An Evaluation of Prime Minister Modi’s ‘Beti Bachao Beti Padhao’ Initiative

By Neha Mahal 

History of policies of girl child in India

The trend of decline in the Child Sex Ratio (CSR), defined as number of girls per 1000 of boys between 0-6 years of age, emerged broadly in 1991 census data. The continued decline in CSR from 945 in 1991 to 927 in 2001 and further to 918 in 2011 is a major indicator of women disempowerment and lack of value attached to her1. Successive governments introduced several cash incentive schemes, based on assumption that arrival of money on the birth of girl would increase her value and bring down practice of female foeticide. But such initiatives have failed to improve CSR because they do not deal with deep rooted socio-economic causes of declining CSR such as patriarchal attitudes, practice of dowry, and preference for male child due to their ability to economically support parents in old age2.

To holistically engage with social and attitudinal factors responsible for low CSR, PM Narendra Modi’s has launched Beti Bachao Beti Padhao (BBBP) initiative, urging people to change their patriarchal attitudes towards girls and give up the practice of female foeticide. The initiative aims to improve the present low CSR of 918: 1000 and increase the value of girl child by focussing on three pronged strategy for empowerment of girl child- raising awareness on sex selective abortions for attitudinal change, better implementation of PN&PCDT act- convergence of flagship schemes on health and education to improve quality of life of girl child3. BBBP will be implemented across 100 districts with critical CSR for focused intervention. As a symbolic gesture to highlight the urgency in dealing with this issue, the PM launched the scheme from Haryana in January, 20154.

BBBP’s Focus on Girls’ Education and Issues Herein

As the name of the scheme suggests, there is special focus on increasing access to education as a means to empower the girl child. It emphasizes the significance of education in making available better avenues of employment, skill development and turning girls themselves into agent of social change in their lives. Thus, the scheme has marked targets such as increasing enrolment at secondary level from 73 to 76%, reducing drop-out rates at upper primary and secondary level, and reinvigorating School Management Committee to enhance girls’ access to education5. Thus, the scheme essentially depends on making existing schemes such as Sarva Shiksha Abhiyan (SSA) and Rashtriya Madhyamik Shiksha Abhiyan (RSMA) to make the initiative a success. But, it provides no blue print to tackle the critical points of failures in existing schemes responsible for continued low level of girls’ education.

Grassroots-level Barriers

Enrolment of girls is steadily increasing at the school level. It stands at 100.6 for primary level, 90.3 for upper primary and 73.7 for secondary level but it is offset by high drop-out rates at upper-primary (32.9%) and secondary level (46.7%)6. Traditional attitudes towards the girl child enmeshes with economic factors reducing participation of girls in education. According to a study on enrolment and drop-out percentages among boys and girls in secondary level in India, early marriage or child marriage, looking after their young siblings and supporting mothers as domestic help, seasonal migration of parents for work are main causes of drop-out for girls7. Another study on barriers to girls’ education in Madhya Pradesh states that sexual safety of girls at the onset of puberty also contributes to the drop-out of girls at secondary level8. Hence, such demand side obstructions require a holistic approach oriented towards community mobilization and attitudinal change in society towards girls’ education.

SSA has an important aspect of Community Mobilization to bridge the gender and social gap in education. But, track record of allocation and expenditure towards community mobilization in SSA by various states show gross underutilization implying lack of focus on this aspect by respective state governments9. A study on allocation and expenditure in education sector shows that funds reach the grassroots level after substantial delay and in a staggered manner and thus, when received, schools and ground level committees focus on creating tangible use of funds such as whitewash, toilets, boundary walls, blackboards and dusters10. It is due to the perception that a tangible use of funds would be seen as indicating action undertaken, rather than structural reform and changes which would represent only future value. Thus, long term structural initiatives such as community mobilization required to improve enrolment and tackle drop-out take a back seat.

Hence, the scheme focuses on reinvigorating community participation through SMCs for enrolment and reduction of drop-out rates. SMC consists of elected local authorities, parents of children admitted in school and teachers. It is an integral part of Sarva Shiksha Abhiyaan (SSA) intended to bring in community ownership of SSA and accountability. Thus, SMC is an important platform to bridge gender gap in access to education but the initiative presents no road map to remove the inherent loopholes in the functioning of SMC responsible for its failure so far.

According to a study, most parents are not aware of their membership in SMCs and PTAs. Also, many parents are apprehensive to approach the teachers due to their illiteracy and socio-economic status11. Further, there are issues such as lack of awareness on the very working of the system. Such a wide gap between the community and the government functionaries such as teachers reduces the communication needed to raise awareness about the value of education for the girl child and to eradicate the traditional beliefs about girls’ roles.

State-level Impediments

BBBP has announced construction of 500 hostels for girls to allow them to continue education without concern for distance or safety12. But, among five states with lowest CSR, Uttar Pradesh is the only one to send proposals for building of hostels in 201513. Such a state wise variation in realization of these targets substantially undermines the objectives of the scheme to improve girl child’s education and quality of life. Unfortunately, state wise disparity may further increase with the implementation of 14th Finance Commission report. With the increase in states’ share in taxes to 42% from existing 32%, Union government has reduced funding of several social welfare schemes including those with intended impact on girls/women such as Rashtriya Madhyamik Shiksha Abhiyaan (RMSA), ICDS14

According to the budget for 2015, the allocation for Sarva Shiksha Abhiyan (SSA) has been reduced from Rs 27,758 crore to Rs 22,000 crore, Mid-day Meal Scheme Rs 13,215 crore to Rs 9,236 crore and the allocation for RMSA has been reduced from Rs 5,000 crore to Rs 3,565 crore15. Also, the available funds have been made untied to conditions, allowing states to spend them as per their own priorities. Although, it may provide much needed flexibility to states to spend as per their preference but child and women’s rights activists opine that give the track record of many states in implementing schemes with special focus on girl child, a genuine concern arises as every state may not equally prioritize the issue of girls’ education and compensate for the reduced funding by the centre16.

To Conclude:

BBBP is a step in the right direction, bringing much needed focus on issue of girl child and declining CSR. The initiative sets itself aside from others as it has direct support of the Prime Minister giving it much needed political impetus to function. However, it is important to understand that steps to improve their quality of life through education needs intervention beyond targeted goals of enrolment. The high drop-out rates of girls is a result of socio-economic issues at play outside the school. And, they can be tackled only when deep-rooted and everyday silent exclusion of marginalized families and parents in community participation is addressed so that community can be gradually made aware of the value of education for the girl child. Secondly, though the initiative is a union government led programme, its objective of increasing educational opportunities for the girl child for improved quality of life is significantly dependent on participation of the state governments. Therefore, if the scheme has to succeed, it needs engage at a more in-depth and sustainable level to effectively tackle the blind spots responsible for low value of girl child in our community.


  16. ibid












The Nirbhaya Fund: An Overview

By Neha Mehal

Violence against women has received unprecedented focus in governance and politics in the aftermath of Nirbhaya incident. Along with comprehensive reform of the Criminal Law Act in 2013, enhanced governance became a priority to urgently tackle widespread violence against women. Hence, in the budget of 2013, the then Finance Minister P. Chidambaram announced ‘Nirbhaya Fund’ for empowerment, safety and security of women and girl children1. Set up with an initial corpus of 1000 crore, it received an additional grant of 1000 crore each in 2014 and 20152. The fund would finance several schemes for making public spaces safer for women and for rehabilitation of victims of sexual assault and violence.

Some of the major schemes approved for implementation under Nirbhaya Fund are:

  • Introduction of SOS button in phones which would be used by the PCR (Police Control Room) to trace distress calls. Initiated by the Ministry of Home Affairs in consultation with the Ministry of Information Technology, it would be launched in 157 cities in two phases and has an expected outlay of Rs. 1000 crore.
  • A pilot scheme of setting up an SOS alert system in trains in central and western zones through a railway helpline.
  • Installation of CCTV cameras and GPS in public transport in 32 towns each with a population of over one million. The scheme proposed by the Ministry of Road Transport and Highways has a budget of Rs. 1700 crores.
  • Setting up of nirbhaya centres near government hospital in every district as first point access for victims of sexual assault and domestic violence. The scheme is proposed by the Ministry of Women and Child Development with an expected budget of Rs 244 crores.
  • Victim compensation fund for rehabilitation of victims of acid attacks.
  • Programme named ‘Shubh’ for  mapping vulnerabilities and identifying areas and categories of women who need special protection measures such as women in prostitution or widowed women

Background to the Fund

The need for urgent safety measures has been repeatedly stressed at several points in time by various committees and the Supreme Court while observing the shortcomings in laws and governance in preventing violence against women. Most recently, The Justice Verma committee, which was set up after the widespread protests in the wake of the Nirbhaya incident, had recommended use of CCTV cameras and GPS in public transport, public emergency response system to make public spaces safer for women3. The Justice Usha Mehra committee, which was set up to look into Nirbhaya incident, too made an important recommendations of setting up crisis centre for victims of gender based violence and assault for easy access to legal and medical facilities4. Interestingly, the Ministry of Home Affairs had also suggested setting up of such crisis centre in its advisories to state governments and Union Territories to curb violence against women5.

