It’s raining drones

While the first predator drone attacks by the by the CIA of the United States (US) occurred in 2004, the first official report of the attacks was submitted to the UNHRC only in 2009.

Both the 2009 report and the 2010 report by investigator Philip Alston questioning the legality and morality of the predator drone attacks, inter alia, object to use of drones in Pakistan as being outside defined war zone and to CIA handling said attacks instead of the military. The attacks have been criticized as lacking accountability to international norms, breaching sovereign immunity and lacking proportionality. The report also envisages the consequences of this interpretation of ‘ self-defense’ applying universally.

The UNHRC rejects the self-defense arguments of Bush and Obama administrations but ultimately refuses to finalize the legality of the attacks. The need for a new legal paradigm to confront terror groups does not justify ad-hoc killing campaigns where the President of one nation shall be allowed to brand his victims in a secret court that is not accountable to the rest of the world. While attention from the UNHRC has lead to the CIA employing smaller, more accurate missiles in their drone attacks to minimize collateral damage and civilian casualties by reducing the physical target area, the continuing trespass by predator drones is cause for umbrage. The UNHRC previously widely criticized of prejudice against Israel has lent itself once again to criticism of the opposite kind – that of shielding and yielding to a developed nation.

Of Humanitarian Intervention and possible justifications

Sovereignty never amounted to an unquestionable right of Governments to do anything they pleased within their recognized space. Where a tyrant should inflict upon his subjects such treatment as no one is warranted in inflicting, other States may exercise a right of Humanitarian Intervention. This right is based on the natural law of societas humana – the universal community of humankind. States owe a duty of humanitarian rescue to the citizens of States whose Governments fail to protect basic Human Rights including security of ethnic groups from mass murder and genocide.

Humanitarian Intervention is reconciled with the United Nation‘s regime of jus ad bellum. The phrase ― ‘or in any other manner inconsistent with the purposes of the United Nations’ permits unauthorized humanitarian intervention where the Security Council fails to realize one of its chief purposes – the protection of human rights.

The security system of the United Nations was premised on a consensus between the permanent members of the Security Council. Lamentably, that consensus dissolved early in the history of the organization. Thereafter, part of the systemic justification for the theory of Article 2(4) disappeared. Therefore, if the Security Council fails to end massive human rights violations, states may do so without authorization.

Arguendo, Article 2(4) does not forbid the threat or use of force simpliciter, it forbids it only when directed against the territorial integrity or political independence of any State. Thus, if a genuine Humanitarian intervention does not result in territorial conquest or political subjugation, it is distortion to argue that it is prohibited by Article 2(4).

The principle of non-intervention has never been a tenet of customary International law. On the contrary, there has been a continued existence of a customary right of unauthorized humanitarian intervention. State practice in the nineteenth and early twentieth centuries established such a right; a right that was neither terminated nor weakened by the creation of the United Nations. This right remains so secure that only its limits and not its existence is subject to condition. Moreover, the sparing and selective use of the doctrine is no barrier to its being customary international law. In addition to the number of pre-charter humanitarian interventions, focusing on the numerous post-charter interventions on humanitarian grounds – the United States in the Dominican Republic (1965); India in East Pakistan (1971);Vietnam in Kampuchea (1978-93);Tanzania in Uganda (1979); ECOWAS in Liberia (1990-95) (which was not authorized by the Security Council but was subsequently approved by the United Nations); Britain, France and the United States in Iraq (since 1991); ECOWAS in Sierra Leone (since 1998); and NATO in Kosovo (since 1999) – is evidence to its continued existence and general observance- two recognized attributes of binding international norms.

If provision of humanitarian assistance is to escape condemnation as an intervention in the internal affairs of a state, it must be limited to the purposes hallowed in practice, namely to prevent and alleviate human suffering, and to protect life and health and to ensure respect for the human being without discrimination to all in need.

References:

Designer do or Designer don’t?

Dr. Sanjay Makwana, a pioneer in the field of IVF in India, delivered a guest lecture on assisted reproduction and surrogacy at National Law University, Jodhpur today. He spoke on the technicalities of the procedure giving a practitioner’s perspective pertaining to ethical, moral and legal issues.

Dr. Makwana delved into the practicalities of the donor-donee relationship in protection of anonymity of donor. In India, the concerns of the donee couple seeking a donor for assisted reproduction or the commissioning couple in case of surrogacy stretches to physical characteristics, ethnicity, religion and caste of the donor/surrogate mother. The medical practitioners try their best to match the couple’s parameters with the choice of donors and surrogate mothers available. Since awareness of egg donation and sperm donation is as yet low in India, there are very few instances where the donor is from the family itself.

Parents opting for ‘designer babies’ to fashion their baby for cosmetic purposes is modern technology’s manifestation of an old-fashioned parental impulse . While the very idea of such artificial selection in order to engineer the physical attributes of the baby is in itself highly disturbing, the trend of couples in India including religion and caste among their parameters and the general acceptance of the same is a mammoth social debate waiting to burst upon the scientific, social and legal community in India.

