While drafting the Criminal Procedure Code (CrPC), 1973, the Authors had kept three considerations in mind, which were, an accused person should get a fair trial in accordance with the accepted principles of natural justice, every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to the society, and the procedure should, to the utmost extent possible, ensure a fair deal to the poorer sections of the society. The Criminal Procedure Code (CrPC), 1973, which came into force from 1st April, 1974, provides the machinery for the detection of crime, apprehension of suspected criminals, determination of the guilt or innocence of the suspected person, and the imposition of suitable punishment on the person found guilty. The principal object of criminal law is to protect the society by punishing the wrongdoers although no person should be punished without a fair trial. A person is presumed to be innocent until his/her guilt is proved beyond reasonable doubt in a trial before an impartial and competent court of law. It is very important, in the administration of justice, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
In Maneka Gandhi v. Union of India, (1978) 1 SCC 248, it was observed that Article 14 is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic and it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies, one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
In Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC OnLine SC 1346, it was observed by the Supreme Court that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. This is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit. An important question which arises in criminal proceedings is whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.
Section 156 of the Code of Criminal Procedure, 1973 is reproduced as under: –
“156. Police officer’s power to investigate cognizable case. — (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.”
Section 156 (3) states that any Magistrate empowered under section 190 may order such an investigation as above-mentioned. Now, it will be apposite to reproduce Section 190 of the Code of Criminal Procedure, 1973, as under: –
“190. Cognizance of offences by Magistrates. — (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”
In State of Bihar v. J.A.C. Saldhana, (1980) 1 SCC 554, the Supreme Court held that the power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). In Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627, it was observed that the clear position is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
In Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, the Supreme Court held that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence, the Magistrate can order reopening of the investigation even after the police submits the final report. Therefore, Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. When any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.
Thus, it is clear that the Magistrate’s power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a proper investigation takes place in the sense of a fair and just investigation by the police which such Magistrate is to supervise, Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2), and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. The investigation referred to in Section 156(1) of the CrPC would, as per the definition of investigation under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC.
In Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347, it was held that if there is a necessity for further investigation when fresh facts come to light, then the interest of justice is paramount and trumps the need to avoid any delay being caused to the proceeding. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. Further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. If there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.
This power has to be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held by Vinubhai Haribhai Malaviya (supra).
Therefore, a Magistrate can order further investigation under Section 156 (3) CrPC in post-cognizance stage as well. Whether further investigation should or should not be ordered is within the discretion of the Magistrate who will exercise such discretion on the facts of each case and in accordance with law. Article 21 of the Constitution of India mandates that all powers necessary are available to the Magistrate to ensure a proper investigation. It would include the ordering of further investigation after a report is received by him and which power would continue to be available in such Magistrate at all stages of the criminal proceedings until the trial itself commences.
To state that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, and would be available at all stages of the progress of a criminal case before the trial actually commences.
To state that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, and would be available at all stages of the progress of a criminal case before the trial actually commences.
Digital constitutionalism and personal data protection
Knowing that social media and search engine websites have been at their superior best for tracking down individual behaviour, the new branch of constitutionalism, specifically digital constitutionalism, would not only be working against the state actor but would necessarily also work against the non-state actors such as Facebook and Google.
The efficient tool which is coming around the world for regulating the conduct of social media and search engine websites is to draft a stringent personal data protection Act. India too is following in the same fervour and has drafted a Personal Data Protection Bill, 2019.
The nuanced origin of privacy rights as a fundamental right in 2017 brings along a tectonic(al) shift in the Constitutionalism-Jurisprudence in India. Especially, knowing that privacy necessarily tags along with it the questions of informational privacy, or more specifically the question of digital privacy. Knowing that social media and search engine websites have been at their superior best for tracking down individual behavior, the new branch of Constitutionalism, specifically digital constitutionalism would not only be working against the State actor but would necessarily also work against the Non-State Actors (Facebook, Google, etc.). Interestingly, the realm of digital constitutionalism has many takers with differing opinions. Brian Fitzgerald, an exponential writer in the field of informational constitutionalism (IC), tracks the origin and source of IC within the privacy laws such as patent laws, copyright laws, contract laws, and privacy laws. As per Fitzgerald, these laws represent the adequate constraint requisite for protecting the privacy and integrity of an Individual. However, there are other writers, who trace the origin of Digital Constitutionalism within the realm of Constitutional norms as what some call as a normative counteraction against the digital advancement. Under the normative counteraction, we trace the origin of DC within the already established norms of the constitution, so if I have to say that there cannot be any discrimination in any public place, it is an authority which I can draw from the norm of article 15 (2) of the Indian Constitution. Similarly, I will derive this norm against digital technology which might be discriminatory in public places. Similarly, Article 21 dignity-jurisprudence can be applied to informational privacy. So these normative counteractions can be expanded to work against the State and Non-State actor. However, the expansion of normative counteraction requires a two-fold approach, either, the Non-State actors like Facebook and Google are regarded as a part of ‘State’ and when I say ‘State’ I mean the State as defined under article 12 of the Indian Constitution. As once these entities (Facebook, Google, etc.) are regarded as ‘State’, they shall be as liable for protecting the dignity of an individual as the Government of India is. However, the Indian Jurisprudence has not expanded to an extent where it can recognize the Non-State actors as part of article 12. It was not until 1975 when under the judgment of Sukhdev Singh v. Bhagatram, that Justice K.K. Mathew exponentially defined the idea of ‘State’ and hinted that the idea of ‘State’ also includes the idea of entities discharging the function of State as well. This elaborative opinion of Justice Mathew found few takers in series of judgment following after Sukhdev Singh’s judgment, yet the opinion felt short to bring an overhauling change in the settled jurisprudence of ‘State’ as defined under article 12. Today’s settled rule of ‘State’ derives its authority from the Zee Telefilms v. UoI case 2005 famously known as the BCCI case where the triplet test was categorized by the Supreme Court for recognition of an entity as ‘State’: the test of Function, Finance & Administration. However, in between the last decade, there was a case of BCCI v. Cricket Association of Bihar 2015, where Justice T.S. Thakur had emphasized on the function test for recognition of ‘State’. Assuming that the ‘function test’ is core the essence for any entity to be recognized as ‘State’, the other question which naturally follows this thesis is whether social media and search engine giants like Facebook and Google are discharging functions of ‘State’. Let us Facebook for example; the company today is a multi-billionaire dollar organization with thousands of employees around the world, working round the clock to keep the people connected. However, that is one such feature of the social media giant, the company today is endeavoring to launch its own set of crypto-currencies known as a ‘libra’. As well as the Social Media giant also provides for stress-relief features such as ‘Mark yourself safe’ in case of any natural calamity strikes at your region. Apart from that Facebook has also become one of the prime sources of news/information for the world community at large today. Additionally, the company has also launched its own Supreme Court like an adjudicatory body, known as Facebook Oversight Board (FOB) (yet to become functional). The company already is running a parallel ‘State’, the only difference that could be thought between the State and the Facebook is while there is job-permanency in Government, the Facebook employee does not have that, further, there is a counter-argument to this theory that FB does not have democratic legitimacy to be equated with ‘State’. The latter argument does not seem viable knowing that the FB has over a billion users, so it is not like that the Company is not accepted and used.
The other argument which goes against this pseudo-dualism of private/public entity is the ‘incoherent criticism’ theory, the fact that a private organization can be allowed to work without considering fundamental rights just seems incoherent. Private spaces cannot be spots of discrimination or breach of dignity. Keeping this in mind there are substantive arguments for digital constitutionalism, originating from the normative reactions of the Constitution itself, when I say normative reactions, I mean that there is enough leverage under article 21 to work against cases of breach of informational privacy arising not only by the State but by the non-State actor as well.