In addition, the Supreme Court (SC) has also actively acknowledged the need for urgent measures to safeguard and rehabilitate victims of sexual violence. Realizing the limitation of sections 294 and 509 in dealing with rampant sexual harassment in public, the SC issued guidelines to states governments to install CCTV camera in public spaces to prevent harassment and assault6. Further, it passed several judgments directing state governments to create fund to compensate victims of acid attacks to alleviate their trauma and financial burden of treatment. However, compensation funds created by states were meager and inadequate for the rehabilitation of victims. In response, the Ministry of Home Affairs (MHA) has created a 200 crore Victim Compensation Scheme to partially finance the scheme in coordination with state governments. It provides a minimum of 3 lakh compensation to acid attack victims7.

Thus, setting up of the Nirbhaya Fund has given boost to the reforms and initiatives which had been in the pipeline for sometime. However, it has failed to reach the level of approval and implementation for want of political will and funds.

Critique of the Proposed Schemes

Although the schemes proposed under Nirbhaya fund have been recommended by various institutions and agencies previously, the changes they have gone through in the process of approval have left many of the schemes without much strength to make a difference at the grassroots level.

One of the major schemes under this fund is Technology enabled emergency response system. The scheme, launched in its first phase in Jaipur and Delhi recently, download of a panic button software in smart phones to be used in distress situation to send signal and location to police control room (PCR) for help. But Justice Verma Committee had recommended a simple hotline as the basis of emergency response system to benefit larger number of persons and suggested use of Smartphone based panic button as technological addition to the system8. Thus, this scheme has come under criticism for being exclusive as its technology and smart phone based security system safeguards only a certain class of women while leaving a large section out of its reach.

In February 2015, the ambitious scheme of Ministry of Women and Child Development (MWCD) to create one stop crisis centre in every district to provide legal, medical and psychological support under one roof to victims of sexual assault and domestic violence was also downsized by the Prime Minister’s Office (PMO). It has approved construction of only one centre in every state in order to reduce the cost of the scheme from Rs. 244 crores to Rs. 18 crores9. As one centre in every state is highly inadequate to cater to victims from all over the state, it negates the basic idea of the scheme to provide easily accessible crisis centre’s to treat victims sensitively and prevent their revictimization in the medical-legal process in order to allow more women to come forward to report crime.

Also, the Victim Compensation Fund, set up with the intention to rehabilitate the victims of acid attacks medically, emotionally and allow them to pursue legal proceedings to the end, falls short of its stated goals. The compensation under the fund can be accessed by the victim only when court passes judgment in the case10 and not when FIR is filed. As legal proceedings are long drawn process requiring substantial time and financial resources, the compensation process denies speedy relief to victims, which is the crux in incidents of acid attacks.

Progress and Problems of the Fund Over Last 2 Years

Nirbhaya Fund, meant to fight crime against women, is one of the few women specific schemes to have budget over 1000 crores. Majority of schemes for women have budget outlay of less than 100 crores. Therefore, it symbolized urgency in dealing with sexual violence against women by initiating effective multipronged measures. But successive governments of UPA II and BJP have received criticism over slow pace of fund utilization. To begin with, the 1000 crore amount was credited to the fund’s account only in January 2014, ten months after its formation. And, by the end of 2015, only 200 crores had been sanctioned out of the fund for emergency SMS alert project and safety of women in public transport11.

The lengthy inter-ministerial coordination for project approval has also created problems in implementation of Nirbhaya Fund schemes. Each ministry is required to send its proposal to the Department of Economic Affairs, which controls the corpus of Nirbhaya Fund, for approval and disbursal of funds. This has contributed to substantial delay in approval and implementation of the schemes inviting widespread criticism from the Supreme Court and media. Thus, in response, the central government has recently made Ministry of Women and Child Development the nodal ministry for submission and approval of schemes under Nirbhaya Fund due to its expertise in issue of women and in order to expedite the process of approval of schemes12.

Even as the bureaucratic loopholes are being plugged to save the scheme, there are larger changes introduced by the budget 2015-16 which raise concern over government’s commitment to tackle violence against women. Two significant projects meant to operationalize rehabilitation schemes under ‘compensation for the victims of rape’ and ‘domestic violence against women act’ have been cancelled in the union budget due to non-utilization of allocations made in 201313. Both the initiatives took nearly decade to reach the stage of legislation and finally when they did, their operationalization was hindered by lack of political will and gender sensitivity in governance structures.

The unconcerned approach regarding implementation of women specific schemes may further impact efforts to curb violence against women. Majority of substantial reforms that were demanded in the aftermath of Nirbhaya incident such as more women in police force, a special crime cell in every district to investigate violence against women come under the ambit of state governments. MHA has issued several advisories to state governments since 2013 to implement these reforms. Interestingly, similar advisories to curb violence against women were also issued from 1995 to 2007 but hardly any of them reached the stage of implementation14. Therefore, it remains to be seen if future of suggested reforms turns out to be any different from previous occasions.

To Conclude:

When Nirbhaya fund was set up in 2013, it was received with mixed expectations by the women rights’ activists and civil society. Though, it symbolized government’s commitment to strengthen the institutions of governance to allow empowerment and safety of women. But a closer look at the schemes and operation of the fund proves their inadequacy in curbing crime against women in any significant manner, reinforcing the doubts that the fund may end up as mere tokenism. Fortunately, now that the MWCD has taken over as nodal agency for Nirbhaya fund, it may well utilize the opportunity to overhaul the present inconsistencies and bring about more concrete and substantial schemes to tackle gender based violence.






Ten Years of the Right to Information (RTI) Act: A Review

By Neha Mahal 

In 2015, the Right to Information act completed ten years, though amidst mixed opinions evaluating its journey so far. On one hand, there is a sense of rejoice for its role in establishing citizens’ right to seek information from public authorities. On the other hand, inaction on reforms needed for efficient implementation of the act have raised doubts over how far things have practically changed at the ground level. The reality of RTI act’s implementation lay somewhere in the middle of these two standpoints. In its decade long existence, the act has managed to bring transparency by exposing slew of corruption cases running into thousands of crores such as CWG, 2G and Adarsh society scam. But, accountability in the routine working of the public authorities is yet to take roots as majority of common citizens still find access to information difficult due to delays, supply of insufficient information and limited reach of the act.

Pendency: Key Barrier in Flow of Information

Citizen’s participation in everyday governance entails supply of information in due time. According to a study, pendency of cases in 23 Information Commissions (ICs) across India is 1, 98,7391. And, it takes at least a year for an appeal to come up for hearing before an IC. The resultant delay in accessing information undermines citizens’ right to know and redress individual grievances, access entitlements such as ration cards and pensions, investigate government policies and decisions, and expose corruption. One of the main reasons for high pendency of appeals with ICs is ineffective process of information supply at the level of Public authorities (PAs) during first application and subsequent first appeal2.

The information Seeker Survey found that “75 per cent of the citizens are dissatisfied with the quality of the information provided by PAs” 3. Even the process of first appeal does not yield substantial result. Except for first appeals filed with the central government or Delhi government, there is less than 4% chance of getting any information by filing a first appeal4. The reason behind such state of affairs is not only bureaucratic resistance to transparency but inefficient information collection and management system within government agencies5. As the files and information are dispersed across several offices of one department for lack of digitisation of records, it becomes difficult to provide information completely and timely on the part of PAs6.

Along with it, suppliers of information, the Public Information Officers (PIOs) are not properly equipped or trained to handle the responsibility of supplying information. According to a study, 45% of the PIOs have not undergone any form of training related to the RTI act7. Thus, lack of comprehensive capacity building efforts make it difficult for them to process the bulky information held by government agencies into legible one sought by citizens8. The IC report also observed that many cases may not have been brought up for adjudication if well informed PIOs had resolved the issue earlier9.

Impending administrative reforms

The obstructions faced by ICs and PAs in maintaining flow of information arise from weakening of SICs’ role as implementing agencies. Under section 18 of the central RTI act, SICs, along with disposing off 2nd appeals and complaints, are also responsible for supervising compliance of the act by PAs10. Recognizing the importance of modernization of record management by introducing information technology and capacity building of PIOs for proper implementation of the act, SICs have regularly recommended to their respective state governments to carry out these reforms. Yet, it eludes implementation because SICs do not have the authority to enforce its recommendations. The authority rests with the state governments which have so far shown negligible progress in implementing these recommendations11.

