PART II: INDIA’S POLICY CHANGES TO CITIZENSHIP AND ITS IMPLICATIONS

Closely related to these developments (as mentioned in Part I) was the 1951 National Register of Citizen (NRC) list which was an effort to have a permanent record of the residents in Assam based on the data of the 1951 Census (the first census conducted in Independent India). Hence, when the Assam agitation started the initial demand of the movement was to expel foreigner as per the 1951 NRC. However, as cited above, after years of deliberation between the protestors and the government 25 March 1971 was decided to be the cut-off date. Over the years there were many demands for expelling the ‘illegal migrants’ from Assam. This led to a tripartite agreement between AASU (The Assam student union which was most active in the movement), the state government and the central to update the 1951 NRC as per the 1985 Assam Accord’s cut-off date in 2005. In December 2015 the NRC updating process received affirmation from the Apex Court of the country in response to a petition.

While the NRC process has specifically affected the Bengali Muslims in Assam in general, people belonging to other marginalised classes have also been affected. Among other things, the acute illiteracy and deprived conditions make it extremely challenging for the marginalised to produce any of the specified documents that would facilitate proving their ‘authentic’ Assamese identity. It was equally difficult for many to appear for the NRC-related hearings as summons were issued for far-off places in quite short notices.

Furthermore, the NRC process has been gender insensitive. The final list revealed that around 2,000 transgenders were excluded from the NRC list. Having been abandoned by their families, many were unable to provide proof that they belong to families which have been living in Assam before 25 March 1971, or because the requisite application for the NRC process contained only ‘male’ and ‘female’ gender categories forcing them to choose either of the two. Many married women have also been excluded from the list because of the failure to establish blood links with their paternal families through relevant documents.

As of 31 August 2019 with the publication of the final NRC in Assam, the future of more than 1.9 million people in Assam have become uncertain. This lack of clarity on their nationality raises concerns of possible statelessness. While the excluded people wait anxiously for a chance to appeal against the decision and find their name in the NRC list, there is no clarity on the appeal process either.

The ruling right-wing BJP (Bhartiya Janata Party) government at the Centre has also introduced the Citizenship Amendment Act, 2019. As per this amendment, migrants who entered India ‘illegally’ on/before 31 December 2014 from Afghanistan, Bangladesh and Pakistan are eligible for citizenship. However, only ‘illegal’ migrants belonging to Hindu, Sikh, Buddhist, Jain, Parsi, or Christian community are eligible under this amendment, which has been principally introduced with an intention to exclude people of the Islamic faith.

Further, with the proposal to introduce the NRC process nationwide it can be argued that it has the proclivity to create one of the world’s largest displacement and statelessness in the modern times.  Probable consequences of exclusion from the NRC could be, inter alia, indefinite detention, deportation, denial of legal status, or even political, social and economic rights.

Internationally, the failure of the refugee regime to widen the definition of ‘refugee’ makes the picture even bleaker; it has become increasingly difficult for refugees to prove persecution within the existing definition, adding more challenges to their already daunting lives. Thus, while a distinction between ‘refugees’ and ‘migrants’ is essential to avoid any blurring of legal categories which might have detrimental effect to their specific rights, it is also important to counter the definitional constraint which states use to justify the discriminatory practices of denying refugee status or rendering individuals/groups stateless. Relying solely on political motives to assert that some refugees deserve asylum more than others is parochial. It is essential, therefore, to challenge the existing norms and practices and to advocate for increased state responsibility and a strengthened rights framework.

 

*The views and opinions expressed in this article are personal and have no institutional affiliation. 

PART I: INDIA’S POLICY CHANGES TO CITIZENSHIP AND ITS IMPLICATIONS

In the present climate of xenophobic impulses and right-wing nationalism, coupled with escalating allegations of terrorism and state security, establishing host state’s obligations to protect refugees is a painstaking challenge. It is generally claimed that non-refoulement (ban on forcing refugees to return to countries where they are likely to face persecution) has achieved the status of customary international law. Nevertheless, states often find justifications to defy its implementation. Refugees are commonly portrayed as a threat to the security of the host country, and this justification is suitably invoked to close their borders or deporting refugees to their country of origin. Further, there is a growing tendency to label them as ‘economic migrants’/‘illegal immigrants’. These restrictive policies have facilitated the erosion of non-refoulement in a functional sense.

