Access to Justice in India’s Lower Courts

District Court, Raipur

District Court, Raipur, India

An important article by Jay Krishnan and his co-authors about the challenges litigants face in lower courts in India will appear in  the next issue of the Harvard Human Rights Journal.   Funded by the Ford Foundation, the research for the study was conducted over a 3 year period by dozens of researchers who interviewed hundreds of people in three states in India, including judges, lawyers, and litigants.   This is a welcome study, because (among other things) much of the prior academic work has focused on higher courts in India.  Most people are aware that cases can take a long time to be resolved in India courts (sometimes decades).  What most people do not know, however, is that the Supreme Court and most of the High Courts in India dispense justice relatively quickly.  In an empirical study of two years of Indian Supreme Court decisions, Ted Eisenberg and I have found that it takes the Indian Supreme Court only 2-4 years issue a decision on criminal cases.

It is typically the lower courts that are the ones that are responsible for the inordinate delays.   Jay Krishnan’s study confirms this impression and also adds a lot more detail to the picture of Indian lower courts.   Delays are often caused by lawyers who seek continuances and the system of judge-appointment that requires judges to be transferred every 3-4 years.  Other problems include lack of adequate infrastructure for judges, lack of basic facilities such as toilets and safe drinking water for litigants, confusion among lawyers about which courts have jurisdiction over various matters, judges with large case loads, and too many possibilities for interlocutory appeals.  Despite these problems, researchers found that people still had hope and optimism in the system.

The article also takes great effort to present the unique challenges faced by women litigants, lawyers, and judges.  The article notes that: “women-litigants and women-lawyers face . . .  the indignities of having to work in environments where basic human infrastructural needs are unmet.  Lack of available and clean washrooms, the absence of security to protect them from routine harassment and intimidation, the unavailability of safe transportation to bring them to-and-from the courts to their residences, not enough seating in (male-dominated) waiting areas, and the gender-based verbal prejudice they receive are just a handful of reprehensible conditions that require remedies.”

Women lawyers also face challenges.  According to the article, women lawyers “can be taunted and bullied by their male colleagues and literally shoved aside physically while walking in what is the daily chaotic court-atmosphere in which they work.”   A particularly egregious recent example is that of a young female lawyer who was suspended by a state bar association for stating in a post on Facebook that male lawyers call women “sugar candy” and “tell them you are so beautiful.”   This comes on the heels of a former Supreme Court Justice who was accused by sexually harrassing an intern.   In part because of the national attention given to cases of sexual violence and the ensuing law reform, there is a growing recognition among women in India that this kind of behavior should not be tolerated and exposed.

Human Rights Concerns Missed on Both Sides of the India-U.S. fallout over the Treatment of an Indian diplomat

ImageImage   The Indian government is outraged because a mid-level Indian diplomat was strip-searched before she was sent to jail on charges of paying her domestic worker below minimum wages ($3 dollars an hour) and lying about it in official documents to the U.S. government.   The prosecutor in the case, Preet Bharara, points out that she was treated no differently than any other person who is charged with a felony and sent to jail.

According to Preet Bharara, prison officials need to ensure she isn’t carrying something that could be used as a weapon or anything else prohibited in the prison.  For so many women in prison, this type of searching (including full cavity searches) are a regular and humiliating occurrence in the United States (and many other countries).   Each time a prisoner leaves the prison for a court appearance, for example, she is strip-searched when she returns.  Women in prison have told me that this practice is an affront to their dignity and sense of humanity.  These searches are often unnecessary as was likely in the case of the Indian diplomat.  However, just last year, the U.S. Supreme Court held in Florence v. Board of Chosen Freeholders that even someone charged for a minor offense could be strip-searched without reasonable suspicion if she was entering a prison.  Many prison rights advocates have long objected to this policy.

It is understandable that the Indian government is protesting this inhumane treatment, but Preet Bharara rightly asks “why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse.”

Perhaps it is because many middle-class and upper class Indians employ domestic workers whose daily wages are often less than the price of Dominoes pizza delivery in Delhi.  Government officials, business leaders, and even upper middle class Indians are not used to doing dishes, cleaning their houses, driving their cars, or changing their children’s diapers.   In addition to their low wages, these domestic workers often sleep on kitchen floors and work  more than 12 hours a day.  In my experience of living in India, many of these workers are treated like robots and are so deprived of humanity that they do not even look people in the eye.   Given the lack of enforced laws and regulations, the immense poverty, and inequality, there is no end in sight to this system of servitude.