Especially so when Section 34(7) of the Assisted Reproductive Techniques (Regulation) Bill & Rules – 2008 specifies :

“Individuals or couples may obtain the service of a surrogate through a semen bank, or advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.”

There also exists the issue of homosexual couples approaching clinics for surrogacy arrangements. Medical practitioners can deny providing couples with assistance when they believe, after counseling; the couple is not ready for reasons whatsoever. There is no uniform code of practice governing such discretion. A practitioner in Rajasthan may refuse to do what a practitioner in Karnataka might – all solely on the basis of individual ethics, morals and social outlook. Therefore, while many clinics offer services to homosexual couples, many refuse to provide services not only to homosexual couples but also to couples in live-in relationships.

As per the ART Bill, a gay couple cannot have a child. A gay person can do so. Marital status of a gay individual therefore is irrelevant unless the couple plans to adopt the child, in which case the relevant laws would apply.

Somewhere amidst this web of caste-specific babies and the institution of marriage being a qualifying factor for assisted reproduction, are deeper issues. Firstly, that the lack of adequate regulation leaves the medical practitioners to play God by giving them the unbridled discretion to refuse assistance. Secondly, the proposed Assisted Reproductive Techniques (Regulation) Bill & Rules – 2008 which is expected to regulate these issues is rivet with many inconsistencies, fallacies and in many instances has been criticized as a purely legal endeavor that has given practicality a backseat.

The need of the hour is a comprehensive regulation that instead of restricting the doctor by placing obstacle courses in his path provides a mechanism that facilitates the procedure. For in this battle between the law maker and the medical practitioner, the heads that roll are that of the infertile couple.

Realization of justice and political civilization

“ In determining a nation’s rank in political civilization, no test is more decisive than the degree in which Justice is defined by the law is actually realized in its judicial administration.” – Professor Sidgwick

This test could not possibly be the decisive test to determine a nation’s rank in political civilization. If  there was this hypothetical country and in this country an ‘eye for an eye’ concept of justice was the definition given by the law and the judicial administration followed this to the boot, it might still not be an accepted notion of justice in other parts of the world. So in fact, instead of helping your nation’s rank in political civilization , it would actually work to your detriment.

One explanation is possibly that the term ‘ranking’ does not mean ‘how acceptable is the message?’, it means ‘however unacceptable the message may be, how good is the administration of your state? How clearly is your message transmitted?’

But then again, Judicial Administration primarily refers to the Justice Delivery System. Now, what is Political Civilization? It simply put in a few words, means, One Man vis-à-vis All Men! What you “realize” in Judicial Administration is a failure of the Political Civilization, that is, checking and curbing deviance from the concept of Justice as is defined by law. So, as per Sidgwick, to measure Political Civilization there should actually be politically uncivilized activities! How can that be? Because, a nation where there are politically uncivilized activities can not be termed to be a political civilization. Can it be? Further, a nation which does not honour the basic human rights, would be the nation having maximum degree in which Justice (as defined by their law) is actually being realized in its judicial administration, because, there would be nothing to “realize” as there is no wrong in a complete chaotic scenario also; since, wrong does not amount to injustice there! That is something not approved by the comity of nations, but still, on paper, with simple arithmetic, such nations would top the Most Politically Civilized Nations List. Does that mean justice done on paper should define political civilization? “

P.S. Thanks to Divya Srikanth and Sargam Jain for clarifications on this concept.

What is 49-O all about?

There is an email forward titled ’49-O’ that has been doing the rounds of late.  The email fwd which most of us have been getting does not give complete information and is misleading. Here  is the position on 49-O as it is today.

What the email forward says :

It states if you don’t trust any of the candidates standing for election, then you have a right to convey to the presiding officer, that you don’t want to vote. It has been suggested that if enough people invoke Rule 49-O (more than the number of votes cast for any of the candidates), then there would be a re-poll.

Truth/Present position in law :

Although Rule 49-O, stated in the The Conduct of Elections Rules, 1961, affirms that the person’s right not to vote would be recognised in the total vote counting process, in no case would there be a re-poll.

As of now, what rule 49-O will do is register the person’s signature, or thumbprint. This would also require the voter to reveal their identity, which goes against the system of secret ballots.

And even if 49-O votes are more than the winning candidates’ votes, it would not negate the result.

Concluding remarks :

There is no judgment as yet on the implications of 49-O toward the upcoming elections, and the barring of candidates from a re-poll. Hopefully in the years to come, 49 – O will be adopted by the Government as it is mentioned in the email fwd. But for now, that is not the case.

DV Act – State sponsored terrorism?

The Domestic Violence Act is one among the recent women-favoring one sided law that has been passed in the recent times – The Protection of Women from Domestic Violence Act 2005.