There have been consistent efforts by states at implementing non-entrée policies to stop refugees (particularly those who do not possess political and ideological value) from reaching their international border. There are differential policies for different sects of people, which conveniently facilitate states in choosing the kind of others they prefer to welcome. These policies have taken the shape of a civilizing mission where the central idea is to ‘exclude’ the ‘un-civilized’ on the grounds of the state’s interest. It is pursued with the goal of securing electoral gains, demonstrating cultural superiority or establishing brute majoritarianism.

The rampant oppressive practice of the Indian government towards refugees is a textbook instance. India not being a signatory to the Refugee Convention and, in the absence of any defined statutory framework on refugees, has only ad-hoc mechanisms in place for refugees. As per the Foreigners Act, 1946, every foreigner, unless exempted, should be in possession of a valid passport or visa to enter India. Hence, if a refugee contravenes these provisions, she is likely to be indicted just like any other foreigner. Inconsistencies and arbitrariness rule in the absence of any clearly defined statutory standards. Thus, while we witness a generous behaviour being meted out to some categories of refugees, others are alleged to be ‘economic migrants’/‘illegal migrants’ and consequently detained, penalized and deported.

The recently-conducted process in Assam (a state in northeastern India) to update the National Register of Citizens (NRC) is a manifestation of India’s intensifying tyrannical inclinations. Historically, in the nineteenth and twentieth centuries, due to the development of railways, tea, and coal and oil industries, colonial Assam witnessed heavy migration from other provinces of British India. The colonial authorities also encouraged educated Bengalis to take up jobs as teachers and other such professions in Assam. These movements resulted in a change in the demographic profile of Assam.

Further, the Partition of India in 1947 and ensuing communal riots on the subcontinent gave rise to the influx of refugees from East Pakistan (present-day Bangladesh) in Assam chiefly due to its geographical proximity. Similarly, in 1971, during the Bangladesh Liberation War, Assam witnessed heavy migration from Bangladesh. Ever since, Assam has been experiencing a continuous migration flow from Bangladesh for various reasons, including climate change. Serious objections against this migration trend have been mounting in the ‘indigenous’ Assamese community. Allegations of depleting natural resources, increasing violence, marginalization and threat to their ‘Assamese identity’ began to amplify in the late ’70s, which gradually led to the Assam Agitation (1979-1985). The Movement, many claims, was triggered after the death of Hiralal Patwari, sitting Member of Parliament from Lok Sabha (House of the People) representing the Mangaldai (Assam) Constituency, which necessitated holding of by-elections. During the process of the election an abrupt and dramatic increase was witnessed in the number of registered voters and it was alleged that a large number of these voters were illegal settlers from Bangladesh.

To many Assamese it appeared as if the Bengali Hindus and Bengali Muslims together were now in a position to undermine Assamese rule. It was feared that the census would show a sharp decline in the number of Assamese speakers as Bengalis who had previously declared their language Assamese would now officially revert to Bengali. (Weiner 1983)

On the other hand, it was claimed that the movement involved careful planning by a few in order to retain the Assamese Hindu majority in the state assembly election, so that other communities, specially Muslims, could not reduce the Assamese Hindus to minority in the elections.

The movement further witnessed the horrific Nelli Massacre of 1983 which allegedly claimed the lives of almost 3000 Muslims in Assam. Two years after the massacre in 1985, the Assam Accord was signed which fixed 24 March 1971 as the cut-off date (as the Bangladesh Liberation War began on 25 March 1971). The Accord envisaged that all foreign nationals who entered Assam ‘illegally’ on or after 25th March 1971 were to be detected, their names deleted from the electoral rolls and subsequently deported under the Foreigners Act, 1946. Section 2(1)(b) of the Citizenship Act of 1955 defines an “illegal migrant” as a foreigner who entered India, (a) without a valid passport or prescribed travel documents or, (b) with a valid passport or other prescribed travel documents but remained in India beyond the permitted period of time.