Lack of substantive authority also reduces capacity of SICs to uphold other channels of bringing in accountability in functioning of PAs. The RTI act allows SICs to impose penalty on PIOs for delaying or refusing the supply of information. Since, SICs lack power of enforceability of its orders, even penalties that are imposed are not recovered12. There is a connection between the number of penalties imposed and both the willingness of PIOs to make information available, and consequently, the number of appeals and complaints reaching information commissions. Hence, authority of SICs is an important dimension in tackling issues of information supply under RTI act.

Lack Of Ownership By State Government

Lack of ownership of the act by state governments has also resulted in scarcity of financial resources for the functioning of the act. Union Government, on the recommendation of the 2nd Administrative Reform Commission had advised state governments to earmark 1 % of the funds meant to implement major welfare schemes towards necessary reforms such as digitization of records and buying necessary infrastructure to provide information over a period of five years13. A study by Research And Advocay Group (RAAG) highlights that state governments have merely forwarded the circulars of Directorate of Personnel Training (DoPT) on RTI implementation guidelines to the Public Authorities without undertaking any financial or administrative reforms themselves14

Along with delaying reforms, scarcity of funds has thwarted initiative at the level of ICs to deal with issue of backlog of cases. ICs require competent and professional full time employees to help in preparing case backgrounds but there is no allocation in budget for such posts15. Thus, ICs have to make do with smaller and ad hoc staff lacking expertise which delays work adding to mounting pendency. Further down, an inadequate budget is available to public authorities at the district level to implement the RTI Act, be it in terms of undertaking training programmes for its officers, creating awareness about the Act, providing publicity material, user guides to the public and other related matters16. Lack of infrastructure with the public authorities at the district and village level makes dissemination of information about welfare schemes related to education, health and right to work practically impossible.

This has resulted in information divide between urban and rural areas. Urban areas have multiple sources to access information such as newspaper, radio and television, internet. While rural areas depend mostly on government channels to get information about initiatives and policies. The resultant gap reflects in the profile of RTI users. While majority of RTI applicants are BPL citizens but they live in urban areas (86%) and rural based users constitute miniscule proportion of users (14%)17. Limited access to RTI in rural areas eludes the objective of the act which was to enable free flow of information, especially, to the grassroots level.

To Conclude

RTI is a landmark legislation as it was enacted after a sustained demand and struggle from the grassroots level. It empowered ordinary citizen to question government accustomed to function in unbreachable secrecy. Where people and activists have been able to make use of RTI, results have been rewarding- from uncovering human rights violations in Hashimpura, to bringing transparency in IIT-JEE entrance exams and making MNREGA (Mahatma Gandhi National Rural Employment Guarantee act) related information public.

Yet, a lot remains to be done to make transparency and accountability a regular feature of governance in India. The urban-rural divide in its access contradicts its foremost objective of bringing information and thus, empowerment to the masses at grassroots level. The lack of reforms denies citizens the opportunity to make governance people-centric. Given that the weakness of the RTI lies in its weak implementation, the next phase of RTI act needs to focus on increasing the authority of implementing agencies, especially SICs, of the act in order to set in motion the practical regime of RTI by ensuring much needed compliance from government agencies.


  2. Ibid.
  4. Ibid.
  6. Ibid.
  8. Ibid

Sustainable Urban Development vs. Facts on the Ground

By Christian van Laak (CDHR)

LogoThe introduction to the SDGs states emphatically that development should “benefit all, in particular the children of the world, youth and future generations of the world without distinction of any kind such as age, sex, disability, culture, race, ethnicity, origin, migratory status, religion, economic or other status” (Introduction Art.3).

Before the SDGs adopt a rather technocratic language, the SDGs quite frankly refer to a concrete human right of ones, who live in an indefensible underdeveloped environment. They should be the ones profiting from future developments in the name of the SDGs. The situation of up to 100 million slumdwellers[1] in urban India is addressed in the 11th SDG on “inclusive, safe, resilient and sustainable cities and human settlements”. But as the facts are on the ground, too often the urban poor are harmed by what is supposed to be development, namely by slum resettlements for somebody else’s benefit. The SDGs have to prove that they can change these facts of development.

The Kathputli case

One of the latest and most prominent cases of a slum resettlement in India is the case of Kathputli, a colony of about 2800 to 3200 households close to Shadipur Metro Station in western Delhi. Kathputli was founded by just a few families migrating into Delhi from Rajasthan in the 1950s or early 60s, most of them engaged in puppetry and other traditional performing arts. Since then the colony has attracted many artist families, migrating from other Indian states and eventually a whole variety of people of all kinds of trades, backgrounds and religions.

Nowadays Kathputli is a multicultural and multi-religious community, but it has still preserved its cultural heritage through its core population of Rajasthani artistes. Besides its diversity, also in terms of its inhabitant’s economic conditions – poverty is prevalent, but one can also see modest wealth here and there – all people of Kathputli lack a legal title to their dwelling space and they all have to cope with an underdeveloped infrastructure in terms of fresh water and sanitation.

Streets of Kathputli

[picture 1: Subtitle: The streets of Kathputli, Photo credit: Christian van Laak]

The first plan to redevelop or resettle Kathputli colony dates back to 1991. But only after 2009 the Delhi Development Agency (DDA), formal owner of the plot which is covered with a warren of one story brick houses of Kathputli, has published details of a plan to resettle the colony in favour of a complex of luxury homes including a 54 stories, 190m high skyscraper. In contrast to former slum-resettlements of such a large scale in Delhi, the inhabitants of Kathputli would not simply be given new and far off dwelling places on the outskirts of the mega-city. In this case the DDA opted for an in-situ resettlement, as it has been done before elsewhere in India, mostly in Mumbai, but never before in Delhi.

Raheja, the development company awarded with the project, is supposed to reserve several 14 story apartment complexes on a small portion of the land for the slumdwellers. These apartments will of course not be as luxurious and spacious as the ones for the open market. But 2800 families of the colony will be eligible for moving into apartments of 30 square meters each, fitted with modern facilities.

Continue reading Sustainable Urban Development vs. Facts on the Ground

India’s Missing Trillions: Evaluating Narendra Modi’s new ‘black money’ strategy

By Casey Sahadath (special to CDHR)

LogoFollowing his electoral triumph in May 2014, Indian Prime Minister Narendra Modi raised the issue of illicit financial flows at his first cabinet meeting. He established a Special Investigation Team (SIT) to unearth Indian ‘black money’ stashed abroad, and appointed former Supreme Court justice MB Shah to spearhead the initiative. It was to be a zero tolerance approach to the illicit movement of taxable income and assets.

Now, wen months later, in March 2015, concerns about the efficacy of Modi’s black money SIT have begun to circulate[1]. The BJP suffered a crushing defeat in the Delhi Legislative Assembly election to the anti-corruption focused Aam Admi Party (AAP). The notorious ‘SwissLeaks’ from HSBC surfaced in February, revealing over 1,000 Indian accountholders with the HSBC Private Bank in Switzerland. As a result Modi’s black money SIT has expanded it probe to investigate a larger number of citizens allegedly involved with the illicit outflow of wealth.

Last week Modi’s administration redoubled their anti-IFF efforts in the form of a new proposed law which, among its many initiatives, offers a window of prosecutorial protection to offenders who wish declare and pay penalties on illegally stashed income. It also ramps up punitive measures against tax dodgers in the form of greater fines and jail time, and creates better collaborative links between the United States and United Kingdom in fighting illicit financial flows.

But here is the question: are the steps taken by Prime Minister Modi significant enough to stop the hemorrhaging of billions of dollars which India loses each year to illicit outflows? Or, is this new proposed law window dressing on a Union Budget with a massive financial deficit?

IFFs image

The backdrop to this issue is the huge amount of wealth that India has lost, and is still losing, to illicit financial flow (IFFs). Some $462 billion were lost between India’s first full year of independence and 2008 – enough to liquidate all of India’s external debt at the end of that year[2]. An additional $344 billion were lost between 2002 and 2011 with losses rising annually since 2002[3]. Illicit assets held abroad by Indian nationals account for roughly 72% of India’s notorious underground economy which has been estimated at half of India’s GDP[4]. Globally, India ranks fifth in average illicit financial flows per annum at $34.4 billion, and among the top ten illicit financial outflow countries, India is the poorest[5].

It is worth stating that the commitment by Prime Minister Modi and his black money SIT is a win as far as anti-IFF initiatives go. India has made fighting IFFs a major political issue. It was a campaign pledge by Prime Minister Modi, and he has built a substantial government apparatus around IFFs with the ability to track, investigate, recover, and prosecute assets and people involved in the process of offshoring funds.

