India had become one of the most popular global destinations for commercial surrogacy by the year 2015, providing standardised in-vitro fertilisation technology and English-speaking doctors for cheaper rate especially to couples seeking surrogacy from abroad. Surrogacy agents linking clinics in India with prospective parents abroad had mushroomed all over the world. However, it was only during my field work in 2009-10 that it became evident to me that intended parents from abroad were coming to India mainly because surrogate mothers had lesser rights over the child and over their own bodies as compared to Canada, USA and UK and also because of the unregulated manner in which surrogacy was practiced. I conducted my research in two clinics in India, one in a smaller town in Gujarat with three surrogate homes and one without a surrogate home in Ahmedabad between 2009 – 10. I interviewed five intended parents, 13 surrogate mothers, and five medical practitioners. Among these, I closely followed five surrogate mothers throughout their pregnancy (from embryo transfer to post relinquishment) and five intended parents using participant observation method and hence could interact intensively also with their spouses and family members.

Most women in my study were living on the edge of poverty wanting to provide for their children’s education, to pay for a dowry, marriage or sickness in the family, to buy a house and to avoid slipping further into poverty, while others were involved as surrogate mothers to provide their family with immediate basic human needs and adequate food. One important ethical concern of this practice is the development of biomarkets, in which certain bodies become more bioavailable within the existing global ornational structural inequalities. As Nepal, India, Thailand, Mexico1 and Cambodia limited or proposed a prohibition on commercial surrogacy, the practice has moved to Laos, Malaysia, Kenya, Nigeria, Ghana, South Africa, Argentina and Guatemala. This pattern of globally moving markets that is based on exploitative capitalisation and the control over human reproductive biomaterial2 by the rich using global inequalities and vulnerabilities is a form of recolonisation of women’s bodies and labour. It also raises globally relevant questions of geneticisation, alienation of the gestational role, human and child rights violations, trafficking and reproductive injustice. These markets raise ethical questions of exploiting the needs of the poor particularly where disadvantaged participants enter into unjust contracts, its relevance to informed consent, unequal distribution of health resource, unfair distribution of benefits, violation of good medical practices, and commodification of women and children. Such concerns are evident not only in the transnational movement for surrogacy but also in similar biomarkets such as gamete donation, organ donation, trafficking and prostitution. Along with the booming surrogacy market in India was a growing impetus for illegal activities and the nexus of trafficking young girls into this business. It has been noted that the same well-established nexus that has been used for trafficking young girls from poorer regions in India into domestic work and sex labour feeding into urban centers was also being used for surrogacy. The Government of India proposed prohibition of commercial surrogacy in Sept 2016, because of the deaths of surrogate mothers and egg donors, custody battles for children, abandonment of (disabled) children, exploitation of poor women and trafficking of women and teenaged girls for surrogacy. However, there are some continued concerns and loopholes in the new Surrogacy (Regulation) Bill 2016. This article raises some of these concerns with the present regulation of altruistic surrogacy in India. Theoretically, altruistic surrogacy means that the surrogate mother provides all the services as in commercial surrogacy, but without a remuneration. However, in practice there is evidence of several forms of money transfers.  In a TV debate in India, Dr. Nayna Patel noted “nobody would be ready to do surrogacy for someone else without money, among the 1120 babies born in my clinic through surrogacy, only 25 were within the family and they were not for free” (Time 2015). Presently India is following the British system in allowing altruistic surrogacy. While the entire globe should follow Sweden towards a complete prevention of surrogacy on the grounds of violation of women’s bodily integrity, human rights violation and non-conformance with reproductive justice. The altruistic surrogacy continues to be based on the necessitation of surrogacy as a need to solve infertility and naturalises genetic ties as the most desired form of child bearing and rearing. The surrogacy practice hence promotes deeply embedded pronatalist, patriarchal, racial and ableist hegemony.