This is not the first time an Indian diplomat in the U.S. has been charged with abusing a domestic worker–the Indian consul general in New York was charged with treating his maid as a “slave.”  The maid was forced to work  long hours for $300 dollars a month.  To discourage this form of labor trafficking, the Indian government needs to pay its diplomats more money if they want to allow them to replicate in the United States the Indian life-style to which they are accustomed and at the same time comply with American labor regulations.  Of course, getting your hands dirty with daily domestic chores is also an option.

This incident highlights the human rights problems with the treatment of domestic workers in India as well as the treatment of women in prison in the United States.  While the Indian government correctly objects to the unnecessary strip-search, it should also recognize that the status and treatment of domestic workers in India is unacceptable.  The United States, on the other hand, is correct not tolerate human rights abuses in the United States even if it would be permissible in the home country of the diplomat.  Yet this incident should give American officials cause to question the blanket policy of strip searching people who have not been convicted of any crime.   Both governments appear to be missing these human rights concerns in their own countries.

Shadow Reports from the United States to the UN Human Rights Committee

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Many organizations today released “shadow” reports (also known as “NGO Alternative Reports”) that they  submitted to the UN Human Rights Committee.  This Committee is composed of independent experts who are tasked with the responsibility of monitoring compliance with the International Covenant for Civil and Political Rights (ICCPR).   Representatives from the United States government will appear before this Committee in Geneva in mid-October of this year.    The United States submitted a report to the Committee describing its compliance with the ICCPR, which it ratified in 1992.    A number of “shadow” reports submitted to the Committee relate to international women’s rights in the United States.   Legal Momentum, the University of Miami Human Rights Clinics, and other groups filed a report called “Domestic Violence, Gun Violence, and ‘Stand Your Ground’ Laws.”  The Center for Reproductive Rights submitted a report called “Fulfilling Unmet Promises: Securing and Protecting Reproductive Rights and Equality in the United States.”  CLAIM, the ACLU, and the University of Chicago’s International HumanRights Clinic also filed a report on the practice of shackling pregnant women deprived of their liberty in the United States.

The US Network for Human Rights, which has been coordinating efforts on shadow reporting for the ICCPR, has called Day of Action today to draw attention to the United States’ obligations under the ICCPR (among other things).

U.S. Supreme Court Rules Against Anti-Prostitution Pledge

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The U.S. Supreme Court released an opinion today in Agency for International Development v. Alliance for Open Society International finding that a U.S. federal law requiring any group that accepted federal funding for combatting HIV/AIDS (and certain other diseases) to adopt a policy prohibiting prostitution.  The Court (in a 6-2 opinion) found that the law violates the First Amendment (freedom of speech) of the U.S. Constitution.  A preliminary legal analysis of the opinion can be found on SCOTUSblog.  Amicus briefs to the U.S. Supreme Court by the UNAIDS Secretariat and  Deans and professors of public health organizations argued that engaging with sex workers is essential to reducing HIV infection rates.  Durbar (DMSC), a sex worker union in Kolkata, India grew out of efforts by medical professionals to reduce the transmission of HIV.  The experience of this organization in addressing HIV/AIDs highlights the contradictions between taking an anti-prostitution stance and reducing HIV transmission rates.  

Justiciability of the Right to Education

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During this session of the UN Human Rights Council (May 27 to June 14), Kishore Singh, the UN Special Rapporteur for Right to Education, presented a report that describes the ways in which the right to education (which is characterized as an “economic, social, and cultural right” in UN treaties) is  justiciable.  In the report, he also encourages States to promote access to courts for people who claim violations of the right to education.

Many member-states supported the recommendations in his report during the Human Rights Council meeting as you can see from this video.  Portugal even introduced a resolution calling for States to create mechanisms to make education rights more justifiable.

The United States representative, however, expressed concern in regard to several aspects of the report.  The representative, for example, said “while quality of education is the highest of ideals and something we strive for in our schools daily, we do not agree with the phrasing in this report implying that existing rights include quality education.”  This statement comes at a time when we are seeing a crises in our public education system across the nation.  We essentially have a dual public school system— some schools provide quality education while others do not.  Several cities are closing schools (in many cases in minority communities).  Chicago’s Board of Education is closing over 10% of its public schools effective at the end of this school year.  Additionally, the United States representative disagreed with Mr. Singh’s interpretation of a 2003 New York Court of Appeals decision that teacher quality is justiciable.

I had an opportunity to participate in a side-event during this Human Rights Council session on promoting justiciability of the right to education by using indicators in litigation.