In India, the IFF issue has been elevated to one that is at the centre of political discussion between parties and candidates, instead of a topic that only academics and bureaucrats care about. This is good for raising awareness about the issue, and broader learning for everyone involved. The SIT has acted as the locus for greater action against IFFs. The result has been justice Shah and his team leveraging existing institutional infrastructure in the form of courts, the Income Tax Department, the Ministry of External Affairs, and the Ministry of Finance’s Financial Intelligence Unit to investigate identified tax dodgers, punish them domestically, and attempt to repatriate lost assets.

That being said, supporters of this proposed law should be cautiously optimistic with regards to the efficacy of Modi’s proposed legislation and its associated initiatives. While effective in theory, in practice many pieces of anti-IFF legislation lack the necessary rigor to combat the problem root and branch. These measures may not be a silver bullet to rectifying the taxation issues India faces, its budget deficit, and the IFF problem as a whole.

The BJP’s proposed law for tax offenders is not without precedent. As Krishnan and Beniwal point out for Bloomberg Business, India’s treasury offered a similar amnesty program in 1997[6]. The program brought in approximately 101 billion rupees ($1.6bn), with 470,000 citizens declaring 330 billion rupees of income held abroad.

Despite the success of the 1997 amnesty, there are criticisms that there is no impetus beyond a moral obligation for Indian nationals with assets held abroad to declare their offshored wealth. R. Kavita Rao of the National Institute of Public Finance and Policy is skeptical of Modi’s program’s ability to lead to a massive inflow of hidden funds, stating that “unless offenders feel there’s a flow of information and they will be caught”[7].

There are some new flows of information. February of this year brought about the ‘SwissLeaks’, a deluge of banking information from HSBC Private Bank in Switzerland. Over 1,000 new names were added to M.B. Shah’s SIT probe, and the names of the top 100 HSBC account holders with Indian addresses and their assets held were published by the International Consortium of Investigative Journalism, and then again to multiple Indian press outlets. Among the names on the list were the children of Reliance Industries founder, Dhirubhai Ambani, real estate developer Shravan Gupta, with $32 million held in Switzerland, and the family of the late stockbroker Harshad Mehta with mover $50 million held in HSBC Private Bank[8].

While the release of these names is a boon to the SIT and the Modi Government’s fight against black money, there are a number of hurdles associated with these leaks. Swiss financial officials have noted that the names associated with the HSBC leaks are from stolen information in 2007. Furthermore, HSBC has summarily denied the possession of any illegal accounts. These two points make it difficult for any government to penetrate the veil of secrecy which hangs over Swiss bank accounts. Regardless of the publicized names of account holders, in order for Swiss officials to investigate and reveal more information regarding account ownership, the onus is on the Indian government to produce sufficient evidence regarding the ownership of anonymous and secret accounts. This issue of sufficient evidence has plagued the Stolen Asset Recovery Initiative for decades, and has acted as a major barrier for countries like the Philippines and Nigeria in recovering assets stolen by former leaders Ferdinand Marcos and Sani Abacha[9]. Many global south jurisdictions lack the budgets, personnel, and technical expertise to conduct substantive investigations and request mutual legal assistance from Global North states which absorb IFFs[10].

Anti-black money banner at Anna Hazare protest, New Delhi, August 2011 (photo by Mitu Sengupta)
Anti-black money banner at Anna Hazare protest, New Delhi, 2011 (photo by Mitu Sengupta)

In addition to this, the terminological framework of ‘black money’ possesses a great deal of ambiguity. What constitutes black money for the Indian government is likely to be different for Swiss banking regulators and Swiss banks. If foreign income is legally being declared in a Swiss bank, is it ‘black money’? If income is earned in India by a company in the Cayman Islands who owns an account in Switzerland, is it ‘black money’? Swiss officials and bankers have committed to cooperate with Indian officials in probing for money laundering, but if ‘black money’ is being put in Swiss accounts under the pretense of legal business operations, is it money laundering or just offshoring of funds? These questions pose an unfortunate quandry for Prime Minister Modi, former justice Shah, and their SIT.

In addition to the expansion of the SIT probe to reflect the ‘SwissLeaks’ developments, Modi’s administration has committed to strengthening its cooperation with the United States and United Kingdom to combat tax evasion.

While this is good, given that the U.S. and UK have major roles in the OECD and Financial Action Task Force, involvement with the U.S. and UK in fighting tax evasion should come with a number of caveats.

First, both the United States and the United Kingdom are ranked highly in the Tax Justice Network’s Financial Secrecy Index. A number of U.S. states act as preferential tax destinations for non-resident individuals, corporations, and other financial vehicles. The U.S. also has very few tax information sharing agreements and obligations, and does not have such a treaty with India. Incorporation laws are state-governed in the U.S., and states such as Delaware, Wyoming, and Nevada offer anonymous incorporation for parties uninterested in tying their names to their funds. In a similar fashion to the U.S., the UK possesses what author and frequent IFF commentator Nicholas Shaxson refers to as a ‘spider’s web’ of an offshore system[11]. This leads to my second point.

Second, the United Kingdom possesses a complex global network of tax havens in the form of Crown Dependencies, Overseas Territories, and other Privy Council Jurisdictions. This encompasses 20 states including Anguilla, Bahamas, Bermuda, Brunei, Gibraltar, Isle of Man, Jersey, et al. The United Kingdom has preeminence over its satellite territories and possesses the power to end legislation that allows financial secrecy to exist. However, the UK has taken a non-interventionist stance on exercising vetoes in its dependencies under the pretense of ‘good governance’, citing the negative domestic impacts of interfering with affairs in its satellite jurisdictions. As such, the financial service industries in the UK’s satellite states are largely if not wholly unregulated by the United Kingdom proper. They exist as incredibly effective and secretive bolt-holes for wealthy elites and corporations looking to hide money abroad, and exist in direct contrast to the narrative the UK has shaped in regards to its commitment against IFFs and financial secrecy.

Third, the U.S. and UK are both major vendors of anonymous shell corporations and offshore financial services. Together both countries account for over a third of the global offshore financial services market. In their report, Global Shell Games: Testing Money Launderers’ and Terrorist Financiers Access to Shell companies, Findlay, Neilson, and Sharman found that wealthy countries within the OECD that sell shell company services are the worst among all countries at enforcing global rules and regulations on corporate transparency[12]. Their report found, at a statistically significant level, that it is 3 times harder to obtain an untraceable shell company in a tax haven (i.e. Switzerland) than a developed country (i.e. the United States and United Kingdom)[13]. Outside of Kenya, the United States and its incorporation services provide the easiest access to services which allow parties to incorporate and bank anonymously[14]. The companies that provide shell incorporation services in the United States were found to require the least amount of identity documentation, i.e. no documents whatsoever, among all countries studied at a statistically significant level[15].

Again, committing to working with the U.S. and UK to fight tax avoidance is not necessarily a negative move. Both states possess a great deal of power within circles that create global anti-IFF recommendations and policies, and they are also working to create automatic exchanges of tax information between states. However it is worth bearing in mind that both of these states do a great deal of latent damage to global financial stability. Their lack of effort to end financial secrecy within their own borders and jurisdictions undermines global anti-IFF initiatives, and working closer with the U.S. and UK does not necessarily denote more productivity in fighting tax avoidance.

India is attempting to do what so many African countries are currently struggling with. Capturing what should be domestic revenue that has been lost to wealthy elite and corporate tax dodging, and leveraging that revenue into funds for domestic growth and development. The fact that Prime Minister Modi has elevated illicit financial flows to a major political issue is in it of itself, significant (and timely). However the subsequent black money SIT, and the more recent proposed laws, lack the necessary momentum to be significant steps in achieving the government’s greater goals, i.e., bridging the Union Budget gap, and recovering the necessary revenue to achieve greater growth and tax collection.

More needs to be done internally to prevent public and private sector corruption and create a culture of compliance with domestic tax laws. Those named in the ‘SwissLeaks’ list need to be summoned to public hearings to discuss their involvement with private banks abroad. Furthermore, India might be better off aligning itself more closely with states in Africa and the developing world that are actively campaigning against IFFs than with the United States and United Kingdom, two countries that, through both action and inaction, have undone much progress towards curbing illicit financial flows.

The BJP needs to work harder to create substantive anti-IFF measures. While the 1997 amnesty for tax avoidance saw $1.6 billion return to India, the country lost $1.6 billion in IFFs in 2010. A brief respite for tax dodgers may bring in a short burst of revenue but it is a drop in the bucket for a substantially larger problem.


Fagan, E. J. “Why Indian Prime Minister Narendra Modi’s First Act Was To Go After Illicit Financial Flows.” Global Financial Integrity, May 29, 2014. Accessed March 10, 2015.