The Global Indian Surrogacy Industry

Many intended parents poured into India seeking surrogacy even from countries where surrogacy was permitted or altruistic surrogacy was allowed such as Canada and UK. It is estimated that 60 – 80% of all surrogacy pregnancies in India were commissioned by foreigners (Bhalla and Thapliyal 2013). According to Dr. Sudhir Ajja from a Mumbai-based fertility bank that has produced 295 surrogate babies, he catered to 90% overseas clients and 40% same-sex couples, since it opened in 2007 (Bhalla and Thapliyal 2013). Dr. Nayna Patel boasted of 500 babies born until 2013 through surrogacy, two-thirds of whom were for foreigners and people of Indian origin living in over 30 countries abroad (Bhalla and Thapiyal 2013). Hence, surrogacy practice, just like the garment industry, is a specific form of classist and racist exploitation of reproductive labour directed at the vulnerabilities of women primarily from the Global South catering to demands in the Global North.

Intended parents were coming to India primarily because the surrogate mothers had minimal rights over their body or the baby, these women are also willing to abide by all the rules imposed by the clinic and the intended parents in their desperation to bring their families out of poverty. The clinics in India were drawing on this steady supply of socio-economically disadvantaged women willing to become surrogate mothers. Typically, the surrogate mothers have lesser employment opportunities with lower educational qualifications and were employed in the informal sector such as: domestic work or garment factory workers with no form of employment security or allowances. This situation meant that they had lesser bargaining power to fight for their rights within the surrogacy process as well. Surrogate mothers in India had to sign off all rights over the child in the contract. Surrogacy was practiced in a manner in which women had to sign off all rights over their bodies during the surrogacy process. Hence the surrogate mother could not question any medical intervention on her body such as selective abortions and caesarean sections but also social interference such as mandatory rules to stay in dormitories. Moreover, the women were also vulnerable due their substandard health status making them susceptible to maternal mortality and morbidity. There were violations of good medical ethics, clinics were also involved in several illegal activities trying to take advantage of the loopholes and ambiguity in the law. Women were detained in dormitories for almost one year, from the embryo transfer to the delivery and also post-delivery to breastfeed and provide nanny care according to the requirements of the intended parents or the clinic. In these dormitories, they were kept under strict conditions restricting their movement and meeting with their family members and children, rules on food intake in order to increase their weight and limits on the kind of music they could listen to and additionally were made to breastfeed the children and provide nanny care after birth. The surrogate mothers were paid according to their weight gain during pregnancy and their final payment depended on the birth weight of the child or preferred sex of the child. It is a concern and challenge how the present Bill will be able to monitor these known illegal practices within the surrogacy industry in India.

There were severe violations of good medical practices in the clinic in Gujarat. Although legally only 3 embryos were allowed to be transferred into the surrogate mother’s womb, up to 5 embryos were being transferred and in-utero selective abortions were conducted if more than two embryos progressed into successful pregnancies. Invariably all the deliveries were forced cesarean sections; even if the surrogate mothers developed labor pains they were rushed to the operation theatre for emergency cesareans. After several months of nanny care and breastfeeding, the surrogate mothers were suddenly separated from the children causing severe psychological harm. While for the intended parents, this was a justified move as they felt an ownership right over the child(ren) based on their genetic link or as commissioners of the surrogacy contract, the surrogate mothers perceived themselves as a mother based on the cultural context and the child as a sibling to their existing child(ren). The baby was also on sale with the payment based on the weight or sex of the child, every extra child in twins or triplets were priced extra, not double or triple but on a concessional rate. In essence, as I have mentioned in my book titled ‘A Transnational Feminist View of Surrogacy Biomarkets in India’, surrogacy in India had turned into a “bazaar where everything about women’s reproductive capacity and the children born has been marketed and priced; the woman’s body parts, her breast-milk, her labour as a nanny, the number of child(ren) born, the weight of the babies, the gender/(dis)abilities of the child and even the surrogate mother’s caste, body weight or religion was priced” (Saravanan 2018: pg. 6).