Sex selection abortions in India and the United States

In an article in Slate, “It’s a Trick“, I described the great care taken by the makers of “It’s A Girl,” a “documentary” on sex selection abortion in India and China to disguise connections to anti-abortion groups in the United States and to use the language of women’s equality movements.  Many feminist groups across the country and on university campuses have been screening this movie.  When I was asked to moderate a discussion after one such screening, I became curious about the financing sources for the film and the background of its director.   Through searching the ownership of several domain names, I found that Evan Davis, the director of the film worked for Harvest Media Ministries, a media company that makes anti-abortion and other videos for Church groups.  When I asked him about his financing sources, he refused to disclose them, but did admit that some donors were people he met during his tenure at Harvest Media Ministries.

The “documentary” paints a partial picture of the complexities of the situation in India.  Without  knowledge of the realities in India, some people may have been misled by the slanted portrayal to support the film and donate to charities it promotes.  The only scenario on abortion presented in the film is one where those who believe in autonomy rights of women and those who believe in the right of the fetus agree – a woman should not be forced to have an abortion because her fetus is female (or for any other reason).  To this end, the movie extensively covers Mitu Khurana, a woman who left her husband because he physically abused after she refused to abort her female fetuses.

The film, however, fails to depict the most common cases in India –- women who make the choice to abort a female fetus without physical violence or overt coercion.  Poor women in villages have told me that they do not want to bring girls into the world and do not want them to go through what they have faced.   Some might argue that these women cannot make this choice “freely” in the context of widespread “son preference.”

The other type of situation that the film fails to depict is one where a woman would face violence from her husband and in-laws if she didn’t abort the fetus, but gave birth to a girl instead.  Mitu Khurana’s family is depicted as middle class and she escaped from her husband with the financial support of her parents.  Countless poor women do not have that luxury.  Indeed, they are in a “double-bind” — they face violence at home if they do not have an abortion, and face jail if the do.

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UN Special Rapporteur, Rashida Manjoo, will moderate a Panel Discussion & Deliver a Keynote Address at the University of Chicago Law School

You are invited to attend a panel discussion on Tuesday, May 14 from 12:15 p.m. to 2.30 p.m. in Chicago on the occasion of the public launch of a report, Women in Prison in Argentina: Causes, Conditions, and Consequences, written by Cornell Law School’s Avon Global Center for Women & Justice and International Human Rights Clinic, the Defensoría General de la Nación Argentina (Public Defender), and the University of Chicago International Human Rights Clinic.  The Report relies on empirical data from a survey developed by the authors of the Report and randomly administered to nearly 30% of all women prisoners in federal prisons in Argentina.

There has been an increase in the rate of women’s imprisonment in many countries around the world. Yet many countries fail to adequately address the unique issues raised when women are deprived of their liberty. The panelists will discuss the causes of the increase in rates of imprisonment, including the global war on drugs and drug use. They will also address the conditions of women’s imprisonment, such as lack of gender-specific healthcare, shackling during childbirth, and sexual violence in prisons. The increase in women’s imprisonment impacts children and families. The increase in women’s imprisonment impacts children and families.  To address this, some countries such as Argentina have prisons where children up to 4 years old can live with their mothers.  What are the benefits and challenges of this? What are the alternatives to this?  The panel will discuss issues relating to women’s imprisonment from an international and comparative perspective.  What can countries learn from each other’s practices?  To what extent are the Bangkok Rules recently adopted by the UN being implemented in women’s prisons around the world? The findings and recommendations from Report on Argentina will also be discussed.    

Moderator: Rashida Manjoo, UN Special Rapporteur on violence against women, its causes and consequences

Speakers:

• Mikhail Golichenko, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

• Andrea Huber, Policy Director, Penal Reform International (London)

• Sital Kalantry, Clinical Professor of Law and Director of the International Human Rights Clinic, University of Chicago Law School

• Silvia Martinez, Director of the Prison Commission of the Public Defender’s Office in Argentina

• Gail Smith, Founder and Senior Policy Director, Chicago Legal Advocacy for Incarcerated Mothers.

Student speakers: Jullia Park, J.D. Candidate, 2014, University of Chicago Law School and Jamie Stinson, J.D. Candidate 2014, Cornell Law School

The venue is Room III at the University of Chicago Law School, 1111 East 60th Street, Chicago.  Open to the public and lunch will be provided but seats are limited.    

For special assistance or needs, please contact Aican Nguyen at 773.702.0184Image

On the Job! Human Rights Clinical Fellow at the University of Chicago Law School

logo   The University of Chicago Law School is seeking qualified applicants for a full-time position training and supervising law students as a Fellow, appointed with the rank of Lecturer, in the Law School’s International Human Rights (IHR) Clinic. The position will begin June 1, 2013, or later. The appointment is for one year, but reappointment for a second term is also possible. The IHR Clinic works for the promotion of social and economic justice globally, including in the United States. The IHR Clinic uses international human rights laws and norms as well as other substantive law and strategies to draw attention to human rights violations, develop practical solutions to those problems using interdisciplinary methodologies, and promote accountability on the part of state and non-state actors. IHR Clinic projects include litigation in domestic, foreign, and international tribunals, as well as non-litigation projects, such as documenting violations, legislative reform, drafting reports, and training manuals.