Introducing Sumedha Choudhury

IMG20200614201424~4It is our great pleasure to introduce our new IntLawGrrls contributor Sumedha Choudhury. After completing her undergraduate from National Law University and Judicial Academy, Assam, India with a specialization in International Law and Human Rights, Sumedha Choudhury pursued an LLM in International Law from South Asian University, New Delhi, India. After her LLM she joined UNHCR, India as an Assistant Research Coordinator (Intern) for seven months, June 2019 to December 2019. Since February 2020, she is engaged with UNHCR as an RSD (Refugee Status Determination) Assistant. Sumedha has previously interned with Asian African Legal Consultative Organization (AALCO) and Indian Society of International Law (ISIL) as a research assistant. Having born and raised in the Northeastern region of India, witnessing insurgency and the protracted refugee situation, her decision to engage with the nature of forced displacement was a conscious one. She plans to continue her efforts for the upliftment of asylum seekers and refugees.

Heartfelt welcome!

The COVID-19 tracking apps ecosystem unraveled: critical issues for global health- and the rule of law

This blog addresses technofixes and global health: This spring, populations worldwide have been asked to sign up to experimental and often intrusive apps to help ‘do their part’ in the struggle against Covid-19. In the wake of the demise of many Covid-19 tracking apps, critical questions must be asked about data governance, data capitalism, the rule of law and human rights in the making of these apps. Furthermore, attention must be given to gendered outcomes and costs – and how the law should reckon with them. So far, a critical feminist legal perspective has been mostly missing in the discussion of tracking apps. Taken as a mapping exercise that identifies a set of generalized issues, this blog can hopefully contribute to further such debate. 
In March and April 2020, an ecosystem of tracing apps suddenly emerged, presenting digital solutions as indispensable for winning the battle against Covid-19.  A few months later, the techno-optimism has subsided drastically, ranging from a perception that apps are problematic surveillance tools (RussiaBahrain and Kuwait) or ineffective (SingaporeFrance and Iceland) to the more spectacular fiascos, such as the now-withdrawn apps used in the UK  and Norway.
On April 16th, after about a month of R & D, the Norwegian government launched the Smittestopp app.  Prime Minister Erna Solberg stated that using the app was a civic duty and 11 days later, 1.5 million adults in Norway, of a population of 5,4 million, had downloaded it. After a barrage of criticism, the app was shelved June 15th. The app had gone from being essential for ‘getting our freedom back’ to being a ‘valuable’ tool for tracking population movements to be labelled by Amnesty International as  one of the world’s most dangerous for privacy. Using the rise and fall of the Norwegian Smittestopp app as an example, this blog points to explanations for why the Covid-19 app ecosystem is unravelling and implications for global health.
How was the rapid emergence of this ‘techno-fix’ ecosystem possible? 
Domestic conditions are important: The general panic and state-of-emergency-mindset of early March 2020 allowed for intrusive government action and combined with a high domestic trust in government and a national predilection for technofixes. However, there would have been no ecosystem unless international elite networks and powerful domestic stakeholders had worked together to make the tracing apps a transnational project.  In the Norwegian case, there is a direct link between the influential Science paper by Ferretti et al. (2020) and the work by lead author Professor Christopher Fraser at Oxford to the Smittestopp app. Fraser suggested the idea of an app to the Director of the Research Council of Norway, who recommended the app to the Director of the Norwegian Institute of Public Health. Simula, a government research lab with limited experience of producing apps, handling sensitive data management and researching epidemiology then drafted itself to develop and manage Smittestopp.
 The reasons for its demise are not alchemy
The official reasons for the death of Smittestopp concern privacy and data protection. The government and Simula also blame a sharp decline in the infection rate, making the realization of the app impossible. With technofixes, the problem is often that we speak of solutions in need of problems (and markets). This was not the case with Smittestopp, which never became the solution for anything. This was not an instance of a ‘bad fit’. Moreover, there is nothing particular about COVID-19 that ‘failed’ the app.
The reasons for failure are conventional, common and well-understood in global health. The making of Smittestopp was hasty and characterized by a lack of transparency and a concerted effort to avoid a tender process.  The technology never worked – combining GPS and Bluetooth, the app was criticized for power consumption and inadequate security. The elicitation of popular participation happened partly based on false, or at least, unclear premises. The government and Simula insisted that downloading the app was a civic duty and that refusing to do so was selfish. The intention to engage in mass data collection on population movements, which in practice turned out to be the main function of the app was not clearly communicated to the population. While Norway may be an unexpected candidate for these kinds of problems, none of this is unprecedented with respect to global health tech.
 What are the lessons for global health data governance?
Hypes around technofixes – and tracking apps in particular – are a familiar spectacle in global health.  So are their failures. However, the thorough politicization of Covid-19 responses makes the Covid-19 apps different.  On an unprecedented global scale, governments have been trading on trust and fear to make their populations download unfinished and experimental products.  As they are knocked over, one by one, the data hoarding legacy of these apps remains a reality despite their failure to ‘save lives’.
Yet, as COVID-19 will be with us for a long time, and will be followed by other pandemics, the global health quest for workable digital solutions must continue. This work becomes harder when trust has been abused.  The Global Health Community must be more critical to digital tracking and take data protection and privacy issues more seriously.
Finally, when domestic initiatives, for reasons relating to incompetence, poor planning, and bad luck failed, Big tech and the Google/Apple collaboration were left standing as the safe, responsible, and morally righteous alternative. This is a highly paradoxical outcome in a context where surveillance capitalism, including in global health, is deeply contested.
Originally posted