Findley, Michael, Daniel Nielson, and Jason Sharman. Global Shell Games: Testing Money Launderers’ and Terrorist Financiers Access to Shell Companies. Report. Queensland: Griffith University, 2012.

The Indian Express, Le Monde, and International Consortium of Investigative Journalists. “#swissleaks: Top 100 HSBC Account Holders with Indian Addresses.” The Indian Express. February 09, 2015. Accessed March 5, 2015.

Kar, Dev. The Drivers and Dynamics of Illicit Financial Flows from India: 1948-2008. Report. November 2010. Accessed March 10, 2015.

Krishnan, Unni, and Vrishti Beniwal. “Modi Gives Last Chance for India Tax Evaders in $2 Trillion Hunt.” Bloomberg Business. March 4, 2015. Accessed March 5, 2015.

Sahadath, Casey. Fighting Illicit Finance: Policies to Curtail Illicit Financial Flows in Africa. Report. Toronto: Ryerson University, 2014.

Stephenson, Kevin, Larissa Gray, and Ric Power. Barriers to Asset Recovery: An Analysis of the Key Barriers and Recommendations for Action. Washington, DC: World Bank, 2011.

Tax Justice Network. Financial Secrecy Index – Narrative Report on United Kingdom. Report. November 7, 2013. Accessed March 5, 2015.


[1] Unni Krishnan and Vrishti Beniwal, “Modi Gives Last Chance for India Tax Evaders in $2 Trillion Hunt,” Bloomberg Business, March 4, 2015, accessed March 5, 2015,

[2] Dev Kar, The Drivers and Dynamics of Illicit Financial Flows from India: 1948-2008, report, November 2010, p. 18, accessed March 10, 2015,

[3] E. J. Fagan, “Why Indian Prime Minister Narendra Modi’s First Act Was to Go after Illicit Financial Flows,” Global Financial IntegrityMay 29, 2014, accessed March 10, 2015,

[4] Kar, p. vii, loc. cit.

[5] Fagan, loc. cit.

[6] Krishnan & Beniwal, loc. cit.

[7] ibid

[8] The Indian Express, Le Monde, and International Consortium of Investigative Journalists, “#swissleaks: Top 100 HSBC Account Holders with Indian Addresses,” The Indian Express, February 09, 2015, accessed March 5, 2015,

[9] Casey Sahadath, Fighting Illicit Finance: Policies to Curtail Illicit Financial Flows in Africa, report (Toronto: Ryerson University, 2014), p. 51-57.

[10] Kevin Stephenson, Larissa Gray, and Ric Power, Barriers to Asset Recovery: An Analysis of the Key Barriers and Recommendations for Action (Washington, DC: World Bank, 2011), p. 31-32.

[11] Tax Justice Network, Financial Secrecy Index – Narrative Report on United Kingdom, report, November 7, 2013, The City of London: history and overview, accessed March 5, 2015,

[12] Michael Findley, Daniel Nielson, and Jason Sharman, Global Shell Games: Testing Money Launderers’ and Terrorist Financiers Access to Shell Companies, report (Queensland: Griffith University, 2012), p. 22.

[13] Findley et al., p. 23, loc. cit.

[14] Findley et al., p. 23, loc. cit.

[15] ibid

One Step Forward, Two Steps Back: The case of land acquisition in India

By Prashant Rayaprolu (special to CDHR)

LogoIn 2013, in response to a number of protests regarding forceful and arbitrary expropriation of land, the Land Acquisition and the Right to Resettlement and Rehabilitation Act (LARRA 2013) was passed with support across party lines. This law replaced the colonial 1894 land Acquisition Act, which was coercive in nature and legitimized arbitrary expropriation of land by the state. In India, historically and until today, land is acquired by agencies of the state government such as the state level development authorities. The land is then either given to the private sector or used by the state. The responsibility of land acquisition in India lies with the states and the center, with state governments free to improve upon a law passed by the central government. The freedom exercised by the state governments with regard to land acquisition have led to varied outcomes across states.

Prior to the LARRA 2013, Tamil Nadu had passed their land acquisition law in 1999. The act had allowed for residents to voice their grievances after the states expresses its intent of acquiring land. Simultaneously, the state’s development agencies have made a conscious effort at forming land banks, which are sold to industry or used for developing public infrastructure.[1] On the other side of the spectrum, we see West Bengal, a state that had undertaken land reforms, but has failed to industrialize over the years. West Bengal has used the colonial act of 1894 in order to acquire land for industry. The recent case of the failure of the Tata’s pulling out of West Bengal because of peasant protests against the expropriation of land illustrates this failure.[2]

Given that manufacturing only contributes to 14.07% of the GDP – with Gujarat, Tamil Nadu and Maharashtra contributing to the bulk of it – and given the poor state of infrastructure in the country, the government has made its intent clear to increase the share of manufacturing as well as to invest more in public infrastructure.[3] The government’s position is that one of the major requirements for achieving a high level of growth in manufacturing and improving public infrastructure is availability of land. Taking West Bengal and Tamil Nadu as examples, the relative ability of the state to acquire land for industry in a relatively peaceful manner in Tamil Nadu has led many to believe this to be one of the major factors in achieving high levels of industrial growth. On the other hand, the protests in West Bengal, in response to coercive methods employed by the state, may be a contributing factor to the low levels of manufacturing in West Bengal.

Amendments proposed by BJP-led government.

On December 31st, 2014, the Bharatiya Janta Party (BJP) led government passed an ordinance to amend LARRA 2013 on December 31st 2014. This ordinance sought to exempt land acquisition for “national security or defence, rural infrastructure or electrification, affordable housing, industrial corridors, and infrastructure and social infrastructure projects”[4] from receiving consent from landowners and a social impact assessment (SIA). This exemption is applicable for private entities and public-private-partnerships acquiring land for the previously mentioned purposes. The LARRA 2013 had mandated consent from 80% of landowners for acquisition for the private sector and consent from 70% of landowners for acquisition for PPP-sector. The part of the Act that has remained intact is the resettlement and rehabilitation and compensation. The compensation package was stipulated at four times the market rate for rural areas and two times the market rate for urban areas. Largely intertwined with LARRA 2013, the Forest Rights Act is also in the process of being diluted by the BJP-led government.

Continue reading One Step Forward, Two Steps Back: The case of land acquisition in India

‘India’s Daughter’ and Some Feminist Legal Concerns

By Jhuma Sen (special guest contributor)


I just finished watching the BBC documentary made by Leslee Udwin titled “India’s Daughter”, which is the subject of much controversy and heated discussion. I must admit that my discomfort before watching the documentary was purely legal—a position that has only been strengthened after watching the documentary. I was holding back my ethical concerns till the time I had actually watched the film. Now that I have watched the film, it is my understanding that the legal and ethical concerns are intertwined so much so that they cannot be easily separated from each other. The clamor of a misunderstood ‘ban’ on the film is so loud, that I thought of laying down my discomfort with the legal concerns this film contravenes. My ethical concern about the documentary toes the line of a brilliant argument by Shivani Nag here –  and so I will desist from using up space reiterating the same. However, as a lawyer and someone who deeply believes in feminist causes, let me articulate some of my legal discomforts about the film.

Here I must start with reiterating a position I have taken earlier—that I do not support ban or censorship of the documentary. The cacophony of a debate in the binary of ban vs no ban gets us nowhere if we are to engage in a more meaningful conversation. A time-bound restraint order/injunction on broadcasting a documentary, containing incriminating evidence of a matter which is still sub-judice as demanded by some in the women’s movement does not amount to ban or censorship by any stretch of imagination. If anything, reducing a nuanced discussion into a simplistic framing of ban especially when no ban exists does a great disservice to anyone who wants a fair and impartial judicial process. We forget lessons of Afzal Guru’s ‘confession’ on prime time television and its impact on the collective conscience of our nation too soon.  The rights of an accused to be a beneficiary of fair judicial process must always triumph over a filmmaker’s artistic or cinematic license till such point of time the judicial process has concluded. Lest we forget, restating the obvious.