The above argument helps us in consolidating the position of digital constitutionalism, one that can be traced to the existing norms of the Constitution. However, the question is whether the safeguarded provided by the existing norms are efficient to handle the situation of a data breach. The Supreme Court through K.S. Puttaswamy (2017) had recognized three facets of privacy: bodily privacy, the privacy of mind, and informational privacy. The third facet of privacy, is the troublesome one, as the judiciary recognized the advent of the digital era, it recognized informational privacy as an essential facet of this era and dignity (Article 21). Yet this recognition of a new facet of privacy does little or no work unless there is a normative safeguard to protect them. Ironically, the distinct safeguard for digital dignity (or informational privacy) in India is governed by three major regulations: the Information Technology Act, 2000, (IT Act, 2000), the SPDI rules, 2011 and Intermediary Guidelines Rules 2011. Yet most of these provisions have turned obsolete seeing the kind of technological advancement has been made in the last decade. The SPDI rules were specifically drafted to bring in a sense of accountability on the e-commerce websites and search engine websites, but these safeguards do not categorize the sensitivity of the information. The new Personal Data Protection Bill, 2019 categorizes personal data into broad themes of sensitive personal data and critical personal data.
The efficient tool which is coming around the world for regulating the conduct of Social media and Search engine websites is to draft a stringent personal data protection Act. India too is following in the same fervor and has drafted a Personal Data Protection Bill, 2019. Interestingly, this is India’s second bill on Personal Data Protection, the first draft was prepared by retired Justice B.N. Srikrishna is known as the Personal Data Protection Bill, 2018, which was pretty much on the lines of the European General Data Protection Regulation (GDPR). However, the new draft of the bill titled Personal Data Protection Bill, 2019 has made some serious detachment from the old bill and has certain provisions that are friendly to the Government.
Now this second bill of PDP needs to be seen under the light of Digital Constitutionalism because PDP becomes an essential tool of restraining the power of State and Non-State actor. This model of Constitutionalism is typically based on the model given by Brian Fitzgerald, searching the Constitutionalism through the medium of statutory laws. Unlike its western counterpart: under the European model, the protection of personal data is regarded as a part of fundamental rights. Whereas in India, data protection has been given a status of statutory rights; so even though the informational privacy requires a strong guard of data protection, the Indian Judiciary has not recognized data protection as an essential part of data privacy so far. A statutory right per se does not have the same amount of assurance as that of a fundamental right, yet it will be too early to discard the personal data protection bill, 2019 for its statutory existence (yet to come).
THE PDP BILL, 2019: A NEW DAWN FOR DIGITAL DIGNITY
It is not a hidden fact that the 2016-U.S. election came as a big revelation for the world at large, it told us that the sanctuary of the house is not that safe place after all. The idea of a digital castle was shuttered by Facebook and other media websites, who as per the news around the world, collaborated with the political analyst firm Cambridge Analytic and manipulated voter choices in the United States. This does not end here, the reminiscence of it are still very fresh with cases being alleged in the Brexit movement in Europe and the Presidential election in Brazil. This is an unending tale with diverse authors across the globe. One of the former employees of the firm also mentioned that the firm had met a few political parties in India as well. This raises some serious threat to individual dignity and freedom of choice (which surely can be traced back to article 21 of the Indian Constitution) in India. Therefore, any legislative attempt to curb the outreach of social media needs to have a consensus ad idem of three parties: Government, the Social Media & Search Engine Websites, and the Consumers (Citizens) of Social Media. All these three parties have an interest in the making of a personal data protection act, therefore all their interest needs to find a place in the act.
The current PDP bill, 2019 does provide for more rights for the data principal (consumer of social and search engine website). The bill recognizes the right to be forgotten (read section 20), the right to erasure (read section 18 (1) (d)), right to correction, and the power of the data-principal to take back its consent. There are different categories of consent required for different categories of personal data (read section 11 of the Bill). All these rights seem like a good move for regulating the exercise of power by large corporations and certainly draws a structural balance of power between the data-principal and data fiduciary (State and Non-State actors taking information).
But it has to be kept in mind any form of digital constitutionalism, either coming from the normative counteractions or statutory laws, it has to work against both the State and Non-State actors. The conventional definition of constitutionalism: as a restraint against the State, cannot be a fully operational definition keeping the digital world in mind. Therefore, the implications of PDP Bill, 2019 have to be against the State and Non-State actors equally. Interestingly, various provisions of the PDP bill, 2019 tends to hint towards over-regulation, which is a classic tale of socialism, the bill started from being a role of parens patriae to turning into the eminent domain. The first default reaction of Governments across the globe against the Facebook fiasco was that of a guardian, and its citizens are like its children who are needed to be protected against the outreach of social media, but suddenly this role has turned into the eminent domain. Where the concerted power has shifted from the Non-State actor to the State actor, if sections 12, 14, and 35 are read carefully, there are enough leverage points for the Government agencies to process personal data without being bound by the regulations of consent. This tends to imbalance the power ratio among the three parties in interest and tends to tilt in favor of the Government. A more neutral role would be required by the Data Protection Authority to mediate the power ratio among the three parties.
REASONABLE EXPECTATION OF PRIVACY
The other theoretical notion which we need to explore in absence of any substantive enactment to safeguard personal data could be the theoretical test of ‘Reasonable Expectation of Privacy’. The reasonable expectation of privacy test was evolved in the U.S. Supreme Court through the rulings of Olmstead v. United States, Katz v. United States, and Timothy Carpenter v. United States. The test simply runs on the premise that ‘Would a reasonable person expect privacy within a particular space’. This subjectively objective test has been utilized by the U.S. Supreme Court for way too long. The Indian Supreme Court too in the case of K.S. Puttaswamy (2017) dealt with this theoretical question, where Justice Chandrachud had given recognition to this test, Justice Chandrachud used the phrase ‘legitimate expectation of privacy’, which in a way can be regarded as a passive acceptance of the test as evolved by the U.S. Supreme Court. However, Justice Nariman did not agree with this test in the judgment and rather showed dismay at this test, knowing that Indian Jurisprudence does not agree with ‘waiver right’, therefore applying any test of a reasonable expectation of privacy would have serious repercussion on non-waiver jurisprudence of India.
However, this brings forth a great jurisprudential inquisitiveness for us to ponder upon, is it possible that till the time no substantive enactment is made in, the test of a reasonable expectation of privacy could be applied to fill in the intricate gaps within privacy jurisprudence in India.
Ashit Kumar Srivastava is Assistant Professor of Law at National Law University-Jabalpur.
Protection of whistleblowers in India: A myth
A large number of whistleblowers have been RTI activists who believe that by doing this they can
reform the government and end the malpractices that are present in the system.
The main reason why people think of this option is the anonymity of their identity. Many people want to expose the malpractices present in the system but they avoid doing that because they have to give their identity and that puts their lives into danger. These people want to expose the malpractices so the only option left with them is to take the help of these online sites to bring all these data in public. It is a lot easier option to expose anything via Internet because here we don’t have to get the print out of all the documents. Nowadays all the government offices have also become digitalized, so it is very easier for low-level employees to get secret data that is enough to expose any malpractices present there.
The act in our country doesn’t allow anonymous compliant to be filed and if any such complaint is filed it is rejected straight away and the complainant has no other option than using the online tools for disclosing information.
“The purpose of whistleblowing is to expose secret and wrong ful acts by those in power to enable reform.” — Glenn Greenwald
The term whistleblowing can be understood as raising our voice against some malpractices that are there in an organization. It can be understood as when any person discloses any information that is illegal or unethical present in any organization to the people at large. The term whistleblowing originally came from sports where referee blows their whistle to ensure that there is no foul play involved in the match. The RTI act 2005 is an effective tool for whistleblowers, because of this act only they can obtain any information about activities which they think are illegal or unethical. In many cases, they can bring corrupt practices to light by using this act only. A large number of whistleblowers were RTI activist, who believes that by doing this they can reform the government and end the malpractices that are present in an organization. But by doing this they have a constant threat to their lives because the information they seek from the government or any public offices can destroy the carriers of many corrupt officers.