Children in Lockdown: Children’s Rights, Covid-19 and the Case of Norway

“The lost generation of the Covid-19 pandemic is not those at risk over 65, but our children and youth, particularly at present here in Larvik municipality. We communicate with children subjected to violence by siblings, threats, mothers who cry all day, children with mentally ill parents, parents with drug and substance abuse problems, parents in violent conflict with each other, parents under enormous psychological strain due to lay-offs and financial problems and children with parents subjecting them to physical and mental violence, neglect and sexual abuse…why should we be in a care home nursing old people when the children are screaming for our help?” (letter from 19 school health nurses to Larvik Municipality April 13, 2020, the authors translation)

Medically (while more scientific studies are necessary), COVID-19 largely seems to have little impact on children. However, children have been deeply affected by the lockdowns implemented to protect everyone else’s vulnerability. There is one issue which has so far received scant attention in the Covid-19 English-language constitutional law analysis, namely that of the ramifications of domestic lockdowns for children’s constitutional protections (but here). Using Norway as a case study, we identify a set of issues and propose how a critique could have been articulated.

The 1989 Convention on the Rights of the Child (CRC), article 3, lays down that ‘in all actions concerning children […] the best interests of the child shall be a primary consideration’. States are accordingly obliged to ensure the children’s necessary protection as well as to control the institutions responsible for the execution.

While relatively few countries have explicit constitutional protection guarantees for children, the almost universal ratification of the CRC has influenced states to transform some of their obligations into constitutional recognition and protection of children’s rights on a domestic level.

CRC is a binding part of Norwegian law and its influence is reflected in the 2014 amendments of the Norwegian Constitution of 1814. According to Article 104, Children have the right to respect for their human dignity and the right to be heard. Their best interest is deemed a ‘fundamental’ consideration. Moreover, children shall have the right to receive basic education and a guarantee by the government to safeguard their individual abilities and needs (Article 109).

However, even where there are specific constitutional protections for children, such as in Norway, we are concerned that the academic community and civil society have made insufficient efforts at addressing issues through a constitutional lens. This amounts to a doubly missed opportunity, in terms of taking children’s rights seriously and in terms of getting concerns about the impact of Covid-19 lockdowns on children taken seriously.

Norway: A Covid-19 ‘success story’

So far, Norway is a COVID-19 ‘success story.’ It closed schools, businesses and international travel in mid-March, and significantly restricted freedom of movement within the country. Despite being ‘unprepared’ for a (predicted) pandemic, the health sector has coped. By the first week of April – amidst concerns about the skewed impact on immigrant populations – the outbreak was declared to be ‘under control.’ The subsequent impact has been comparatively mild. By July 1st there were 8,887 confirmed cases, 251 deaths and a total of 338,860 individuals tested. While this forceful response had immediate and severe implications for the Norwegian economy, the impact is widely expected to be partly mediated through use of the country’s sovereign wealth fund.

In the domestic Norwegian context, legal scholars have asked questions about the rule of law and human rights for example with respect to the right to health information and minorities or tracing apps and data protection. But so far, there has been no discussion of the rule of law and children.