At the outset, I think it is important to interrogate the source of this confusion on ban v restraining order. A letter was sent to NDTV on 3rd March 2015 by Indira Jaising and others stating that with the appeal in process, screening of the film with self-incriminatory comments by one of the accused (which was already being circulated in the media) reeks of abuse of fair trial and contempt by way of obstructing administration of justice. No one, who wrote the letter or who supported the content of the letter including the signatories for once demanded that there be a ‘ban’ or censorship of the film and this position has been maintained by all. The issue is not and has never been of a ban on the film but a postponement of the screening till such time the judicial process has concluded. A judicial process includes not only a trial, but also further appeal and even sentencing within its fold.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

In the meantime, brouhaha around the film ensued along with the demand by some individuals (from civil society as well as political parties on varying grounds) to not screen it and the political process was set in motion with the Delhi Police lodging an FIR on its own (perhaps due to an advisory of the Home Ministry) calling for a restraint on telecast/publishing/transmission of the said interview in view of possible law and order problem. The court passed an order prohibiting the publication/transmission of the interview till further orders. The court order  does not call for a ban. However, it must also be mentioned that the FIR was lodged for offences under Ss. 504, 505 (1) (b) and 509 of the Indian Penal Code r/w S. 66A of the IT Act, some of which are fairly abused laws. Needless to say, the FIR or the court order do not speak of the rights of the accused or the questions of due process at play here which are the primary concerns by the signatories of the letter. The restraint order has been a typical response by authorities—reducing a complex situation of violation of fair trial process to a simplistic and colonial understanding of ‘law and order problem’.

So there are two issues at play here. One is a demand by the signatories that there should be a postponement of the screening of the film out of concerns of due process and the other is an actual restraint on the screening/telecast of the film till such time as further orders. None of these imply calling for a ban or an actual ban, since even a temporary restraint order may be modified by an application of the party. Now, if we agree on the assertion that there is no ban on the documentary but a temporary restraint order at play, we can move to the other more significant legal concerns.


The legal objections raised by the letter sent to NDTV on 3rd March 2015 by Indira Jaising and others rest on the issue of fair trial, Section 153A (1) (a) of the Indian Penal Code and Section 2 (c) of the Contempt of Courts Act 1971. On 5th March, Vrinda Grover added to the discussion by confirming the initial objections raised in the letter and also by elaborating the significant points of discomfort experienced by some, including yours truly.

Since the film is now freely available on the public domain, the hypothetical issue of ban is also non est and not of any significance now. So let us try to unpack the cacophony and look at the question of a restraint order in the matter of public broadcasting of the film till such time as the appeal process concludes.

Let me draw a close parallel of this issue with the screening of Black Friday. For the uninitiated, Black Friday was a movie directed by Anurag Kashyap and based on the 1993 Bombay blasts. Upon a petition of the under-trial, the release of the film was blocked until the conclusion of the trial by Bombay High Court. The producers preferred an appeal to the Supreme Court and the High Court order was upheld. The movie was finally released on 9th February 2007, delayed by almost 2 years. For a good analysis of the ramification of the legal challenge to Black Friday, one may refer to Anuj Bhuwania’s piece – ‘Black Friday: Mediation and Impossibility of Justice’ on the Working Paper Series of CSLG, JNU. The film was to have an all India release on 28th January 2005. One of the accused successfully filed a case for an injunction against it arguing that the film would pre-judge him as guilty and therefore vitiate a fair trial process. It would, thus amount to a contempt of court since administration of justice was being interfered with. It must also be noted that Black Friday was based on a book called “Black Friday: The True Story of the Bombay Bomb Blast” written by crime reporter S. Hussain Zaidi and published by Penguin in 2002. The book was written from a prosecution’s viewpoint and primarily relied on various documents filed by the police which formed part of the trial, especially the confessional statement of the accused. The petitioner called for a gag-order on the film till such time his trial was concluded. The Bombay High Court in its 87 page judgment accepted the petitioner’s arguments and postponed the movie till such time the trial continued. The Supreme Court did not pass any interlocutory order to stay the Bombay High Court judgment, but kept the matter pending and therefore effectively disallowed the release of the film till the trial concluded and judgment was pronounced. For a more nuanced discussion on this, one may refer to Bhuwania’s paper linked above.

Protests in New Delhi, 2012 (photo by Jhuma Sen)
Protests in New Delhi, 2012 (photo by Jhuma Sen)

The High Court in its judgment also observes that the film is based on the prosecution story, there is obviously another side to the whole episode and whether the other version should be accepted or not is something for the designated court to decide. Therefore under the garb of making a film based on the prosecution story and furnishing all details therein, it is not open for the respondents concerned to present a picture which would virtually pronounce the petitioners and others guilty.

So does the specter of the cinematic public haunt the judicial process? The Bombay High Court’s judgment seems to toe the line that it does. While this does not necessarily impute that a judge owing to his judicial training will be affected by the extraneous publication of the film, it also does not necessarily guarantee that the public discussion and debate after watching the film will have absolutely no effect on the judicial mind. Have we forgotten the lessons of Afzal Guru and the judiciary’s reasoning that his life must be extinguished to satiate the collective conscience of the society? Was the collective conscience jolted by the one single act of Parliament attack where Afzal’s role was questionable? Or was the collective conscience shaped by the forced public confession by Afzal on primetime news channels? When we have such dangerous precedents of the courts to speak on behalf of public, should we not care about the outcome of public opinion on the judicial process? A court will clearly be more wary of a situation where it has to deal with an adverse public opinion than a situation where the public is uninformed.

Let us also not forget that the trial was conducted in camera and the prosecution had a gag order on the trial. What is the point of an in camera trial if each and every detail of the case is to be splashed in a documentary during the pendency of the appeal? Both Jaising and Vrinda point out that in their communication with Senior Advocate Dayan Krishnan, who was the Special Public Prosecutor in the Trial Court and the High Court as well as Senior Advocate Siddharth Luthra, Special Counsel in the Supreme Court that both of them were approached by Udwin to see the film etc, however, in accordance with professional ethics they did not (this is in direct contradiction to Udwin’s claims that the prosecution team reviewed the film) No prosecutor of the Nirbhaya case has reviewed or given a go ahead to the film maker. On a related note, Udwin has also in a letter to Kavita Krishnan mentioned that she has been legally advised by ‘Supreme Court judges’ in their written legal opinion vouching that the film does not contravene legal boundaries. This is as absurd as it gets and I would join Ms Jaising in urging that Ms Udwin disclose the names of the Supreme Court judges who have advised her.

On the issue at hand, I am most uncomfortable by the damning interview and the filmmaker’s claim that consent was obtained. Here whose consent are we talking about? If we are talking about Mukesh’s consent, how was that consent obtained? Newspaper reports are surfacing on conjectures that Mukesh was paid 40,000 rupees for his interview. Without getting into allegations and conjectures, please let us pause for a bit and reflect the nature of ‘informed consent’ inside the four walls of jail. For any of us who care to remember the Phoolan Devi case[i], an illiterate Phoolan Devi, who did not know Hindi let alone English ‘signed’ a contract where she had allegedly ‘consented’ to selling the story of her life for a sum of Rs 200,000. The said contract was signed in prison, behind the bars and was in English. A copy was sent to her and she has signed it and returned. A blockbuster was made on her life story by Shekhar Kapoor. In such circumstances, where the contracting party is an illiterate woman sitting in prison who was most reluctant to talk about her gang-rape, how must one come to the conjecture that her signature on a contract written in English that produced a sensational film on her gang-rape spells ‘free consent’? How would the law measure her consent as free? She was successful in getting an injunction from the court, restraining the producer from exhibiting the film. Later, a settlement was reached.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

The question in India’s Daughter remains the same as Phoolan Devi’s. How free is a ‘free consent’ procured from a party who is sitting in the confines of a prison? Does he know how his ‘interview’ will impact his case? Was he informed of the inherent legalities that his interview scheduled to be screened on national television entail? Is there a way of knowing if the other accused persons are aware of the detailing of crime by Mukesh in prison where he exculpates himself and incriminates others? How can we not engage with these issues and be sensitive to the rights of the accused (or any party for that matter) by a whitewashing campaign consisting of a reductionist logic of free speech. The narrative is improperly being framed as that of a question of free speech. We are talking about due process and fairness in trial.

Next, is the question of ‘Hate Speech’ and I know I am walking on slippery terrain here. There may be several questions and concerns regarding the nature of the interview of Mukesh and others—does the documentary give a platform for Mukesh and the two defense lawyers to advance what may be construed as ‘hate speech’ against women? Does giving a platform for hate speech the same as actively advancing hate speech? There are no simple answers. For the record, section 153A (1) (a) which has been invoked in the letter to NDTV, punishes anyone who “by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”

Section 153-A was added in the IPC by the Act 35 of 1969 with the object of preventing racial and sectarian quarrels entailing the disturbance of public peace. The old section 153-A as it stood then was as follows-

“Whoever by words, either spoken or written or by sign, or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of citizens of India, shall be punished with imprisonment which may extend to two years, or with fine, or with both.”

The distinction between the old and the new section is in the use of ‘different classes’. The word class according to the old reading included any definite and ascertainable class of people and the body of persons must possess a certain degree of importance numerically[Narayan Vasudev Phadke (1940) 42 Bom LR 861]. The replacement section does away with ‘different classes’ and specifies ‘religious, racial, language or regional groups’ or ‘castes’ or ‘communities’.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

The Legislature contemplates that the words spoken or written, which attempts to promote hatred etc. would create sufficient mischief so as to fall within the scope of the section. It is not necessary for the prosecution to establish further that the writer had the intention to promote such hatred.