Childlessness is socially constructed as a malady, arising from patriarchal hegemony of social norms pressurising, especially women, to use ARTs. Women in different cultures face a diminished sense of identity and social standing in the community on experiencing infertility and are pressurised into using IVF technologies as a solution (Donchin 1996). This myopic social and medical focus on women’s body to solve infertility and the perpetuation of objectification and commodification of women’s bodies is to fulfil patriarchal and commercial ends (Raymond 1993; Corea 1985; Harding 1991). Infertility is socially stigmatised and reinforces pronatalist and heteronormative identities resulting in pressures to conform with it. Genetic selection identifies the gene as being central to human personhood, identity, and social relationships. When most court cases hand over the custody of the children to intended parents, based on the genetic determination of parenthood, despite a request of custody by the surrogate mother, it reiterates geneticisation. The significance given to geneticisation and genetic essentialism, the meanings given to genetic links through the ownership over the gametes and gestation, the gestating body, and the babies born, and such naturalisations of filiality, bring us face-to-face with the memories of nineteenth-century raciological biology that haunts rhizomic theories of hybridity. Geneticisation reinforces the concepts of race and ableism encouraging social differences and domination. During the surrogacy pregnancy geneticisation plays an important role in controlling the surrogate mother’s body and after the child is born, in prioritising the parenthood of intended parents while downplaying the gestational role of the surrogate mothers. I have suggested possible inclusions in the Bill that gives optional guardianship to surrogate mothers.

Ethical Concerns on Altruistic Surrogacy

Allowing altruistic surrogacy continues to raise ethical questions on altruistic surrogacy, extra-territoriality, selective prohibition and the possible ease in which NRIs and affluent people in India will be able to continue choosing surrogacy as an option both in India and abroad for fulfilling their childbearing desires. The Surrogacy (Regulation) Bill 2016 permits altruistic surrogacy in India if the surrogate mother is a close relative. Altruistic surrogacy has been considered a better approach to reduce commercialisation. However, altruistic contracts raise ethical questions of agency especially within families in India. It also has elements of structural inequalities and previous experience from other countries, like the UK, reveals that considerable amounts are transferred in the name of medical bills in this process. Other scholars have noted that affluent families can coerce or compel their poorer relatives or maids to engage in altruistic surrogacy for them which can deepen exploitation (Rao 2015). Ranjeeta Lal, a heart patient was forced into surrogacy by her in-laws for her elder sister-in-law to compensate for the less dowry she had brought into the family (Jaipuriar 2014). A woman in my study became a surrogate mother to be able to pay off dowry for her husband’s sister. Altruistic surrogacy that allows surrogacy within close family members glorifies family reinforcing inequalities. I have also heard direct reports of people bringing their domestic maids or any other poor acquaintance for surrogacy claiming that they are their close relatives. Regarding consent, although the bill restricts coercion of women into surrogacy, it would be difficult for women to prove it legally especially after signing the consent form. Altruistic surrogacycan exploit women who may be dependent on other family members such as the first famous surrogacy case of mother dependent on her daughter and carried her baby in Anand to become the first grandmother-mother to the grandchild. It is well known worldwide that most forms of abuse take place within close families and friend circle. It is known that women in India tend to put other’s need and priorities before their own, which was evident among surrogate mothers in India who wanted to sacrifice their lives for the sake of the family (Saravanan 2013). Feminists criticise altruistic surrogacy as a ‘compassion trap’ that glorifies the surrogate as a generous-loving woman offering a gift of love to lonely-childless couples.

Moreover, altruistic surrogacy also involves money transfers. Evidence from other countries, like the UK, reveals that considerable amounts are transferred in the name of medical bills in this process. UK was one of the main source countries in the surrogacy markets of India because the surrogate mothers in India have lesser rights over the child. Moreover, it has also been observed in countries that allow altruistic surrogacy that affluent citizens tend to move to other countries for accessing surrogacy. Extra-territoriality is another important ethical concern. These laws have been implemented in some countries imposing strict rules on citizens who travel abroad for fertility treatments not permitted in the source countries. The law in the source country decides about the citizenship to children born through surrogacy outside their jurisdictions and the parentage of the individuals who have travelled abroad to have these children. The countries which do not have clear extra-territoriality laws have been criticised for protecting their own citizens while allowing vulnerable citizens from other countries to be exploited.The global pattern of surrogacy that is moving to Africa and South America after many Asian countries banned commercial surrogacy is a clear indication that global inequalities play a major role in this biomarket. India hence needs to tighten their extra-territorial laws to ensure that there is no scope for affluent couples to move out of India for surrogacy and return with children.