As almost everywhere else, children were required to acquiesce to a radical reorganization not only of their home situation, social life and daily routines, but also to their education, safety and security and access to healthcare in order to protect the adult population. From the start of the lockdown on March 12, there were concerns about the heavy burden carried by children, ranging from near-abandonment by local health services and schools to being left alone with abusive or drugged adults with no recourse to assistance or escape. As feared, the effects on vulnerable children and adolescents were disproportionate and serious. A government report from April 20 found that major actors had overreacted in focusing on infection prevention to the detriment of services for vulnerable children and adolescents.

Five reports from National coordination group for services to youth and children during Covid-19 forcefully criticize unwarranted use of home office, re-assignment for child protection staff and a drastic reduction of child welfare services. However, in these reports, there is no systematic reflection on risk, vulnerability and impact assessments with respect to children’s human rights and no mention of children’s constitutional rights at all. The Norwegian Children’s ombudsperson has been highly engaged, but with limited emphasis on constitutional rights. We must do better.

1. Right to health

The children’s right to health is enshrined in the Norwegian constitution as well as in Art 24 of the CRC. States are obliged to work for the full realization of this right and to ensure the provision of necessary medical assistance and health care to all children especially the development of primary health care.

The central Norwegian governmental infrastructure for children’s health and social services is based on municipalities’ legislation, such as the Act on Health and Social Care, the Education Act and the Act on Child Welfare Services. In case a child needs more specialized health or social services, state run facilities are responsible for fulfilling the child’s rights.

The lockdown entailed a reduction of capacity to carry out or even a halt of health care services for children because of health personnel being reassigned to other tasks in municipalities. Children in need of and with the right to treatment for their mental health problems had to wait longer for receive necessary health care. Health care services for children with the need and right to compound services ceased. According to Norwegian law, municipalities are obliged to provide certain health care services to its citizens, regardless of age. Being a statutory obligation, municipalities have no discretionary power to postpone or cease those type of services, and no exemption was adopted by the government during the lockdown. Ceasing or reducing these services with no references to or consideration of children’s rights led to an absence of necessity and proportionality test, which might lead to unnecessary continuation of the violation of children’s right to health.

Moreover, migrant children’s vulnerability due to lack of measures by the authorities to lessen the impact of inequality became conspicuously visible when migrant communities where overrepresented as carriers of the COVID-19 virus in Norway in the beginning of April 2020. Children’s right to health must not be undermined as a result of discrimination.A vital part to realize children’s right to health without discrimination is the child’s access to appropriate information on health issues, closely related to children’s right to participation. Yet, at the start of the outbreak, the information provided by the government was insufficiently available, targeted and timely, in sum also jeopardizing the right to health of migrant children.

2. Right to education

Article 109 of the Norwegian Constitution states children’s right to education, reinforced by reference to international human rights documents with similar wording. The main features of state obligation in international and national law is to make primary education compulsory for children and available free to all. While this does not necessarily seem to be required considering the wording of international law and Norwegian national law, the UN Committee on Economic, Social and Cultural Rights states explicitly that primary education is a school system for the basic education of children outside the family. To educate children in available and accessible schools that provide acceptable quality and adaptableform and substance of education is an effective tool to ensure that the right to education is realized in a non-discriminatory way.

The lockdown of primary and secondary schools in mid-March resulted in an unprecedented national home schooling experiment – against the advice of public health experts – with teachers educating their pupils with the assistance of digital solutions and parents. While this appears to have worked for the majority of children, not all childrenexperienced available, interested and capable school owners, teachers and parents, when assistance was needed. To access education became dependent on adequate connectivity, data equipment, and digital competence. Nationally, the quality and amount of teacher-pupil interaction appear to have varied to an astonishing degree. Children with special needs and children living in socio-economically marginalized households faced additional barriers – including invisibilisation in government recommendations on education – and became disproportionately vulnerable to the priorities of local governments.

3. Right to safety and security

Children have the right to personal integrity according to Article 104 of the Norwegian Constitution. CRC Article 6 requires states to work in a comprehensive manner so that children are enabled to grow up in a healthy and protected manner, free from fear and want. CRC Article 19 emphasizes that State Parties must implement proper laws as well as administrative, social and educational measures to protect children from all forms of violence, both physical and mental, including in the private realm of the family, and in care homes and other institutions. According to the CRC Committee, the primary prevention of all forms of violence through public health, education, social services and other approaches is of paramount importance. A general lockdown of these services is therefore alarming with respect to the protection of children against violence.