As far as invoking of 153-A (1) (a) is concerned, there are two major questions that are being posed. Is the documentary ‘promoting’ disharmony or feelings or enmity, hatred or ill-will The second one is a more dangerous argument—that civil liberties advocates should not perhaps use a much abused provision of law frequently used to curb ‘freedom of speech’. Vrinda has adequately articulated a response to the second question and I shall not repeat what she has already said. I just want to add that laws are strategic tools in campaigning and social movements. To view law in isolation, devoid of its context of use is hugely problematic. Experiences from the ground tell us that 153A must be used in cases of communal violence, like a deeply regressive law on restitution of conjugal rights is also used by many women as an empowering and strategic tool to create a space for negotiation. We must be careful in avoiding this trope of use and misuse of law and flatten our arguments in one size fits all kind of sordid conclusions.

On the first question, Mukesh is not an exception to the all-pervasive rape culture where majority share his (or the defense counsels’) deeply misogynistic views. To such an audience, a note by the perpetrator to kill rape victims is very much a direct incitement to kill the rape victim. In the film, Mukesh says–

The death penalty will make things even more dangerous for girls Now when they rape, they won’t leave the girl like we did. They will kill her. Before, they would rape and say, “Leave her, she won’t tell anyone.” Now when they rape, especially the criminal types, they will just kill the girl. Death. 

What is even more dangerous is the statements made by the lawyers, apparently informed of the law. This is what in my mind the most terrible part of the documentary. The regressive views of the two lawyers, one of whom asserts that women should not step out of their house after 6.30 pm and that if his daughters were to exercise sexual autonomy outside the bounds of marriage, he would himself drag her to his farmhouse and set her on fire. To an audience that largely subscribes to this view, an affirmation from men informed of law sends out a very wrong and potentially damaging signal. If we are okay with invoking hate speech law against the likes of Togadia using a public platform to air their regressive views, what stops us from strategically using this law to stop screening of a film that amplifies these regressive voices that was to be aired on national television and used in primetime news? There may be a difference in opinion about the difficulties in condemning the documentary as an incitement to violence against women and I can see the view of the other camp. But this is largely dependent on a question that I had set out at the outset of this part- Does giving a platform for hate speech the same as actively advancing hate speech? This is however the subject of a separate discussion.

It is also my belief that the legal and ethical issues in the film cannot be completely disentangled from each other. The film does a disservice to the narrative of Indian women’s movements especially in the latter’s struggle against sexual violence. The uninformed portrayal of the December 16th rape as a result of clash between lack of education and dismal poverty of the rapists who live in ‘semi-slums’ and the aspirational ‘on the rise’ middle class women effectively creates a selective amnesia on the all-pervading nature of rape culture where wars are waged on women’s bodies every day in Kashmir, Manipur and Chhattisgarh, where Dalit women are brutalized every day and where within the confines of our ‘safe’ homes, women are raped by their fathers, brothers, uncles and significant others. Poor people rape; uneducated people rape, Sheila Dixit reminds us of this and Udwin sends the message through her in the film. Not once does Udwin question the politics of Sheila Dixit who infamously, after the murder of journalist Soumya Viswanathan had said— “All by herself till 3 am at night in a city where people believe…you know…you should not be so adventurous.” While what can be and must be shown in a 60 minute film is the complete prerogative of the filmmaker, let us also not forget how the film peddles the stereotype of rape as a result of abject poverty of illiterate men and fans the flame of a nation in the grip of hysteria and mob violence. And as we dissect the film and the legal issues, a rape accused was dragged out of jail in Nagaland (Dimapur) and lynched to death by a mob. He was, as a newspaper article reminds us an ‘illegal Bangladeshi immigrant’. One article goes as far as to point out that ‘rapist lynched after BBC documentary aired’. While it will remain unclear how much of the film had an impact on the Dimapur incident, the demand for blood of illiterate men who cannot handle the aspirational middle class women framed in the rhetoric of ‘Nirbhaya rapist unrepentant’ on social media and primetime television is deeply disturbing. This kind of profiling is undesirable. The women’s movement can do without this mob justice and lynch campaign. On another forum, someone[ii] recollected how Truman Capote wrote his non-fiction novel ‘In Cold Blood‘ based on interviews with a man who had, with an accomplice, killed a whole family. Those interviews, too, took place while the appeal process was on, and the only reason why the book was not published until it was over, despite demands from the publisher, was that Capote refused to finish it until he knew the end of the story. I only wish Ms Udwin has shown similar restraint. There are many more issues and areas of discomfort including the suitability of using this movie as a campaign and advocacy material but that is a subject of dissection for another day.

Protests in New Delhi, December 2012 (photo by Jhuma Sen)
Protests in New Delhi, December 2012 (photo by Jhuma Sen)

Under the meaning of Article 19 (2) of the Constitution, law in relation to Contempt of Court is a reasonable restriction. And yes, it is a law that is also used for censorship and has ingloriously been used against Arundhati Roy when she critiqued the Narmada Judgment. But to say that a law which has been twisted for gains must not be used for the purpose for which it was made that is to ensure an unobstructed path to the administration of justice is a travesty in itself.

All important values must be tested, qualified and balanced against other important values. Consequently free speech in appropriate cases has to relate to fair trial. It also follows that in appropriate cases one right (freedom of speech) may have to temporarily yield to another right like right to fair trial. Post Maneka Gandhi, Article 14 and 21 are also subject to the test of reasonableness. In other words, prior restraint gas not been rejected per se as constitutionally impermissible. The court has a power to do in camera proceeding and right to open court/open justice are not absolute. Hence gag orders on reporting and in camera proceedings are permissible under the protection of law. In India, like in some other jurisdictions, the Court has the power to postpone reporting of judicial proceedings in the interest of justice. And justice, to use the well-known cliché should not only be done but also seem to be done. Mukesh has an equal right to a fair judicial process like Nirbhaya and everything she signifies. For if the accused is treated as a lesser citizen at the altar of justice, the greatest disservice is done to justice itself.

[i] h/t Indira Jaising for reminding the ‘consent’ issue in this case as well

[ii] h/t Rohini Hensman for reminding the Capote parallel

Jhuma Sen is an Assistant Professor at Jindal Global Law School, Sonepat.

The Global Health Impact Index: A Human Development Index for Health

By Nicole Hassoun (special guest contributor to CDHR)

LogoThe world is not on track to meet the sixth Millennium Development Goal to combat malaria, HIV/AIDS, and tuberculosis (TB) — some of the world’s worst diseases. Millions of people with these diseases cannot access the essential medicines they need. A new Global Health Impact index can help us address this problem. It evaluates the impact of key drugs on malaria, tuberculosis, and HIV/AIDS in every country in the world and provides something akin to a Human Development Index for health (

On the Global Health Impact index, drugs are having the second greatest impact in India primarily because there is a great deal of successfully treated TB in India and also some successfully treated HIV/AIDS. In Nigeria, drugs for malaria are making a larger difference and, in South Africa, we are having more success in alleviating the burden of HIV/AIDS but having a much smaller impact on TB and malaria.

The index estimates drugs’ impact in each country based on assessments of the need for the drug (in disability adjusted life years lost to the disease states it treats), access to the drug (treatment coverage), and drug efficacy estimates (from, e.g., clinical trial data) in that country. You can learn more about the index by checking out our methodology and resources.

Because the index is focused on evaluating the global health impacts of key malaria, TB, and HIV/AIDS medicines available in each country in a rigorous way, and not on countries’ efforts or policies, countries’ scores depend on many other factors besides the nature of country-level health systems. They depend, for instance, on international aid efforts, and what other drugs are already around. That makes the Global Health Impact index a promising basis for incentivizing many organizations (governmental and non-governmental) to address the access to medicines problem and increase our collective global health impact. One can also see the overall impact we are having on the diseases and drug impact scores aggregated by originator-company.

Moreover, it is possible to partner with the Global Health Impact organization — a collaboration of scholars from universities and civil society organizations from around the world – to look at the determinants and consequences of global health impact. Researchers might consider, for instance, how countries’ levels of development affect, or are affected by, health impact.

Nicole H graph
Disease Burden (Disability Adjusted Life Years) Averted with Key Medicines in Each Country

The Global Health Impact index has the potential to foster great improvements to global health. It should be of interest to policy makers, researchers, companies, investors, and others interested in promoting global health. Although data alone will not solve any of the health problems people face, it can help many people secure essential medicines that save millions of lives every year.

