A Striking Chief Justice

By ALBERTINA ALMEIDA

 

India has had 44 Judges as Chief Justices of the Supreme Court including the current one. But not all leave the kind of impression that the recently deceased Chief Justice Altamas Kabir did. During his stint as the Chief Justice for barely a year, and prior to that as Justice of the Supreme Court for about seven-and-a-half years, Justice Altamas Kabir did blaze a trail in terms of understandings of justice and crusading for peace.

 

Not for him the flaunting of Justiceship on the collar, gown and sleeve. Not for him the stiff neck that characterizes many Justices. This Chief Justice was a simple down-to-earth jovial person, who yet was firm beneath his gentleness. I had occasion to meet him on the verge of his elevation as Chief Justice and was struck by this simplicity and also responsiveness. He was prolific with disposing cases with practical judgements that clearly elucidated the rationale: instead of saying the homo sapiens veered from the vertical to the horizontal position to simply say a man fell down.

 

Justice Altamas Kabir’s minority status perhaps gave him the position from which he could understand the conditions of marginalized sections of society. Justice Kabir reemphasized in the famous IR Coelho case judgement delivered in early 2007 (popularly called the Ninth Schedule case) where he held forth on the basic structure of the Constitution and maintained that the Court has preserved its inherent powers to make such orders as may be necessary in the interests of justice as the guardian of the Constitution. “Justice transcends all barriers and neither rules of procedure nor technicalities can stand in its way, particularly if implementation would result in injustice”, he said and emphasized that “It is necessary to cut across technical tapes”.

 

Being the incumbent of the post of Chief Justice when the Nirbhaya case and the protests about it were raging, Justice Kabir, on an occasion a few days after this incident, while inaugurating a Fast Track Court in Delhi, expressed his anguish that he could not be part of the protest given the position he was holding. He was however clear that in the process, one cannot get so carried away that we handle the matter with a knee-jerk response where the solution is worse than the problem.  As a matter of fact, he cautioned against vigilantism. He was speaking in the backdrop of strident demands of castration, death penalty, ‘shoot them’ attitudes that were renting the air in those days.

 

It was perhaps in this spirit that when having to give his considered opinion on reducing the age of a juvenile when it comes to rape murder cases, he did not appreciate the rationale for this and reminded the world that the objective of the Juvenile Justice Act was restorative and not retributive justice. The Juvenile Justice Act, one may recall is meant to ensure that there is justice for a child in need of care and protection as well as a child in conflict with the law so that the child is rehabilitated and does not grow into a destitute or a criminal.

 

The NEET (National Eligibility Entrance Test) case was the last of the cases on which he delivered judgement before his retirement in 2013. The case had the effect of pushing back the proposal for the single all India entrance test for admission to professional medical and dental colleges all over India. It is hugely significant in the context of Goa. It resonated for Goa which has had just an iota of IAS officers precisely for reasons of language and script, when Justice Kabir opined that apart from the right to freedom of religion, is the right of citizens to a distinct language script culture of their own to conserve the same. Difference in language, culture or script has often given those invested in dominant languages, cultures or scripts an edge over students from minority languages, cultures or scripts, in a situation where the standard of the exam is determined by the practices and standards of the dominant.

 

“There can be no controversy that the standard of education all over the country is not the same. Each State has its own systems, pattern of education, including the medium of instruction. It cannot also be disputed that children in metropolitan areas enjoy greater privileges than their counterparts in midst of the rural areas, as far as education is concerned, and the decision of the Central Government to support a single entrance exam would be perpetuate such divide in the name of giving credit to merit”, Justice Kabir opined.  Justice Kabir further remarked in the judgement that in a single window competition, the disparity in the educational standards in different parts of the country cannot ensure a level playing field, thereby highlighting the dangers of a single entrance test.

 

Justice Kabir empathized with marginalized sections of society and is fondly remembered by adivasi groups in Jharkhand where he held the post of Chief Justice of the Jharkhand High Court. His invitation to representatives of marginalized sections of society, including Dalits and adivasis, to attend his oath-taking ceremony as Chief Justice is well remembered.  And so are his efforts to get Supreme Court Judges to engage with their concerns, including the time he got a team of Supreme Court Judges to meet a delegation of sex workers at the National Legal Services Authority, in order to enable them to understand what it means to be in those shoes.