On a national level, several professions were defined as critical to society, enabling parents working in these professions to still send their children to childcare and school. The fact, that professionals working in child welfare services were not initially included in this definition exemplifies the lack of awareness for children’s rights and state obligations.

The child welfare system reports fewer requests for help from children and youth living with violence and abuse. Children with minority and immigrant background again seem to have been disproportionately affectedThe child welfare services experienced that parents started to refuse assistance because of their concerns for infection. More than half of the meetings with and follow-ups of families were cancelled particularly by families that previously had notbeen positive to interact with the Child welfare services before the outbreak.

Concluding observations

Empirically, the issue is the disproportionate impact on children and the burden they have been required to carry. Politically this concerns the legitimacy of tradeoffs between the safety, health and well-being of the majority population of non-children and the ‘minority population’ of children, and how far Norway can go in prioritizing the former. Legally, the problem is the failure to calibrate interventions and frame impact through the prism of constitutional law guarantees — and by that opening up for considerations of necessity and proportionality.

In the event of a second lockdown this fall, starting from its constitutional obligations, the government should:

  • Mandate risk, vulnerability and impact assessments using CRC and the Constitution as points of departure. This means framing problem definitions and interventions with due concern for, but also awareness of children’s human rights and constitutional protections.
  • Make economic investments in child sensitive testing and contact tracing strategies.
  • Include jurists with children’s rights competence in all expert groups to mainstream children’s rights perspectives in all assessments of government interventions, policies and ‘Covid-19 law’.
  • Include assessments of short, medium- and long-term consequences of interventions for children. In a life-course perspective a child’s experiences has large impact on its adult life. In an ethical and moral perspective, children being heavily dependent on society, their well-being must be prioritized in the struggle against Covid-19.

 

Write On! Trade, Law and Development Journal

 

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This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers on international economic law, with Trade, Law and Development Journal as follows:

► This journal invites submissions, in the form of articles, notes, comments, and book reviews on the topic of international economic law to Trade, Law and Development Journal, due by August, 15, 2020, and submitted to here. The theme is “legal and policy issues of relevance to world trade, cross-border investment, environment, and development, broadly defined. The Journal is particularly committed to publishing perspectives from and for the developing world.” Deadline is August 15, 2020.

Breaking the Istanbul Convention Impasse in Lithuania

There is a sense of déjà vu surrounding the 2011 Council of Europe Istanbul Convention and the  related public debate in Lithuania. The treaty continues to find itself back on the political agenda and in public discourse, despite the parliament’s decision to put on hold its ratification in 2018.

And yet it is locked in stalemate as the major disagreement over the usage of ‘gender’ in the Istanbul Convention continues. According to Article 3c, ‘gender’ means “socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”. Critics contend that the concept is unfamiliar to national law. It is argued that the Convention challenges the binary sex system and paves the way for the recognition of lesbian, gay, bisexual and transgender people.

There was also a legal sufficiency argument deployed by those objecting to the treaty. Lithuania “applies all the main provisions of the fight against violence against women, which the Istanbul Convention seeks to implement”, stated the ruling Lithuanian Farmers and Greens Union party in 2018. Little critical light was cast on this assertion, however. The society has instead immersed itself in the conceptual dispute. A recent episode was an open letter from Ausra Maldeikiene, the European Parliament member, addressed to the Catholic Church. It asks to clarify the theological stance in relation to the Convention, despite the bishops’ expressed opposition a couple of years ago.

Alternative approaches are needed to resolve the impasse. The Istanbul Convention — no matter how comprehensive, far-reaching and therefore appealing it is — should not divert from other strategies that could promote gender equality and tackle gender-based violence. One such strategy could be a reassessment of the legal sufficiency argument and the subsequent legal reform. More specifically, the reform of the 2000 Criminal Code and the sexual assault provisions contained therein.

Relevant Articles 149-153 are ill-suited to serve complainants of sexual violence. They are outdated, convoluted, and effectively place the burden of proof on victims.

Take, for example, the crime of rape. The partial definition contained in Article 149 treats it as “sexual intercourse with a person against their will by using physical violence or threatening the immediate use thereof or by otherwise depriving of a possibility of resistance”.

