moderating recently. A sustained reduction in inflation pressure is contingent upon alleviation of supply constraints and progress on fiscal consolidation. However, taking into account the several positive developments on the inflation front, notably the sustained fall in core inflation, the RBI has revised the inflation projection for March 2013 to 6.8 per cent from 7.5 per cent, set out in the second quarter policy review. Among the several risk factors impinging on macroeconomic management, the widening of the current account deficit to historically high levels in the context of a large fiscal deficit and slowing growth exposes the economy to the dangers of the twin deficits. Global risks remain elevated. A sustained revival in investment is absolutely necessary for stimulating growth and depends on a number of factors such as bridging the infrastructure gaps and better governance. Monetary policys traditional dilemma of supporting growth versus countering inflation can perhaps never be fully reconciled but the compact and lucid third quarter review has done a very good job of articulating an inherently complex stance.

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