 

It is not as if Justice Kabir did not have his share of allegations of various kinds, and the jury is out on the truth or otherwise of those allegations. But that cannot take away from certain sterling qualities of Justice Altamas Kabir emphasized above, that people in positions of power could do well to emulate.

 

(First published in O Heraldo, dt: 23 February, 2017)

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As Goa Prepares to host BRICS…

By ALBERTINA ALMEIDA

 

When any State summit takes place, and that too of an international dimension, it is important for the host location to be familiar with what is going to be deliberated on their soil. However there is no such visible effort by the State to acquaint or involve host Goa in the BRICS Summit deliberations, except for sprucing up roads.

 

So what is BRICS? BRIC was basically a formation of Brazil, Russia, India and China that has roots in 2006 with the meeting of its leaders while they were attending the UN General Assembly and noted the inequities of the economic system where some countries stood privileged over others in determining the shape of things all over the world to their advantage. South Africa was admitted to the BRIC formation in 2010 and then it became BRICS.

 

All the countries in BRICS had at one stage or the other challenged the charting out of a development that leaves out the voices of these countries. These were also, (and they continue to be), rising powers from the developing world that have been confronted by US superpower. The peoples of BRICS countries have experienced the consequences of a global politics that bypasses the voices of developing and underdeveloped countries in forging a world order. Consequently, the economies of these countries get tied to the apron strings of international financial institutions who set conditionalities for the loans that are advanced to the developing countries, while plunging the countries into deep debt, akin to today’s banking system, where an individual loanee gets swallowed, with the nature of the system including the interest structure and the pattern of investment by these banks.

 

The conditionalities, euphemistically called structural adjustment programmes, have included calling upon loanee countries to reversing fought-for robust processes of democratic governance. These conditionalities included adjusting the labour law machinery in a way that snatched away the rights it potentially guaranteed to the working class. These conditionalities also included setting up dispute resolution processes in international trade deals which tone down the obligations of the multinational companies while placing the poorer countries at risk of the acts of the companies, be it the consequences of pollution or of the irresponsible and extractive appropriation of profits, emanating from these deals.

 

Given the control that the US as a superpower had in world politics, it meant clipping and challenging this power, to pave way for rehauling the conditionalities and the determination or writing off of debt, by restructuring the global financial institutions. So BRICS was precisely the formation well poised to counter US control in world politics and bring to the table the framework of equality, solidarity, mutual development and cooperation, in realising a new world vision of development.

 

For this, it was and is necessary to look at development from the lens of the peoples of these countries who had the experience of development propagated by the superpowers which, for instance, marginalised their agricultural and industrial sector to bolster the multinational company-led agricultural and industrial sector. It was necessary after hearing out the voices of the excluded to envision a new architecture for the international financial institutions, that is appropriate to the needs, realities and aspirations of its people, repeat, its people, not its leadership and its elites.

 

Initially these countries did try to forge synergies in the areas of environmental and disaster management, in pharmaceuticals, metallurgy, biotechnology and tourism. But as these synergies were being forged, these countries were also rising as powers themselves, who were replicating the same styles of power that they set out to counter with the grouping as BRICS. However these are countries with a robust civil society. Will people push their countries to stick to the initial agenda of BRICS for a new equitable world order?

 

Pertinent questions are being asked such as: who will interconnectness assist?, how can we harness our existing legislation to address illegalities or criminality without imposing draconian legislation to stifle political dissent and create hype against the countries’ neigbours in the name of counter-terrorism? How can these countries cooperate in dealing with trafficking? How will the New Development Bank proposed by BRICS countries be different from the International Monetary Fund or World Bank, in a way that their loans can reach those countries and people who most need them and not breed big time bank defrauding violators who squeeze finances as they enjoy a flamboyant lifestyle and flee the country? How will energy be harnessed or industrialisation be effected so as to be inclusive? How will gender  bias, casteism and differences on the basis of class or ethnic origin not be reinforced in the new vision? Will they break bread with Palestine again, and be the staunch opponents of illegal occupation of Palestine that they once were?

 

So that they set up an ethic where peace is not forged by illegal occupation? So that cooperation, rather than destructive competition and war, are the planks of development that ensures basic needs of food clothing and shelter and affordable and accessible health services and education to the entire citizenry of the world in the new world order? So they do not do unto other underdeveloped or developing countries what they did not like developed countries doing to themselves, so that they do not do to the people on the margins within their own countries what they did not like the developed countries doing to them?