In truth, many victims do not resist. Neuroscience has shown that in the face of danger, the prefrontal cortex — the part of our brain responsible for rational thinking — is impaired. The defence circuitry takes over, leading the attacked person to retreat to learnt habits and reflexes. Shaped by evolution, this process is automatically activated. According to Jim Hopper, a teaching associate at Harvard University, “despite our dominant role on the planet now, we evolved as prey, and when a lion or tiger is upon us, stopping to think is fatal”.

Alas, the self-protection habits that sexual assault victims draw upon tend to be non-confrontational and ineffective. As Jim Hopper further suggests

“What if youre a woman and the only habits your brain cues up are those youve always relied upon to ward off unwanted sexual advances — like saying, I have to go home now” or Your girlfriend will find out”? Those phrases, and passive behaviours that go with them, may be your only responses, until its too late”.

If the defence circuitry determines the situation to be inescapable, it can trigger survival reflexes. These can range from partial or total immobility to difficulty speaking, dissociation, or even losing consciousness. Neurological responses seem counterintuitive, but learning about them is crucial to understand why many victims will submit to sexual attack. Their ability to resist should never, ever be assumed.

The legal premise about physical force warrants a revision, too. As Stephen J. Schulhofer, a criminal justice scholar, puts it, “force runs on a continuum — the knife at your throat, <…> the threat to take away your job or your children, the need to placate a thesis supervisor — all these things can lead a person to tolerate and submit to unwanted sexual advances”. Article 151 acknowledges that mental coercion or person’s dependency could be used in compelling individuals to have sexual intercourse; nevertheless, it is attributed to the lesser offence of sexual abuse. The latter carries a maximum sentence of three years, as opposed to seven years for rape. Ultimately, the form of violence used — be it physical, psychological or financial — should not be considered relevant. It is solely a means for coercive sexual behaviour.

It is high time to change the lens through which sexual offences are viewed. Unwanted bodily invasion is an act of wrongdoing — labelling it as such should not be dependent on whether or not a victim resisted, or what type of accompanying violence they had to endure. Instead, the focus should be placed on the victim’s consent as a voluntary agreement and the steps taken by the defendant to establish it.

For staunch proponents of the Istanbul Convention, the legal reform could offer a happy medium. Described by the United Nations as a ‘gold standard’, it recognises different forms of violence, including psychological (Article 33) and physical (Article 35). Its definition of rape is consent-based (Article 36). It may not yet be possible to align Lithuanian laws with the letter of the Istanbul Convention. But it does not mean that its spirit could not be followed.

As the aforementioned Catholic Church’s engagement shows, the echoes of religious — and political — actors can be louder than the voices of those subjected to gender-based violence. Women’s rights advocates have to attest to this reality. For many, the Istanbul Convention is too controversial.

Nonetheless, the backlash should not place an insurmountable constraint upon the activist imagination. Women’s and human rights defenders could redirect their energy towards the mobilisation of civil society, the initiation of legislative and educational campaigns, and lobbying. Criminal justice reform is a specific alternative that could be explored. Yet it is important to acknowledge — particularly in the current polarised context — that ways to strive for gender equality and improve victims’ lives are countless.

Horrors of a Rape Trial in India: A Saga of threat for masturbation or delivery of Justice?

Introduction

About 50% of the Indian male population is positively traced with a sexual dysfunction which creates hindrances in basic human instincts, leaving one crippled with ignominy. Impotence is the inability in developing or maintaining a penile erection sufficient to conclude the act of intercourse to orgasm and/or ejaculation occurring biologically which is mainly of two types-physical and psychological. Unlike sterility, potency is transitorily dependent on various factors. Untreated Impotence results in sexual sadism. The Mental Healthcare Act 2017, disregards sadism or psychologically generated impotence, indirectly making India the “impotence capital of the world.”

Secondly, the atrocious Impotence Test prevailing chiefly is considered a decisive piece of evidence in cases of rape. This embarks the beginning of torture in the Indian Criminal Justice System. The inhumane approach adopted by the Indian Penal Code in giving discretionary powers to the police officers attacks the scheme of the Indian Constitution. Despite the generic relevance of the test in most cases, routine practice violates Article 21 (Right to Life) of the Indian Constitution. In this article, we highlight the extraneous essence of the impotence test in light of the Indian Criminal justice system and the Indian Constitution.