Corea (1985) strongly objected to surrogate motherhood as it creates divisions among women referring to this phenomenon as “segmented reproduction” that divides women into child-begetters, child-bearers, and child-rearers. She critiques this segmentation as if it were a mode of production of genetically superior women begetting embryos, strong-bodied women bearing the babies to term, and sweet-tempered women rearing the infants to adulthood. Colen’s (1995) concept on stratified reproduction is similar to Corea’s reference as it examines reproductive labour of bearing, rearing, and socialising children that may be differentially experienced, valued, and rewarded according to inequalities of access to material and social resources structured by hierarchies of class, race, ethnicity, gender, place, and migration status differences, aspects of which promote or interfere with socio-economic and political status. Surrogate motherhood is not a technique in itself, but a practice that technology exploits within the already existing hierarchies and hegemonic systems. The technologies that were used earlier on one’s own body is now used on another person’s body violating their freedom, dignity and integrity. It is likely to put another woman (the surrogate mother) through social stigma, psychological challenges, violation of her bodily integrity, and also put the surrogate mother’s health, freedom, liberty and even life at stake. Hence, surrogacy cannot be considered a socially justified practice and certainly should not be considered a constitutional right. Reproductive justice aims to reduce inequalities and not to use one person’s vulnerability to fulfil another person’s reproductive liberty.

The Surrogacy Bill 2016, Human Rights and Reproductive Justice

Despite the above-mentioned points, if India continues to follow the British system instead of the Swedish pattern, I would suggest some possible changes in the present Bill. The primary reason for the proposed ban of surrogacy in India was because there was exploitation and commodification of women and children. It is commendable that India is proposing to prohibit commercial surrogacy and the Bill has several aspects that aim at reducing exploitative elements in the practice. However, because surrogacy itself is inherently an exploitative practice the Bill needs to aim at reducing the ease at which surrogacy becomes an option to intended parents. Since surrogacy and other IVF possibilities are now easily available to the affluent in India, the adoption rates are declining rapidly (CARA 2018). The intended couples should be able to provide proof of: their inability to conceive, to have tried IVF on themselves wherever applicable and proof of having tried adoption as an option before they can choose surrogacy. Even medical clinics are meant to assess the reproductive capacity of the couple, suggest IVF wherever possible followed by suggesting adoption before the intended parents can choose surrogacy as an option. In my study, there were couples completely able to conceive and yet had opted for surrogacy. To some extent, this may also address the ease at which NRIs are coming to India for a short while and returning with children born through surrogacy. Hence, a detailed review of the Surrogacy (Regulation) Bill 2016 reveals that it has left some ambiguities and omitted certain other important elements. It is very important that these ambiguities and omissions are addressed before the practice takes over some of the existing loopholes.

A great deal of attention needs to be paid to the conditions of the surrogacy contract and to address the questions of exploitation once the contract has been made. The rights of the surrogate mother during the surrogacy; her right to eat and perform all her normal day-to-day activities, her right to remain free from any form of detainment or conditions by the doctors or the intended parents unless required for medical reasons and her right to choose the kind of contract. The surrogate mother should not be restricted from engaging in her non-reproductive aspirations during the pregnancy. The insurance support should extend into post-partum as it is known that most maternal complications occur during this phase. It is known that widowed and deserted women were getting involved as surrogate mothers, there is no clarity in the Bill on this.

Within the regulation, there should be a possibility of choosing an open or closed contract. An open contract is one in which both the surrogate mother and the intended parents desire to continue their relationship after the birth of the child. In case of the close relatives it would more often than not that the surrogate mothers will be known to the intended parents and would like to have an open contract for a continuous relationship. While the closed contract is one in which both the intended parents and the surrogate mothers are not obliged to engage in any further contact. Until now in India, the surrogate mothers were never asked their consent and a closed contract was enforced on them. The present Surrogacy (Regulation) Bill 2016 also follows the same pattern. Chapter I, 2 (zb) says, “Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth” (Minister of Health and Family Welfare, Bill No. 257 of 2016:3). The Bill should include a clause that the surrogate mother can become a legal guardian of the child if she desired to. Even if the custody of the child is handed over completely to the intended parents it should be done after the birth of the child and with full consent of the surrogate mother. Even if she signs a contract of closed surrogacy, she should be allowed to revert into an open surrogacy after the child is born. Requiring a surrogate mother to decide even before pregnancy about her parenthood expressions, during and after birth, represses any feelings that may possibly emerge towards the child during pregnancy or childbirth, and also giving others the power to hold her guilty if she diverges is ‘alienation’ (Pateman1988). As questioned by Anderson, “What if, despite her initial intentions, she finds herself coming to love her own child?”  (Anderson 2000: 27).