These officers hold a very big position in these offices and have political connections as well so they can do extreme measures to take revenge. We can say that there were several problems in the existing structure of the act, lack of anonymity of the information seeker raises the chances of getting threats from the people who were at discomfort because of information. People use to harass or give threats to the person to take the request back and if the person did not do so then they even kill the person. Some of such examples Are the killing of Rajendra Prasad in Bihar who exposes the local government for corrupt practices in the police recruitment process and the public health sector as well in another case an RTI activist named as Amit Jethwa who exposes the illegal mining in the Gir forest area of Gujarat also gets killed. In the year 2003, an engineer named Satyendra Dubey in Bihar shot dead after he exposes the malpractices present in the golden quadrilateral project. After this, a call for an act that protects the whistleblower in India arises. After the wait of so many years in the year of 2014, a whistle blower protection act is enforced. Under this act, it is the government’s responsibility to ensure the protection of the whistleblower against the victimization and to conceal their identities. But even after the introduction of this act the number of death of the RTI activist continue to increase in our country. some states also say that they will provide police protection to those activists whose lives were in danger but there were several loopholes in this system as well.
LEGAL FRAMEWORK OF OUR COUNTRY ON WHISTLEBLOWING
The Indian companies (Amendment) Act, 2017 – There is a concept of whistleblowing that is provided by this act, but this term is nowhere expressly mentioned in the act. Under chapter 14th of the companies’ act 2013, that is inspection, inquiry, and investigation the concept of whistleblowing is given. Under the act, it is said that whistleblowing is not an individual job to do but it is an obligation of everybody who is working for an organization to look at its functions and report if he thinks that the organization is not working properly. Under the section 218 of the act, protection is given to the employees while the investigation, this act promotes that every individual who thinks and has reason to believe that the company is using any malpractices or not doing the work by the companies act 2013 then he/she can make an official complaint of the same to the registrar of the company.
Whistleblower protection act 2014- The main motive behind the incorporation of this act is to provide a platform where any person can disclose any information regarding the malpractices or illegal activities present in a company or they can file a complaint against the public servants who were misusing their powers. This act provides us the opportunity to disclose any information through public interest disclosure before the competent authority. The person who is disclosing any information through public interest disclosure has to reveal his identity before the authority and no complaints should be entertained if the person is not revealing his identity. The identity of the complainant is needed only to cross check that whether the complaint is filled by himself or any other person is using his name without his knowledge. If the identity and the facts of the complaint are established then after that the authority will investigate into that matter discreetly. If the identity of the complainant is disclosed by any means then there should be an internal inquiry in that manner and the person responsible for disclosing the identity should be punished according to the law. This act also protects the person against any victimization, if the authority thinks that there is a need to protect the complainant then they will do the necessary arrangements to protect the complaint from any threats.
• THE INFOSYS EPISODE In this case, a group of employees filed a complainant against the top management of the company under which it is stated that the company is using unethical and illegal practices to increase the profits and the short term revenue. The complainant sends that complaint to the board of directors of the Infosys and the US Securities and Exchange Commission because the company is registered in the US and it allows filling confidential complaints with it. In the complaint, the complainants did not reveal their identity because if he will reveal his identity then he has to face the retaliation of the same. The complainant also assured that they have evidence such as call recording and a copy of the email that will prove the above allegations. In the complaint, he alleges the CEO, Mr. Salil Parikh that he directed them to manipulate the documents and make wrong assumptions. Another thing that is stated in the document is that the position of the CEO of Infosys is to be based in Bangalore itself so why the company is not forcing the CEO to begin his work from Bangalore, not from Mumbai. The funds that are used in the visits of the CEO to Bangalore belong to the company, if he wants to work from Mumbai then all the traveling expenses to Bangalore are covered by his salary only not from the funds of the company. But after all the investigation conducted by the audit committee of the company, they gave a clean chit to the CEO of the company that they did not find any substantial evidence confirming the same. The SEC also gave a clean chit to the company in this matter.
• THE SATYAM SCAM – In this, the company misrepresented the accounts of the company to the board, the investors as well as the shareholders. In this scam, the company is alleged in fraudulent auditing practices that are done by the chartered accountants and the auditors of the company. This company is following the whistleblowing policies since it’s starting but it is not followed correctly and due to that only it leads to such a big scam. In this scam, the chairman of the Delhi metro rail corporation suspected big mischief that is happening in the company and raised a red flag about the same in front of the head of the planning commission of India. After all these accusations the owner of the company Ramalinga Raju surrendered himself to the police for the fraud. The original whistleblower that is the chairman of DMRC faced defamation charges by the Andhra Pradesh government because of his letter.
• THE RANBAXY COMPANY FRAUD- In this the whistleblower named Dinesh Thakur was an employee of that company and he suspected that some malpractices are being practiced in the company and because of that he raised his concerns to the concerned authority. But after that, he was forced to resign from the company because the issues he raised consists of drug development, manufacturing, and testing data, and these were very serious allegations so the company management forces him to resign. After resigning he started working for the US food and drug administration and from there he was able to expose the malpractices present in the Ranbaxy Corporation. Only because he took the protection of the US whistleblower protection programme.
WHISTLEBLOWING IN NEW ERA: BY INTERNET
The main benefit that people think of this option is the anonymity of their identity. Many people want to expose the malpractices present in the system but they were not doing that because they have to give their identity and because of that theirs, as well as their family, lives come into danger. These people want to expose the malpractices so the only option left with them is to take the help of these online sites to bring all these data in public. It is a lot easier option to expose anything by the internet because here we don’t have to get the print out of all the documents, where we can just share them as they were available in soft copies. Now a day all the government offices have also become digitalized so it is very easier for low-level employees to get secret data that is enough to expose any malpractices that were present there.
There were many sites such as wiki leaks that offer the whistleblower a sophisticated platform to give that information without giving any of their personal information. They claim that they even do not keep the record of where you uploaded that thing, your time zone, or even your browser. Due to all of these benefits people tend to use these platforms more than the government laid procedures because in that we have to disclose our identity. With all the benefits that we are getting by the online platforms, there were some risks also attached to them such as the threat to national security. Our government agencies have some power to protect national interest they can have some information as secrets with them. These documents are very important for the development of the country and if such documents are leaked by anyone over the internet then the image of the country is degraded worldwide. It will also jeopardize the security of the nation, so we have to be cautious all the time before using any platform for discussing such things.
MEASURES TO PROTECT WHISTLEBLOWERS
• PUBLIC INTEREST: As discussed in the case Common Cause and Ors. Vs. Union of India and Ors. The Supreme Court has mentioned that the whistleblower cannot be penalized if he discloses any confidential information for the public interest. Currently, as per the act, every disclosure is a public interest disclosure, there is no specific definition for the public interest is given in our statutes. Because of this many times, there was confusion regarding the information that whether it can be of public interest or not.
There is a difference of opinion between many agencies regarding this topic so in our country we need a test that could define whether the disclosure of particular information is of public interest or not. We can decide this thing by looking at whether the disclosure of information informs the public about the working system of the organization, whether the disclosure helps in the decision-making system of the government, whether the disclosure of information informs the public about the danger that is there on their lives because of the negligent conduct of an organization if these type of disclosure is happing by anybody then the agencies can choose not to disclose by saying that it is not in the public interest but by seeing the larger picture in the place we can see that the agencies were only trying to save themselves from the embarrassment caused by their actions. So there should be a test to determine this in our country.