The terror of the Impotence Test

Traditional female-centric laws pertaining to sexual offences in India butcher male integrity and violate their basic human rights. Checking the potency in rape cases remains a significant practice of law. The relevance of potency extends to adoption, nullity of marriage and divorce along with sexual offences.

Section 53 of the Criminal Procedure Code (Cr.P.C.) showers “unfettered discretionary power” on police to believe that an examination will afford evidence for the case and wistfully magistrates are ousted of such powers. The lacunae in the provision can be identified as:

Firstly, according to acclaimed Modi’s Indian Medical Jurisprudence, the potency test establishes the capability of committing the alleged sexual acts but the hamartia is the laxity of courts in considering situational and psychological factors, resulting in varying opinion of courts on similar matters.

Secondly, force may be used by the police authorities on the unwilling person to collect samples, otherwise threat of masturbation performed on him is invited caused by wrongful interpretation. Religious seers,like Raghaveshwara Bharathi and Asaram accused of rape faced a similar threat. The DNA Technology (Use and Application) Regulation Bill, 2018, bifurcates consent required in taking bodily fluid into two instances, written Consent  in crimes with less than 7 years of punishment and no consent for crimes with punishment of more than 7 years. The clear legislative intent is to differentiate between the two which gets contradicted by the unchecked power given to police authorities in deciding the necessity of performing the examination. Thus, the Indian Penal Code violates the ‘due process of law’ of the Indian Constitution.

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Introducing Deeksha Sharma and Amreen Tapadar

It is our great pleasure to introduce our new IntLawGrrls contributors Deeksha Sharma and Amreen Tapadar. Deeksha Sharma is a penultimate year law student at National Law University, Lucknow, India. She is working with the SDG Society by IIT Madras and the US Department of State as a member of the COVID-19 India study. Previously, she has worked UN ECOSOC Organisations and professionals from the Commonwealth, London, Ministry of women, and Ministry of Environment, India. She is the executive editor of The International Journal of Social Studies- Vol 4 under patrons from Kwazulu University, South Africa, and an International Faculty in Criminology. She is also a  member of the Research and Editorial Board for a book on Health Laws by her University’s professors. She is selected to represent India at the Hansen Fellowship 2021 at the University of San Diego, United States.  Her interests lie in Energy Laws, Environmental Law, and International Trade Law.  She has her blogs and research papers in International and national blogs, journals, and books.

Amreen Tapadar is a penultimate year law student at National Law University, Lucknow. She has previously worked with Amnesty International India for various human rights campaigns, to name a few- 1984 Anti-Sikh riots and 2015 Rohingya refugee crisis. She is the executive editor of The International Journal of Social Studies- Vol 4 under patrons from Kwazulu University, South Africa. She is currently working as a research assistant for various national projects with an international faculty in criminology.and is interning under an advocate of the Supreme court to learn about cases pertaining to human rights. She has previously contributed a chapter to the International Journal of Social Studies regarding the need for a behavior correctional university of inmates.
She has also worked with various NGOs to provide awareness and contributed to helping communities affected by various natural calamities. Her interests lie in human rights, animal laws, environment law, and international dispute settlement and arbitration. Her pieces have been published in various esteemed international and national blogs and journals.

A Pandemic is not the Time for Reforming Judicial Nominations in Guatemala

Jaime Chávez Alor, Latin America Policy Manager at the Cyrus R. Vance Center for International Justice, and Lauren McIntosh, Legal Advisory at the International Legal Assistance Consortium (ILAC), have co-authored a policy brief on postponing reforming the judicial nominations process in Guatemala until after the pandemic subsides.

As is the case in many countries across the globe, the COVID-19 pandemic has further undermined the rule of law in Guatemala due to the use of emergency measures to limit fundamental freedoms and blur the separation of powers. Simultaneously, the ongoing judicial nominations and elections process in Guatemala has been plagued with technical failures and high-level corruption scandals, casting a shadow over the legitimacy of the judiciary and highlighting that reforming the process is vital for the rule of law. Although the judicial nominations process is in sore need of reform, the executive’s recent proposals to do so amidst the COVID-19 pandemic does not allow for the open and transparent process which is needed to bring back legitimacy to and trust in Guatemala’s judiciary.

The full policy brief is available here.