For news about the project, see:

Nicole HassounNicole Hassoun heads the Global Health Impact project intended to extend access to medicines to the global poor and is Associate Professor of philosophy at Binghamton University. From 2006-2012 she was an assistant professor at Carnegie Mellon University, affiliated with Carnegie Mellon’s Program on International Relations and the University of Pittsburgh’s Center for Bioethics and Health Law. In 2009-2010, she held a postdoctoral position at Stanford University and visited at the United Nation’s World Institute for Development Economics Research. She has also been a visiting scholar at the Center for Poverty Research in Austria and the Center for Advanced Studies in Frankfurt. Her book Globalization and Global Justice: Shrinking Distance, Expanding Obligations was recently published with Cambridge University Press.

Budget 2015: Nehruvian budget in the corporate age

By Jean Drèze (special guest contribution)*  

LogoOnce upon a time, around the end of the Second World War, there was a naive view in development economics that growth was mainly a matter of capital investment — building dams, roads, railways and so on. Further, since the private sector was not equal to the task, the state had to take the lead. So, India’s first Five Year plans were largely about state investment in infrastructure. Human capital, as economists, call it today, was badly neglected.

This development strategy had little to do with Nehru — it was common around the world at that time and enthusiastically supported by economists, including many who are now ferocious critics of so-called Nehruvian socialism. Anyway, it had some results: prolonged economic stagnation under the Raj gave way to the so-called “Hindu rate of growth” (about 3.5 per cent per year) of the 1950s and 1960s. But clearly, something was missing.

Capital, growth and development

Among early voices of dissent was none other than economist and future Nobel Laureate Milton Friedman, who came to India in 1955 and submitted an enlightening “memorandum to the Government of India” where he warned against “policies that increase physical investment at the expense of investment in human capital”. Some Indian economists were on the same wavelength, notably B.V. Krishnamurthi, who wrote a sharp note of dissent on education policy in the same year, where he castigated the government for applying “the calculus of the private grocery merchant to a matter like education”. Another dissident, from a very different point of view, was Dr. Ambedkar, who saw mass education as essential for the liberation of the oppressed. The critics, however, were sidelined and India is still paying a heavy price for it today.

Later on, further advances in development economics vindicated these critical thinkers. Needless to say, physical capital is important for growth. But so are human capital, economic institutions, and also other things – for instance social norms – that we do not understand very well. Further, growth is not the same as development, in the broad sense of an improvement in the quality of life and expansion of human freedoms. Growth can be an important tool of development, but the extent to which growth translates into development depends both on the character of the growth process and on various forms of public action. For instance good nutrition, which is essential for the quality of life, depends a great deal on public action in fields like nutrition education, safe water, health care and much more.

Emphasis on infrastructure

Oddly, the recent Budget of the National Democratic Alliance (NDA) junks these insights and goes back to the days of Jawaharlal Nehru, when growth and development sounded synonymous, physical capital was thought to be the key, and human capital took a back seat. Growth, we are told, is the overriding objective of economic policy — the rest will follow. And the key to growth is “infrastructure” — or rather, a certain kind of infrastructure that the corporate sector supports. Further, infrastructural investment has to be done mainly by the government. So, public investment in infrastructure (mainly roads and railways, à la Nehru) gets huge funds, and most other things get squeezed with the notable exception of defence. Health and education, in particular, receive unprecedented shock treatment.

The revived emphasis on infrastructure is not the NDA’s idea. Montek Singh Ahluwalia, the one-man pillar of economic policy under the United Progressive Alliance government, already had grand plans for infrastructural investment — one trillion dollars of it, no less, over the five years of the Twelfth Plan. What is new is the idea that infrastructure should come from public investment. Unlike Nehru, Montek wanted a large share of infrastructural investment to come from the private sector under public-private partnerships (PPPs). But now it’s all about public investment again. That sounds a little odd, considering that the public sector is disparaged to no end in the business media. So where does that come from?

Corporate interests

The answer is given with admirable clarity and frankness in the Finance Ministry’s “Mid-Year Economic Analysis 2014-5”, authored by Chief Economic Advisor Arvind Subramanian. The report candidly states that “the banking sector is increasingly unable and unwilling to lend to the real sector”, because its balance sheets have been ruined by Rs.18 lakh crore of failed or stalled projects — mainly infrastructural projects in the PPP mode. “In this context,” says the report, “it is imperative to consider the case for reviving public investment as one of the key engines of growth”. In other words, after raiding public sector banks and leaving it to the taxpayers to clear the mess of “non-performing assets”, the corporate sector is now counting on the public sector to provide it with world-class highways and other infrastructural facilities — at the expense of the taxpayer once again.

Raghuram Rajan, star economist and no-nonsense Governor of the Reserve Bank of India, had some strong words on this state of affairs in recent months. In a lecture at the Institute of Rural Management Anand (IRMA) on November 25, 2014, he pointed out that the Indian corporate sector enjoyed something approaching “riskless capitalism”, and appealed for “a change of mindset, where the wilful or non-cooperative defaulter is not lionized as a captain of industry, but justly chastised as a freeloader on the hardworking people of this country”. The Finance Minister, however, is more sympathetic to corporate interests. Not only is he obliging the corporate sector’s demand for world-class infrastructure at public expense, his Budget Speech also calls for a new PPP model of infrastructure development with a “rebalancing of risk”, where “the sovereign [i.e. the government] will have to bear a major part of the risk”.

Fallout for social sector

Predictably enough, corporates have been falling over each other to praise the Budget during the last few days. The fallout for the social sector, however, is catastrophic. For the first time ever, critical social programmes like school meals and the Integrated Child Development Services (ICDS) have come under a heavy axe. The gap is to be filled, we are told, by State governments using their enhanced share of national tax revenue. Anyone with a minimal understanding of Centre-State relations is likely to hear alarm bells. Also, it is not clear how State governments are supposed to make instantaneous adjustments in their 2015-6 Budgets to fall in line with this cold turkey approach.

Perhaps the worst victim of this Budget squeeze is the health sector. As is well known, public spending on health is lower in India than in almost any other country in the world, as a proportion of GDP. This year, it may go down not only as a proportion of GDP, or in real terms, but even — for the first time — in money terms. Incidentally, in the previous Budget, Finance Minister Arun Jaitley announced a grand plan for “universal health assurance”. There is not a word of it in last week’s Budget speech. Instead, the Minister now promises a new grand plan for “universal social security.” As before, there are no specifics, no timelines and no budgetary commitments worth the name.

The most worrying aspect of this squeeze is that it was greeted with glee in the mainstream media. It signals, we are told, a welcome shift of emphasis from “handouts” to productive investment. But the big-ticket handouts, like subsidies for the privileged, actually remain, despite some proposed changes in the mode of delivery. Social programmes that can make a real contribution to people’s well-being and productive capacity, on the other hand, face severe budget cuts. Welcome back to the Third World.

(Jean Drèze is Visiting Professor at the Department of Economics, Ranchi University.)

*This article was previously published in The Hindu, March 5, 2015.

Strengthening civil society solidarity networks in global health

By Kaila Mintz (special to CDHR)

LogoAn independent global civil society solidarity movement is essential to effectively encourage, monitor, expose and critique institutional global health responses. Solidarity and mobilization on HIV/AIDS is generally the standard-bearer for other global health responses founded on human rights principles. Activist Mark Heywood, a founder of South Africa’s influential Treatment Action Campaign (TAC), notes that, “the game-changer was to be the rise of a global activist movement that reset the agenda for AIDS.”[1]

During the 45th Union World Conference on Lung Health, I witnessed the lessons and legacy of human rights-based collective activism around HIV/AIDS in action. My new colleagues in the global tuberculosis (TB) activist community pushed conference organizers to adopt strategies from International AIDS Conferences, such as establishing a civil society focal person in the conference secretariat, to better integrate civil society activism into discussions for a more effective global health response.

Given complex health interdependence and a lack of global government, some call for “international collective action” to displace the central role of states in global health.[2] However, local health systems and broader national and international policy frameworks, including free trade agreements, remain central to health outcomes. Beyond these high-level policy considerations, how can “Western” civil society and non-governmental organizations most appropriately support and build the capacity of “Southern” partners for advocacy? How can we help amplify a range of voices, while recognizing the multiple, interdependent benefits accrued through solidarity?

These are questions I have been contemplating lately, as global health engagement from the perspective of civil society solidarity is a relatively new area for me. Making a professional transition from the world of government diplomacy to civil society research and advocacy is necessitating a great deal of reflection, learning – and humility. Through this process, and with incredible mentors, I’m seeking to grasp how efforts to address the injustices that underpin and sustain global health challenges such as HIV and TB can be achieved in ways that are respectful, inclusive and responsive to the needs, concerns and strengths of partners around the world. In this spirit, these initial personal reflections are not meant to represent the views of my own organization or others.

Continue reading Strengthening civil society solidarity networks in global health