• ANONYMOUS COMPLAINTS: The act in our country doesn’t allow anonymous compliant to be filled and if any such complaint is filled it is rejected straight away and the complainant has no other option than using the online tools for disclosing information. In our country the government didn’t entertain the anonymous complaints because several complaints are there without any evidence, these are filled only to defame that particular person. It would take a very large amount of task force and time to check the validity of each complaint and to save themselves from this, the government didn’t allow anonymous complaints. There is a need to find a solution to this problem because many times the complainant did not want to disclose the name and he could have some information that is of national security and because he cannot disclose such information to the government he chooses to disclose it online and the information jeopardizes the national security. In this case, we cannot blame the complainant completely because even we did not give him the chance to disclose that information to us. Some countries develop a solution to this problem such as establishing a hotline in Germany that allows the whistleblower to share his information without giving his credentials, In Indonesia, they develop a website where the whistleblower can share such information and in South Korea, they also established an anonymous hotline for this.
· VICTIMISATION: The act in our country has a very general idea about the protection of the victimized whistleblower. It only directs the concerned authority to give protection to the whistleblower but the authority has the final call over it and in almost all the cases the local authority was not so efficient in providing securities to them because of the local pressure by those against whom the whistleblower has filled the complaint.
Certain things could empower the whistleblower if added in the act were if the whistleblower has the entitlement of getting a transfer from a place or to revoke his transfer then this will give some sense of job security to him. In many cases, the whistleblower is falsely arrested in some different cases to pressurise him to take back his complaint so there should be a rule of immunity from prosecution given to the complainant. He should have given legal assistance by the government to fight from any other false complaint against him. People try to harass the whistleblower in any way possible so if he had legal assistance with him then he can fight with all of this easily. If the whistleblower thinks that he has some kind of threat to the life of him and his family then they all should have given police protection. The competent authority may analyze the threat level and after that, they can decide the level of protection they get.
• INCENTIVES: There is no such concept of giving incentives is there in the act but if some person provides a false complaint against someone just for his grudge then the person will get punishment according to section 17 of the act. So if any person is getting punished for giving false information then why not give a reward to the person that discloses very important information and because of that information the government gets various benefits and also the lives of the people are saved. So according to me, the government can give some incentives to such people. The only problem, with this rule, is that after this many people will complain only about the reward.
But this problem can be solved the government punishes those people who allegedly file complaints to settle his grudge then only in that way the government can recognize that whether the complaints filed by him are in the interest of the public or not.
In our country, the condition of protecting the whistleblowers is not very encouraging, even after implementing so many acts and doing amendments to them the condition of the system is not good. One of the major problems is corruption is present in every department and office whether private or government. Companies don’t let their employees speak against them, and if anyone dares to raise their voice against the malpractices then the company use its enormous wealth and power to win that case and after that the employee that raised his voice, either he gets terminated from the company or his life becomes miserable their so he had to leave that company. In our country to be a whistleblower enormous strength is required, everybody cannot take such amount of pressure that a whistleblower gets in our country.
FEMALE GENITAL MUTILATION: DEEPEST GASH IN THE HONOUR OF WOMEN
Ad infinitum, the first message a girl gathers about her body is that it is flawed – too fat or too thin, too dark or too freckled. But for some girls, the message is that, to be accepted by the wider community, their bodies must be cut, reshaped and altered through a practice popularly known as female genital mutilation (FGM). FGM is a practice involving removal of female genitalia by a sharp iron shank for nontherapeutic reasons. FGM is an egregious traditional practice which has many ill effects on the health of a female, which has been practiced on approximately 200 million girls and women in 30 countries including India hitherto. FGM leads to many complications in a female body with age, wherein it holds no single benefit to them, and even in worst case scenario it could lead to death of an individual. FGM is a serious human rights violation which should be eradicated, by enlightening people about the detrimental effects of FGM.
A lot of ink has been dribbled in the effort to comprehend what Female Genital Mutilation is. In the words of WHO, “Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for nonmedical reasons”. FGM is also known as female cutting or circumcision, and by many other terms, such as sunna, gudniin, halalays, tahur, and khitan, among others.
Every year, February 6 is observed as International day of zero tolerance for female gentil mutilation. The origin of this practice could not be traced but FGM is highly concentrated in a swathe of countries from the Atlantic coast to the Horn of Africa, in parts of the Middle East such as Iraq and Yemen and in Asian Countries like Indonesia.
This practice is persevered by elderly people of the community, who take their infants or young daughters to “traditional circumcisers”, who play pivotal role in carrying this orthodox practice in the name of religion. The job of circumcisers is to cut female genitalia, with or without anesthesia, partially or totally depending upon their usual practice.
The excruciating pain sustained because of this incessant practice does not end with the healing of wound but instead it stays with the person for a lifetime as it leads to many other problems like sexual problems, birth problem with many other which only the person who had endured that pain could understand.
“The pain perpetrated by FGM does not stop with the preliminary procedure, but often endures as ongoing torture throughout a woman’s life.”
Why it is practised?
In many of the countries where FGM is executed, it is an entrenched social and cultural custom rooted deeply in gender inequality where violence against females is socially sustainable.
The reasons behind the practice differs. In some situations, it is seen as a sacrament of passage into womanhood, while others see it as a system to suppress a woman’s sexuality. Many communities practice genital mutilation in the faith that it will ensure a girl’s happy marriage which ultimately ensures family honor. Some associate it with religious beliefs, although no religious scriptures entail it.
FGM is allied with cultural ethics of femininity and modesty, which include the belief that girls are pure and beautiful after elimination of body parts that are considered tainted and unfeminine.
How prevalent is female genital mutilation?
The exact number of females who have undergone FGM universally, still remains obscure, at least 200 million girls and women aged around 15–49 years from almost 31 countries have been exposed to the practice. Young girls in many countries today are at much inferior risk of being subjected to the practice of mutilation than their mothers and grandmothers were in the past times. There has been momentous progress made in eradicating the practice in the past thirty years.
However, progress is not universal or fast enough. In some countries, the practice remains as habitual today as it was three decades ago. A study conducted in 2018 on female genital mutilation in India said that the practice was up to 75 per cent across the Bohra Muslim community. The said study was conducted by three independent researchers. Progression to end FGM needs to be at least ten times quicker if the practice is to be banished by 2030.
Types of female genital mutilation
The World Health Organization (WHO) has classified the practice into four different categories, which are: Type 1 which is also known as Clitoridectomy. That’s the total or partial removal of the sensitive clitoris and its adjoining skin.
Type 2 which is known as Excision. The partial or total removal of the clitoris plus the subtraction of the labia minora, or inner skin folds surrounding the vagina.
Type 3 commonly known as Infibulation. The trimming and relocation of the labia minora and the labia majora – the outer skin folds that encircling the vagina. This often includes stitching to leave only a minor gap. This practice is not only tremendously painful and saddening, it’s also an ongoing infection risk: the stitching over of the vagina and the urethra leaves women with a very minor opening through which to permit menstrual fluid and urine to come out. In fact, sometimes the opening can be so minor that it needs to be cut open to allow sexual intercourse or birth – often causing impediments which harm both mother and baby.
Type 4: This covers all other detrimental procedures like pricking, piercing, incising, scraping and closing the clitoris or genital area.
CONSEQUENCE OF FGM
The repercussions of FGM have both psychological and physiological effects which includes both long term and short term complications. The extent of the short-term complications is totally dependent up on the method in which the procedure is performed. If the process was done using unsterile equipment with no antibiotics and no antiseptics, it increases the risk of complications for the victim. Primary infections comprise urinary tract infections, staphylococcus infections, extreme and uncontrollable pain, and hemorrhaging. Infections such as Chlamydia trachomatis, Clostridium tetani, human immunodeficiency virus (HIV), herpes simplex virus (HSV) 2 are considerably more common among women who experienced Type 3 mutilation if compared with other categories. As the short-term complications apparent, mortality risk increases due to the limited health care accessible to low-income economies. While statistics on the mortality of girls who suffered FGM are not known and hard to procure, it is estimated that 1 in every 500 circumcisions would lead to death. It was disproved in Sudan that this procedure fabricates protective factors agin sexually transmitted infections (STIs) which is not in the case of male circumcision. After the part heals, victim suffers the long-term consequences of the exploitation through both physiological and psychological complications and extensive complications during childbirth.