Primarily meant to provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives, the Act extends its protection to women who are sisters, widows or mothers. Domestic violence under the Act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

Feminist organizations have unequivocally and unanimously hailed the implementation of the Domestic Violence (DV) Act in India. They claim that this law will empower victims and protect them from abuse. Most people would agree to their stance as victims need to protection from abuse in a domestic setup.

However, a careful analysis of the DV Act reveals that under the ploy of “women and children welfare”, this law is yet another misguided attempt to enact legislation to grant women legal supremacy over men and to create a society where men are deprived of their rights.

The Act is overwhelmingly gender biased in favor of women

The DV act singles out men as perpetrators of domestic violence and assumes that only women are victims. Only a woman can file a complaint against her male partner. A man, who is a victim of domestic violence, has no rights under this law. Endowing such sweeping legal powers upon women while at the same time withholding protection to male victims is tantamount to systematic legal victimization of men. In the western world, the domestic violence laws are gender neutral and provide protection to the victims, both men and women. The fact that the Indian version explicitly prohibits any male victim from seeking relief under this Act defies all logic and is beyond comprehension.

The potential for misuse of the Act is astounding

The Act lends itself to such easy misuse that women will find it hard to resist the temptation to “teach a lesson”. A similar trend is already being observed in the case of anti-dowry law (498A of Indian Penal Code), which is being misused to such an extent that the Supreme Court has termed it “Legal Terrorism”.

If the wife demands money and the husband refuses to pay, he could be imprisoned under the pretext of economic abuse. Interestingly, if the husband is the one asking for money, he can be jailed for that too. Though the man is liable to pay the rent for the shared accommodation, the woman retains the right to residence irregardless of the existence of any legal right. The unclear definition of ‘Verbal Abuse’ has only furthered the scope of misuse of this Act.

The fact that the complaint by a woman will be treated, prima facie, as “true and genuine” opens up a whole new realm of possibilities where innocent men will be accused and implicated in false cases, just because they refuse to give in to her unreasonable demands.

The counter arguments generally are as follows :-

i. The number of misuses will be very low
The objective of any law should be to punish the guilty and protect the innocent. The persecution of innocents cannot be justified in any circumstances. As is the case with 498a, this law will be heavily misused in urban India.

ii. Only unhappy women file complaints – the ‘No smoke without fire’ approach
This stops short of saying that the man exists at the mercy of the woman. If the wife wants to kick out old parents from home or wants to pursue an affair and should the man dare to object, she can get him incarcerated with alarming alacrity. Any law that forcefully subjects a section of a society to conduct as per the pleasure of another section is oppressive.

iii. There are other provisions to deal with the misuse of this law
The fact is that there are other legal provisions to deal with domestic violence as well. If a strict law is made for a specific purpose, then the provisions for dealing with its misuse should be in the law itself.

The definition of domestic violence is too expansive.

The all-encompassing definition of domestic violence and some terms (insults, name calling) are extremely subjective and too wide. The radical feminists claim that 70% of women in India face domestic violence which comes as no surprise as even insults are considered domestic violence. Interestingly, they are mum on how many Indian men suffer domestic violence under the same criteria. This law strikes at the very foundation of marriage by promoting intolerance and litigation for petty domestic disputes. By including minor differences within the scope of the definition of Domestic Violence, this Act only trivializes the very issue it seeks to bring into prominence.

The law in its current form is grossly inadequate to tackle the problem of domestic violence. It imposes a lot of responsibility on men, without giving them rights. On the other hand, it gives lots of rights to women without requiring them to be responsible.

At the very minimum, the Domestic Violence Act, 2005 should be made gender neutral. Also, provisions for stringent punishments need to be incorporated into the law to prevent misuse.

When a law instills sinister fear in the heart of the innocent, when such a person is intimidated and fears punishment for a crime he did not commit, the law ceases to be a law. It becomes state sponsored terrorism.

Adolescent on board

When your neighbor’s kid learns to drive a car at the age of fourteen and whizzes around the layout shaking Gulmohars and Grandmas alike, the first reaction from his parents is that of unbearable pride.

When recently, an unqualified minor, a mere 10th standard student, son of gloating doctor parents performed a cesarean on a patient, it was first reported in the media as an attempt to the Guinness book of world records. When the Medical Council rightly took the parents of the kid to task, the argument of the defense attorney was that the Medical association was “jealous” and was hindering their son’s progress. Parents of underage children are widely at fault not only in the above instance but also where children supposed to be running on playgrounds run amok with cars, driving drunk.

With increasing number of road accidents involving vehicles driven by under-age boys (of course without a license), especially ones like what happened on the Gurgaon expressway where three teenagers too drunk to care ran over an under-age boy, I stand by what the Union Minister Renuka Chowdhary had to say ” The Road Transport Ministry should amend the law and bring parents into ambit to deal with such cases. The license of the father, for instance, must be revoked to keep a check on such incidents.”

After all, there is a reason why they are not allowed to vote and drink and drive on roads.