 

(First published in O Heraldo, dt: 8 September, 2016)

When Transgenders Organise

By ALBERTINA ALMEIDA

 

An organisation, possibly the first, of transgenders, was recently established in Goa. If one carefully listened to the voices of the persons from the community, the issues were typical – difficult to get a house on rent, difficult to access hospitals and clinics, a dehumanizing gaze, harassment from the police, lack of decent job opportunities. “When we go to a hospital, which ward do we get admitted to – female ward? male ward?”, was a poignant question asked.

 

Often, many of us have ridiculed transgenders, simply because we failed in recognising the humanity of transgendered persons. If you have travelled by train, transgendered persons are a familiar sight, seeking alms and heaping blessings if you oblige and cursing you if you don’t. Can you blame transgenders for this conduct, when it is one of the scarce avenues of acceptance, legitimised in Hindu religious texts? It is that quaint kind of recognition that cuts both ways, where recognition comes with the price of outcasting and minoritisation.

 

The other avenue is the tradition of transgenders being invited for blessing the wedding couple and the new-borns. There is a conditioning that if one does not give the transgenders enough bakshish, they will curse you. So for the fear of their wrath they are given some token money. The hankering for higher amount of bakshish is considered part of wedding ceremonies. Such token integration does act like a relief where at all other places they are othered. But even this token integration in society is problematic because the weddings and birth ceremonies are the very events that transgenders cannot otherwise participate in.

 

Then again, other workplaces do not offer jobs to transgenders because of misconceptions about their capacities, as they do not fit into the binaries of male and female. It is convenient to maintain a dominant workplace aesthetic that simply sweeps what it dislikes under the carpet. Transgenders indeed do not fit into those binaries. Why should they? Why should the world revolve around binaries?

 

By now, the Supreme Court has recognised in a judgement pronounced by it in a case filed before it by the National Legal Services Authority (NALSA) – that transgenders have a different gender identity than male and female, and must enjoy all legal and constitutional protection. Further, the Apex Court has also left it open to transgender persons to identify themselves as male or female, as per their sense of association, if they so choose. The Supreme Court has in fact called out society’s morally failure by its unwillingness to contain or embrace different gender identities and expressions.

 

The Supreme Court has directed that the Centre and the State Governments should take steps to make transgenders feel a part of society and to treat transgenders as socially and educationally backward classes of citizens and extend all kinds of reservation for admission in educational institutions and for public appointments, besides framing social welfare schemes for their betterment. The Governments are directed to take proper measures to provide medical care for transgenders in hospitals and also to provide them separate public toilets and other facilities.

 

Needless to say, like men and women, transgenders also have various other identities that determine the course of their lives. This means that transgenders from depressed castes, or economic backgrounds face double victimisation because of these other axis of marginalisation, and transgenders from privileged sections of society face an intersection of privilege and disadvantage.

 

Hence, building alliances with struggles for housing rights, struggles for appropriate and sensitive health care, becomes critical as a way of expressing disapproval over the core politics of discrimination, exclusion and inequality for exploitation and oppression that informs the State’s and society’s attitudes.

 

For, if housing per se becomes difficult and inaccessible, because of large areas, often forcibly acquired and exclusively appropriated for gated communities, a battle for housing rights of transgenders will have no meaning, when the very retention in Goa of basic housing, is made difficult. This holds true for working people’s struggles as well. If workers’ rights and the mechanisms to access these rights do not stay strong, then this further undermines and disempowers workers who bear an additional identity on the margins, such as transgenders.

 

If the fundamental right under Article 19 (1) (c) of the Constitution of India of forming cooperatives, is denied to any section of the population, as has presently been the case with tribals at Caurem seeking to form a mining cooperative, that is a situation that bodes ill for all marginalised sections including transgenders, who can also be beaten with the same stick.

 

This also works conversely, calling for various other socio-political movements to build alliances. If a transgender is subjected to police harassment or torture in custody, and the same is justified with a perspective that the transgenders deserve it, then that opens the pandora’s box for police harassment and torture in custody, to be justified in certain circumstances. If a transgender is subjected to discrimination and harassment at the workplace, and the same is ignored, this is the slippery slope down which discrimination begins to entrench itself and gets justified in all spheres.

 

It is time that the State is held accountable for taking the lead in doing away with binaries in true spirit – both by adding another column of ‘other’ in the gender column and by having proactive policies which embody the spirit of inclusion and non-discrimination.

 

(First published in O Heraldo, dt: 21 April, 2016)