Amongst other, one of the most common complications is the growth of keloid scar tissue over the part that has been cut. This scar can be a fount of disgrace and anxiety to the women who had FGM. The first sexual intercourse can only take place after gradual and painful enlargement of the opening left after mutilation. For infibulated women (i.e., genitals have been closed tighly) giving birth to a child presents the greatest challenge, as maternal mortality rates are particularly higher because of problems that arise during labor. During delivery, infibulated women are cut in the perineum part so that the baby could be delivered safely.
FGM comes in many forms which leave different long lasting impact on people who has to go through the procedure. One of the victim of such practice recollect the atrocious time when she went through this procedure at the age of 11 what she couldn’t recognize was that it would leave her with irregular periods, bladder complications, and recurring infections. The option left to her was only to give birth via Caesarean section. Now, she is a part of antimutilation campaign.
Posttraumatic stress disorder (PTSD), depression, anxiety, psychoses, and neuroses are common delayed complications that are connected with FGM. In developing countries, these type of conditions regularly go unattended and if left untreated, can lead to mental concerns later in life.
FGM is reprobated by many international treaties and conventions, as well as by national legislation in many countries. There are many initiatives which were adopted to curb the practice and to apprise girls and children about their rights against such exploitation vis-a-vis their bodies.
The convention on the rights of the child (CRC) contains number of articles which addresses the sexual exploitation against children and measures to protect children from such activities. Article 19 of CRC states that government should ensure that children are appropriately cared for and safeguarded from different forms of violence, including sexual abuse.
In the year 1997, World Health Organization (WHO) has delivered a joint declaration against the exercise of FGM together with the United Nations Children’s Fund (UNICEF) and the United Nations Population Fund (UNFPA). Since 1997, substantial endeavor have been made to restrain the practice of FGM, through research work within societies, and modifications in public policy.
Progress at international, national and sub-national levels includes: Great involvement of international groups to stop FGM; International examining bodies and resolutions that stops the practice; Amendments in the legal frameworks and increasing political backing to end FGM (this includes a stringent laws against the practice of FGM in twenty six countries in Africa and the Middle East, in addition to that thirty three other countries with populations migrated from FGM practicing countries); The frequency of FGM has decreased in number of countries and an increasing number of people in communities where it is practiced support ending its practice.
It is indicated through various research work that if practicing communities themselves decide to abandon FGM, the practice can be eliminated very rapidly. In 2007, the Joint Programme are initiated by UNFPA and UNICEF to accelerate the abandonment of Female Genital Mutilation.
In 2008, an affirmation was put forth byWHO with nine other United Nations partners, on the eradication of FGM to succor improved advocacy for its abandonment, called “Eliminating female genital mutilation: an interagency statement”. This statement provided evidence assembled over the preceding decade about the practice of FGM.
In 2010, WHO in collaboration with other key United Nations (UN) agencies and international organizations issued a statement “Global strategy to stop health care providers from performing female genital mutilation”. Many countries are supported by WHO to implement this strategy. The UN General Assembly adopted a resolution on the abolition of female genital mutilation in December 2012.
In the year 2016, the first of its kind guidelines has been laid down by WHO in collaboration with the UNFPA-UNICEF joint programme on FGM. The guidelines were ensued after the systematic evaluation of the best accessible evidence on health complications for women living with FGM. In 2018, a scientific handbook on FGM released to ameliorate knowledge, approaches, and skills of health care workers in averting and handling the complications of FGM was launched by WHO.
The Universal Declaration of Human Rights (UDHR) is an international document drafted in 1948 by various representative from different regions of the world, which talks about the rights and freedoms of human beings irrespective of their race, caste, religion, sex, etc. and contains 30 Articles.
The Article 25 o f UDHR states that “everyone has the right to a standard of living adequate for health and well-being,” and this article has been utilized to contest that the practice of FGM violates the right to health and bodily honor.
FGM mostly done on the minors violates the Convention on Rights of Child. Moreover, it is traditional practice Prejudicial to women’s right which violates the UN convention on the abolition of all forms of wrong against women. It is considered as a crime under the illegal immigration reform and Immigrant responsibility act of 1996 in the United State of America.
The sustainable development are the collections of seventeen goals, which were adopted by the United Nation organization in the year 2015 as universal take to eradicate poverty, protect the environment, increase the standard of living and ensure peace and prosperity by 2030.
In particular, goal 5 elucidate upon eradicating the gender discrimination and building an equal environment for everyone irrespective of their gender, race, caste, etc. which is crucial for a sustainable future. Goal 5.3 recapitulates the elimination of harmful practices against female such as female genital mutilation.
In India, the practice of female genital mutilation executed in Dawoodi Bohra Community prominently, it is a ritual performed on every girl or woman within the community. The dispute first arouse in India due to the two international legal cases against involvement of Bohras community in Australia and the US with the practice.
In 2017, the PIL has been filed by the Delhi based lawyer, who sought the declaration that the said practice violates the basic human rights, and also, amounts to violation of women’s right to life and dignity. On the other hand, the Dawoodi Bohra Community contested that FGM is part of their religion and performance of such practice is protected under the article 25 and 26 of the Indian constitution.
Whereas, the performance of FGM on children would amount to an offence under the Protection of Children from Sexual Offences (POSCO) Act. Since it is practiced on minors, it evidently amounts to serious violation of the child rights as even minors have a right of security of person, right to privacy, bodily probity and the liberty from cruel, inhumane or mortifying treatment. This is practiced without any therapeutic reason and does not have any mention in the Quran.
COMPREHENDING THE FOUNT OF PRACTICE
FGM has been practiced in 30 countries, mainly in Africa with other parts of Middle East and Asia. Further, this practice has been carried to other countries like Europe and America by the migrants who shifted their base to such places. When we look for approaches to address violence we primarily target the particular issue, failing to identify its deep economic and social roots. However, evidence shows that approaches need to be more social oriented and extensive at the time of investing in more peaceful communities. It is further evident that FGM is more dominant among daughters whose fathers are not in favor of the practice or has been undecided but mothers want to carry on with the practice, compared to daughters having fathers as the sole parent supportive of its continuation. Comprehending the extent to which parental beliefs influence choices and which girls are likely to be circumcised is essential for developing suitable interventions designed for promoting the abandonment of the practice.
WAYS TO END FEMALE GENTIAL MUTILATION
Up till now the practice has wreaked a lot of havoc among the girls on whom such egregious act has been practiced. We need to exceedingly work on the measures to curb the practice. With many other the following things are to be done to eradicate the practice rapidly.
• Educating the girl child about their bodily rights, girls has a right to decide what should be done with their body. No female who is well educated about her rights want the practice to continue.
• The local efforts should be orchestrated at places where such practice has been performed to conduct the workshops and activities to beware people about the risks and realities of FGM. The ill-effects of the FGM should be very well communicated to both younger and older generation.
• It should be spread that religion does not demand the circumcision of female or for that matter of any human being. People assume that Islam advocates circumcision of a girl to ensure her purity, which is not true in any sense. The belief which is wrongly followed by people in the name of religion should be stopped and the immediate steps to be taken against this deeply entrenched cultural practice.
• In order to take measures to prevent FGM from causing any further damage the strong educational strategies should be crafted and there is a need to collaborate with various bodies like governmental organizations, private bodies and non- governmental sector to work together efficiently in eradicating this non-human practice.