Reporting to the Director of the IHR Clinic, the successful candidate will participate in all aspects of the IHR Clinic and job responsibilities will include supervising student projects including providing feedback on written work, participating in team meetings, working with the Director to develop teaching materials and teaching in the clinic, developing and selecting clients, managing aspects of a blog and website relating to international law and the IHR Clinic, organizing and coordinating relevant events, lectures and other clinic activities, and may include international travel.

Candidates must have a J.D. and at least two to four years of work experience as a practicing lawyer, preferably including experience with international human rights litigation or advocacy. Must be a member in good standing of the bar of Illinois or another state. Prior teaching experience is highly desirable, but not required. Fluency in English is required, and another language, preferably Spanish, is strongly desired. Demonstrated ability to work with technology, including posting to a blog and website.

Each candidate should submit a cover letter, resume or curriculum vita, a certified law school transcript, a list of references, and a legal writing sample (not edited by anyone else). Candidates are required to apply online and upload all application material at the University of Chicago Academic Career Opportunities website: https://academiccareers.uchicago.edu/applicants/Central?quickFind=52797 .

To ensure full consideration of your application, all application materials should be uploaded to the referenced website by May 21, 2013. Screening will continue until the position is filled or until the application deadline of July 31, 2013. The University of Chicago is an Affirmative Action/Equal Opportunity Employer.

India’s Supreme Court Ruling: A Defeat for the Pharmaceutical Industry?

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             The global pharmaceutical industry is parading its usual arguments in response to the Indian Supreme Court’s recent judgment rejecting Novartis’ patent over a new version of a  drug used to treat leukemia.   A spokesperson for an industry trade group believes that the decision is “another example of . . . a deteriorating innovation environment in India.”  A Novartis spokesman adds that the judgment “is a setback for patients that will hinder medical progress for diseases.”
             The Indian Supreme Court decision which can be found here rejected Novartis attempt to extend patent protection for the drug by tweaking certain aspects of it (known as “ever-greening”).  Until 2005, India only allowed companies to patent the process by which a drug was created, but not the actual product.  This resulted in the development of a robust indigenous pharmaceutical industry.  Succumbing to international pressure, India signed the WTO TRIPs Agreement, which required it to allow companies to patent the product itself.  When it adopted product patents, the Indian Parliament added a provision to the Indian Patent Act (section 3(d)) prohibiting patents on new forms of medicine unless it increased efficacy of the drug.   Amy Kapczynski pointed out in an article published several years ago that  the motive of this provision was to prevent “ever-greening” and the language was borrowed directly from a EU drug regulatory directive.

Protection (from rape) or Freedom (to have sex)?

The debate in India surrounding  reforms to the sexual violence laws are a reflection of the changing mores in Indian society.   With economic liberalization in 1991, a strong middle class with access to new goods, movies, and ideas has emerged.   As a result of the mass protests in the aftermath of the brutal gang rape and death of Jyoti Singh Pandey, the President signed an Ordinance reforming the sexual violence laws on February 3, 2013. (The Ordinance took some provisions from an amendment to the Indian penal code that was pending in Parliament prior to the gang rape and adopted some provisions suggested by the Verma Committee report, but rejected other important provisions from that committee.  The Verma Committee was formed by the government after international and national attention focused on the issue of gender-based violence).  Article 123 of the Indian Constitution permits the President to put into place laws that have the weight of an act of Parliament when Parliament is in recess.  But the Ordinance expires on April 4 unless Parliament adopts it or an amended version of it.  The real deadline they are racing against is March 22 because Parliament is in recess again after that.

Key areas of disagreement such as the marital rape exemption and the availability of the death penalty in some cases of rape remain.  Yesterday The New York Times India blog highlighted one issue of debate — whether the age of consent for purposes of the statutory rape provision should be 18 or 16. The Ordinance placed the age at 18 but prior to that it was 16. The new bill that is being considered seems to have lowered the age of consent to 16.

It is some prominent feminist lawyers that have argued in favor of lowering the age of consent.  Indira Jaising points out that “[i]t is quite normal for people to have sexual relations at 16 or 17 years of age. . . . How can we make illegal what is normal?”  Additionally, Flavia Agnes pointed out in an article that appeared in Asian Age on December 23, 2012 that “one-third of all rape cases are filed by parents against boys when their daughter exercises her sexual choice and elopes.”  Thus, if the age of consent was increased, it would give parents more opportunities to mis-use the law. Continue reading