• The performance of this practice somewhere is because of poverty, which makes society more prone to exploitation, abuse and violence. The survival of many circumcisers are totally based on the initiation of this practice and if we need to eradicate this practice we need to work on generation of employment and end dependency of people on performance of this practice.
• The web of protection should be created which shall include elderly people of the practicing society, attendants of birth giver, and the circumcisers. These people should be primarily targeted to literate about the ill-effects of the practice and why this should be stopped because they are the actual baton holder of this practice. In the end, all of the above ways should be summed up to achieve the 2030 target and effectively work together for eradication of female genital mutilation. While women are reaching the moon, doing something like this to their body without their consent goes totally against the world of equal rights.
There is so much said about the practice back and forth. Female Genital Mutilation not just injures the person physically but also mentally, which leave lifelong horror in the heart of the person on whom it has been practiced. FGM is pervasive practice which do require an evidence based and coordinated approach to ensure that people must be aware how females are hounded by the practice and should underpin the complexities caused by FGM. To combat the practice of mutilation, not only we need comprehensive legislation but also a development in social norms so that the new laws are executed widely and properly. The WHO emphasizes the significance of outreach and education in order to get key stakeholders involve within each community, without which the effectiveness of given laws and educative intervention would be significantly lower. There are several reasons to believe that FGM is a soluble problem.
Surge in FGM amidst pandemic in Middle East, North Africa: Need for a coordinated approach
According to the UNFPA (July 2020 data), 98 percent of the women aged between 15 and 49 years has undergone FGM in Somalia and it is as high as 93 percent in Djibouti, 91 percent in Egypt and 88 percent in Sudan. The joint report released by Equality Now, End FGM European Network and the US End FGM/C Network acknowledged that the ritual is practised outside the Middle East and Asia region too and the official global picture of FGM is incomplete.
Women’s rights were adversely affected amid the COVID-19 global pandemic especially in the Middle East and North Africa (MENA), from intensified domestic violence to joblessness, and made life more miserable. Many malpractices against women have caught the pace in this pandemic such as inhumane practise of Female Genital Mutilation (FGM). It is a harmful procedure undertaken to brutally cut the female genital without her consent, which is a clear violation of human rights.
In April 2020, United Nations projected that around two million cases of FGM could occur in the next decade due to disruptions caused in prevention programmes by the pandemic which would otherwise have been averted in normal living conditions.
No Benefit, All Harm
FGM harms women in many ways and interferes with the natural functioning of the female body. The reasoning behind FGM is quite complex and dominated by traditional beliefs viz. preserving a girl’s virginity and securing her status until she gets married. There are significant physical as well as a psychological consequence of FGM such as bleeding, infertility, infection, death, anxiety disorders, post-traumatic stress disorder etc. The quality of the sex life of the victim is also diminishes.
COVID-19 & Rise in FGM conducts
Now that global attention has shifted to COVID-19 and its impact on the economy, numerous initiatives that advocate the rights of women and provide welfare services to vulnerable women are being delayed or no longer a primary concern. With much more families falling well below the poverty line, and girls being dropped out of school early or forced into child marriages, Female genital mutilation is also likely to persist to appear in the region without notice because, unlike most ‘holidays,’ where the society has something to look forward to, it’s not similar: there is no definite message on what’s going to happen next and it’s confusing people.
According to the UNFPA (July 2020 data), 98 percent of the women aged between 15-49 years has undergone FGM in Somalia and it is as high as 93 percent in Djibouti, 91 percent in Egypt and 88 percent in Sudan. The joint report released by Equality Now, End FGM European Network and the US End FGM/C Network acknowledged that the ritual is practiced outside the Middle East and Asia region too and the official global picture of FGM is incomplete.
Legal Support: Too Little, Too Inadequate
While FGM is constitutionally illegal in Somalia, opposition from religious and conservative clusters has prevented lawmakers from making laws to prosecute wrongdoers. Since 2014 the legislators have been pushing a bill and it is expected to be passed this year, however, the political turmoil that surrounded the first democratic election in more than five decades has raised concerns that the bill can be postponed or stymied.
Egypt has the world’s largest number of FGM conducts. It was banned in the year 2008 (after years of advocacy from women’s right organisation), but many parents are still pushing their daughters into it as a rite of passage; it is estimated that 27 million of women aged 15 to 49 i.e, 87.2 percent have been cut. In countries like the United Arab Emirates and Yemen, there is a ban on medical facilities related to FGM but it is still practiced at home. Sudan too criminalised FGM this year amidst the political transition after 30 years of dictatorship.
Nevertheless, FGM is still widely accepted and law enforcement remains a challenge. Law being an important deterrent is still not enough and there is a need for a national strategy that includes input from judiciary, police, health care providers and civil society.
Forgotten international and regional instruments
In 2003, Protocol to the African Charter on Human and Peoples’ Rights was adopted for the “elimination of harmful practices” against women in Africa, also known as Maputo Protocol. Later in 2011, the African Union Assembly/AU/ Dec. 383(XVII) has given a decision acknowledging FGM as a violation of human rights.
Commission on the Status of Women also approved the draft on “Ending female genital mutilation” (56th session) in 2012. In 2015, FGM is explicitly included in Sustainable Development Goals (SDGs) under Target 5.3 and in 2016 the UNGA adopted a resolution (A/ RES/70/138) which recognises FGM as a form of discrimination and violation of the human rights.
Need of coordinated approach at local, regional, national and international levels
Execution of strategic approach starting from ground level is the key to eradicate the evil of FGM. Targeted training and supportive education need to be promoted to address the issue of FGM with prudence. Healthcare providers play a vital role in the eradication of FGM and they must be acquainted with the ethical and legal frameworks related to the eradication of FGM. This carries the promotion of community awareness and objection to FGM as a violation of one’s rights, including the right to reproductive as well as sexual and physical health for women. Duty of Physician
Taking into consideration the ‘cultural identity’ and the psychological needs of the person involved, doctors should explain the consequences and risks of FGM while discouraging it. They should incorporate health promotion and counselling for women along with informing health care providers and cooperate with local community social and cultural leaders to make them aware.
Development of community programs meant to eradicate the custom, providing appropriate medical knowledge about its negative impacts are needed along with professionals who are skilled to talk to young girls and women and intervene wherever it is required.
The WHA Resolution
The resolution was passed by the World Health Assembly in the year 2008 on ending FGM, stressing upon the requirement for strenuous action in all sectors- education, health, finance, women’s affair and justice.
WHO efforts to eradicate FGM focus on:-
1. Strengthening the health sector responses: Implementing and developing tools, guidelines, policy and training to make sure that health workers can give counselling and medical care to women and girls who have undergone FGM and spread awareness for eradicating the practice.
2. Building evidence: Generating knowledge about consequences, costs and causes of the practice, which includes why the activity is being carried by health care workers and how to eradicate the practice and how to take care of those who have experienced it.
3. Increasing Advocacy: Developing advocacy and publication tools for local, regional and international efforts to end the practice, including tools for advocates and policymakers to predict FGM’s health burden, cost savings and the potential health benefits to the public by preventing FGM.
We must understand the underlying causes of the breaches to truly address the violence and violation of human rights. The state must encourage community intervention programs. Intervention is necessary to stop the abuse
BIT by BIT increase
It has been theorised that the cancellation of various BITs by India and the advent of sunset clauses in the
same could see a large slew of arbitrations being initiated against the country by aggrieved investors.
The recent award passed by the Permanent Court of Arbitration at the Hague (PCA) in the case of Vodafone Group PLC, has piqued the interest of various parties across the globe and domestically. The verdict essentially held that India’s action of seeking to recover a tax demand that had already been adjudicated upon and waived by the Highest Court of the Country, by retrospectively amending its tax code, was in breach of the terms and obligations agreed upon in the investment treaty agreement between India and the Netherlands in particular the obligation of fair and equitable treatment (FET). The tribunal also directed the republic of India to pay 4.32 million pounds to the company as compensation for its legal costs.
Before delving into the nuances of the abovementioned dispute, its ramifications and what the future may hold for India it becomes necessary to understand what exactly is an Investment treaty arbitration and India’s complex and often chequered history with regards to them.
Bilateral Investment Treaties (‘BIT’) establish the terms and conditions for private investments made by individuals and business entities from one sovereign State into another, they are agreements between two states for the reciprocal promotion and protection of investments in each other’s territories by individuals and companies situated in either State. BITs typically serve to protect investments made by investors by laying down amongst other things the extent of regulatory oversight of the host state and further the scope of interference by the host state with the rights of foreign investors.
India signed its first BIT in 1994 with the United Kingdom. As a result of the economic reforms of 1991 and to facilitate the growth of foreign investment India signed around 84 BITs, however as on date 58 out of the 84 BITs have been terminated. India initially adopted an investor first approach and negotiated broadly worded and investment conducive BITs, by providing substantive protection and commitment to foreign investors however this has not always worked in India’s favour. Up until 2011 the above model of an investor friendly approach was by and large accepted and did not cause much debate however; this would soon change.
In 2011 the first publicly known BIT award was published against India in the now infamous case of White Industries Vs. India, where in an investor state dispute, a tribunal held that India had violated its obligations under the India-Australia BIT. The tribunal held that there had been a breach on the part of India to provide an effective means to assert claims, The award made India liable to pay an amount totalling to approximately USD 4 million as damages and legal costs. The award in White industries in a sense opened the floodgates, and in a short period of time India was made party to various investor state disputes involving challenges ranging from the application of retrospective taxes (as in the case of Vodafone), cancellation of spectrum licenses and cancelation of telecom licenses amongst others.
The award in White Industries coupled with the profusion in investor state disputes brought against India led to a review being undertaken by the Indian authorities of its existing BIT model which culminated in India firstly adopting its new model BIT in 2016 and secondly terminating over 58 BITs with other nations so as to renegotiate the same on the basis of the new model BIT.
The 2016 model BIT was seen as a significant departure from the previous overtly investor-friendly approach and leaned towards a much stronger state protectionist approach qua foreign investments aimed at safeguarding India’s interests. Under the new model BIT various elements such as, Most Favoured Nation clauses have been completely done away with, while the scope of others such as Fair and Equitable Treatment clauses have been hugely restricted. These actions were not welcomed globally by investors and nations alike, and the same is evidenced form the fact that no countries came forward after India requested countries to come forward and re-negotiate new treaties based on the new Model BIT. Since 2016, India has signed just three treaties(Bulgaria, Kyrgyzstan and Brazil) none of which are in force as on date. Although all existing investments in India continue to enjoy treaty protection for the next 10 to 15 years, as most Indian BITs contained a sunset clause, the new changes have prompted Investors to adopted a more cautious approach while making investments in India.
The judgement in the dispute of Vodafone Group PLC emanates from the imposition of a tax demand in 2007 to the tune of of Rs 7,990 crore in capital gains and withholding tax against the Vodafone Group when the company acquired a 67 per cent stake in Hutchison Essar for $11 billion.
The stand of the government was that Vodafone Group was obligated to take into account the capital gains and withholding taxes and as a result of the same was liable to pay Rs 22,100 crore to the exchequer after the computation of interest and penalties along with the initial levy. Vodafone challenged the demand notices before the Hon’ble High Court of Bombay, which confirmed the demand raised by the tax authorities. The company subsequently approached the Hon’ble Supreme Court of India in 2012, the Supreme Court held that the Vodafone Group did not have to pay any taxes for the share transfer transaction and quashed the demand raised by the tax department.
Many thought that the ruling of the Hon’ble Supreme Court of India would lay rest the long drawn dispute, and few foresaw what was to come next. The Indian government sought to scuttle the decision of the apex court by passing an amendment in the Finance Act, empowering the tax authorities to retrospectively tax for transactions in the nature of those undertaken by Vodafone in the share transfer and share purchase in Hutchison Essar.
These actions of the Indian government of attempting to recover the original demand which had been waived and quashed by the Hon’ble Supreme Court, culminated in Vodafone initiating an arbitration against India, under the BIT signed by India and the Netherlands. As mentioned above the tribunal held that India had violated its FET obligations under the treaty and thus could not recover the amount in dispute.
Although what amounts to fair and equitable treatment and what actions tantamount to a breach of these provisions have never been outrightly defined as it is never advisable to approach and constrict such an evolving and fluid principle by applying a straightjacket definition. Very briefly put the principles behind FET obligations state that foreign investment should receive equitable treatment and should not be subjected to unjustified, unreasonable or discriminatory measures that would impair the legally acquired rights or interests of nationals of other countries in the enterprises, capital, skills, arts or technology they have supplied in a host state.
Applying the above principle, the arbitral tribunal held that Under Article 4 of the BIT executed between India and the Netherlands, Vodafone was entitled to “fair and equitable treatment” (FET) in respect of its investments in India, which was denied to it. The Indian government’s conduct in respect of the imposition of tax, interest, and penalties, undertaken specifically despite the Supreme Court judgment, tantamounted to a breach of its obligations under this principle of fair and equitable treatment. The tribunal also directed India to pay an amount totalling 4.32 million pounds as legal costs.
As the Indian government can still challenge the award in Singapore which was the seat of the arbitration and if the award is so upheld, can further resist the enforcement of the award in India before the Indian Courts it seems that the dispute has far from reached its conclusion.
What the future holds:
A cause for concern for the Indian authorities is that there are similar disputes pending against India for the collection of tax levied retrospectively, none bigger then the dispute with Cairn Energy PLC and Cairn UK Holdings Limited pertaining to investments made in Cairn India Limited (CIL), one of the largest oil and gas exploration companies in India. The dispute pertains to the draft assessment order issued by the Indian Income Tax Department to the tune of USD 1.6 billion plus interest and penalties. As the award is presently awaited in the present dispute the findings of the arbitral tribunal in the case of Vodafone could effectively act as a precedent and be of persuasive value to the tribunal in the matter of Cairn v. India.
Furthermore the actions of the Indian government of banning multiple Chinese apps and cancelling various contracts granted to Chinese companies could theoretically be challenged as being violative of the FET obligations present in the BIT India signed with China in 2007 which includes FET obligations. The said challenges could possibly be maintained looking at the awards passed in Devas v India and Deutsche Telekom v India, in the said two arbitrations India was held guilty of violating the FET obligations in the applicable BITs for arbitrarily cancelling contracts which impacted foreign investment made in India.
It has also been theorised that the cancelation of various BITs by India and the advent of sunset clauses in the same could see a large slew of arbitrations being initiated against India by aggrieved investors, however if the said hypothesis holds true will only be seen with the progression of time.
Sameer Jain is Managing Partner, PSL Advocates & Solicitors, and Angad Sandhu is Partner, PSL Advocates & Solicitors
The cruel cut: Female genital mutilation
FGM has always been a grave issue and will remain to be one until major steps are taken to cull it. This is not widely recognised as of yet but it will soon be.
I was cut for my future husband. I remember the day clearly. My neighbour’s daughter said to me “You must be looking forward to today” and I looked at her crazy because it wasn’t my birthday or anything. She then giggled and said “oh you’re getting your gudniin done”. Gudniin means circumcision in Somali. As she explained to me what exactly was going to happen, I sat there thinking that didn’t my mother said to not let anyone touch me? Would she let them touch me? I heard screaming from the other side of the house. It was a shrill and agonising shreak. It was my sister’s. Then before I could respond to it or analyse anything, I heard “Get Leyla. It’s Leyla’s turn.” I ran off, but of course, a seven year old cannot outrun an adult. They took me inside, pinned me to this table. There were aunties all around me, holding my hands and spreading my legs apart. I could feel my flesh being cut off. I blacked out from the pain.”
Recounts Leyla Hussain, a FGM survivor born in Somali, Africa. She now actively advocates against the practices and is one of the founding member of the Daughters of Eve non-profit organisation. Female Genital mutilation or female circumcision or locally known as Khatna (hereinafter FGM) is an age old tradition of forcibly removing a girl’s external genitals without anaesthetics for non-medical reasons.
In extreme cases, the external genitals are completely cut and the wound that is left is sewn together. The skin with time heals and stitches itself together sealing maximum portion of a girl’s vaginal orifice. A very small hole is left for urine and menstruation. The small hole, of course, is not sufficient for efficient and smooth flow of urine and blood and hence produces complications ranging from extreme pain during menstruation and miscarriages. The mother could face fatal complications while delivering a child. After the delivery the mother is cut and sewn again.
Why is this an issue now?
FGM has always been a grave issue and will remain to be one until major steps are taken to cull it. This is not widely recognised as of yet but it will soon be. Because of the pandemic, many middle-class families are being pushed down the economy ladder. They are now lower-class. Poverty is increasing due to the unprecedented crisis. Parents now would want to marry off their daughters for financial gains. FGM will prevail as it is a sign or virginity and hence purity. Cut daughters will bring more bride price, or so is believed.
What are different types of Female genital Mutilation?
As per world health organization, Female genital mutilation is assessed into 4 major category. Category 1: This is often the partial or total removal of the clitoral glans (the external and visual a part of the clitoris, which may be a sensitive a part of the feminine genitals).
Category 2: This is often the partial or total removal of the clitoral glans and therefore the labium (the inner folds of the vulva), with or without removal of the labium (the outer folds of skin of the vulva).
Category 3: It is also referred to as infibulation, this is often the narrowing of the vaginal opening through the creation of a covering seal. The seal is made by cutting and repositioning the labium , or labium , sometimes through stitching, with or without removal of the clitoral prepuce/clitoral hood and glans. Deinfibulation is a practice of piercing the covered vaginal opening of a women who has been infibulated to facilitate intercourse and childbirth.
Category 4: In this category, all other kinds of detrimental practices to the female genitals for unethical purposes. It damages healthy and normal female genital tissue, and indulges with the natural functions of women’s bodies. Risks of FGM increase with increasing severity from Category 1 to Category 4. It leads to range of problems which deteriorates women’s condition in future.
Is FGM practised in India?
Yes, sadly it is practiced in India. At least 200 million girls alive today living in 31 countries including India have undergone FGM, says UNICEF. It is practiced primarily in the Dawoodi Bohra comunity, a sect of shia muslims in India. The Bohra High priest Syedna calls the external part of female genitalia as haram ki boti, or sinful flesh which must be cut to preserve female chastity and virtue. Primarily, it ensures ‘pre-marital virginity’.
The tradition is wrapped in patriarchal values of protecting and controlling abody and in gender inequality. Khatna, which is basically FGM as called in India, is practiced not only by Bohra women but also by a woman who wants to marry a Bohra man. She has to produce a certificate of cut before the marriage. FGM is basically telling a woman that her body is there just to carry babies.
My mother was not cut once but twice because a neighbour thought not enough flesh was being taken away, recites a woman who refused to perform FGM. Women who refuse are labelled as outcasts and are isolated by the community. They are impure for a woman who thinks she has more right on her body than her future husband is impure. They are called feminists as if being called one is an insult.
Recently a Petition has been filed by the name Sunita Tiwari v. Union of India where a complete ban on FGM has been prayed. It was prayed in September, 2018 too but the division bench recommended a constitutional bench to the case. It is pending before the Honourable Supreme Court of India. One could rant about banning FGM, holding protests with a group of like-minding people and it will still continue in the secret of the streets. It is called the positive deviant approach, no one will follow my lead like this. Hence, praying for a ban on the practice is means to achieve an end and not the end itself.
If FGM is so horrifying and absurd, why does it still happen?
I have three simple but concrete conclusions.
First, we can’t let go of FGM simply because it is a tradition. No matter how absurd, no matter ho horrific, it is a tradition. It has been there longer than you and I, our ancestors did it and so it simply must continue. This is how almost everyone (primarily the males) who was asked about this practice responded. Here, we may question as to how FGM became a tradition? Because mothers in every culture felt a dire need to protect their daughters from monsters who will take away their chastity. Because daughters hold the honour of her father, of her community, she must be protected. She like a classic damsel-in-distress must wait for her prince to rescue her.
Second reason why it is still practiced is the fact that FGM is a societal norm. It is something that I will do simply because you as my peer expect it of me. It is actually a social obligation. For example, waxing body hair. Nobody has asked us to do it, but somebody started doing it and now we all do it and if one of us doesn’t do it, we frown upon the person who does not do it.
Third reason why it is still practised because FGM is related to cultural ideals of femininity and modesty. It is usually motivated by beliefs about what’s considered acceptable sexual behaviour. It aims to ascertain premarital virginity and marital fidelity. It is believed in many communities to scale back a woman’s libido and thus believed to assist her resist extramarital sexual acts. When a vaginal opening is roofed or narrowed, the fear of the pain of opening it, and therefore the fear that this may be acknowledged, is predicted to further discourage extramarital sexual activity among women with FGM. FGM is usually considered a necessary a part of raising a woman , and how to organize her for adulthood and marriage. Although, FGM has no health benefits, and it harms women in many ways. Since, we’ve identified why FGM still exists, we can think of a solution to prevent it.
How do we stop the practice of FGM? Learning from the Tostan model in Senegal
Now, we know it is a societal norm and what’s important for a societal norm is that it has to shift collectively. Aiming at banning a practice completely is never the solution. Prohibition creates rebels which is always more trouble. It simply doesn’t work. Why won’t it work?
We didn’t make them question it. For this to work, every individual must consciously know why FGM is so wrong. Similar approach was implemented by an organisation called Tostan in Senegal, Africa. Tostan is non-governmental organisation headquartered in Senegal. The founder Molly Melching when arrived in Africa, found out that lack of basic education in the area fuelled the ongoing traditions, especially FGM and child marriage. She with the help of her team trained locals and implemented a three year educating program. The objective was to teach the locals about human rights. They need to know what their rights were and how they were being violated. They presented classes in local levels and provided a stage for dialogue and consensus building. The program is called the community empowerment program.
The basic work of this organization is to convince pairs of villages to stop the practice of FGM together, so that each village will have partners which regard girls and women in the other village as marriageable. The desire for social acceptance and ensuring that your children are considered worthy of marriage by potential partners is one of the drivers of FGM.
More than 7,200 villages have been convinced to give up this practice. This organisation helped change the pluralistic ignorance of the society towards a said tradition as a whole. A law is made according to a society. India didn’t decriminalise the sodomy law because the apex court felt the society wasn’t simply ready for the change. It was ripe for discussion but not implementation. Here, by changing the collective conscience of the society as a whole, Tostan helped change the future laws of the country.
The question never was about whether FGM should be allowed or not, but rather, whether it should be done to children to young to participate in it. It is essentially child abuse and hence a crime. In addition to this, FGM also tells us about how a girl is never her own person but always someone’s daughter, sister, wife or mother.
Every 11 seconds a mother risks the life of her daughter by practicing FGM and we still find time to fight for justice of a celebrity. We are more interested in the fact that a certain female celebrity is sweeping her house and a certain president tweeted something absurd and created a new word called covfefe than the fact that a girl struggles to walk properly for weeks after the flesh between her legs is cut off. She experiences pain so excruciating that she often passes out cold.
Banning as can be said is the first step, not the last. Since, the lockdown and the crisis have increased the probability of increasing cases of FGM, we need to act now.
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