International Coalition for Abolition of Surrogate motherhood supported by hundreds of organisations calls for recognising surrogacy as a human rights violation on the grounds of: gender equality, emancipation and autonomy of women; legal access to abortion and contraception; equality between heterosexual and homosexual sexualities. This charter and coalition was formed after several conferences and events were held all over Europe starting from 2011. Apart from this, there is an important consideration of the human rights of children. The only right mentioned in the bill is the right of the child to be considered equivalent to the biological child of the intended parents. However, there is a surrogate mother who carried the child, hence the child should have the rights to know the surrogate mother. Surrogacy consciously creates a state of abandonment by denying the rights of the child to know his/her origin and the rights of the surrogate mother over the child, to know about his/her well-being and maintain a long-standing relationship. There have been children who have suffered as a result of not knowing their personal history.3 The Rome Petition asked for a procedure to be set up for the recognition of the new-born, which shall be consistent with the rules on the rights of the child, especially with Article 7 (1) of the Convention on the Rights of the Child, which recognises the right of the child to know his or her mother and, as far as possible, to be cared for by her (The Rome Petition 2017). Hence, keeping the child rights in view, surrogacy not only violates the human rights of women’s bodies but also of children.

In the garb of reproductive liberty, the surrogacy practice promotes deeply embedded pronatalist, patriarchal, racial and ableist hegemony. The reproductive liberty argument is limited to individual level and is hence inadequate in analysing the complete complexity of global inequalities. Applying the reproductive justice framework, I argue that surrogacy is likely to put the surrogate mother through multiple forms of indignity and injustice along with life risk and hence cannot be considered the intended parent’s reproductive right. Any form of individual liberty that seriously impinges another’s health and freedom, violates another person’s dignity, integrity or economic needs does not conform to the reproductive justice framework.

References:

Anderson, Elizabeth S. 2000. Why commercial surrogate motherhood unethically commodifieswomen and children: Reply to McLachlan and Swales. Health Care Analysis 8: 19–26.

BBC News, Thailand bans commercial surrogacy for foreigners, Feb. 20, 2015,http://www.bbc.co.uk/news/worldasia-31546717.

Bhalla, Nita, and Mansi Thapiyal. 2013. Foreigners are flocking to India to rent wombs and grow surrogate babies. Reuters, Business Insider. https://www.businessinsider.com/india-surrogate-mother-industry-2013-9?IR=T

CARA 2018. Adoption Statistics.Central Adoption Resource Authorities, New Delhi.Ehttp://cara.nic.in/resource/adoption_Stattistics.html. Accessed on 13th October 2018.

Colen, S. 1995. Like a mother to them: Stratified reproduction and West Indian childcare workers and employers in New York. In Conceiving the new world order: The global politics of reproduction, ed. F. Ginsburg and R. Rapp, 78–102. Berkeley: University of California Press.

Corea, Gena. 1985. The mother machine: Reproductive technologies from artificial insemination to artificial wombs. New York: Harper and Row.

Donchin, Anne. 1996. Feminist critiques of new fertility technologies: implications for social policy. The Journal of Medicine and Philosophy 21 (5): 475–498.

Harding, Sandra. 1991. Whose science/whose knowledge? Milton Keynes: Open University Press.

International Coalition for the Abolition of surrogate Motherhood 2018. http://abolition-ms.org/en/home/

Jaipuriar, V. 2014 ‘Dowry cry in surrogacy death – Woman’s brother files FIR, accuses in-laws of conspiracy’. 2nd October, The Telegraph, Jharkhand. https://www.telegraphindia.com/states/jharkhand/dowry-cry-in-surrogacy-death-woman-s-brother-files-fir-accuses-in-laws-of-conspiracy/cid/320485. . Accessed 14 Oct 2018.

Meta, Kong. 2017. ‘Cambodian Surrogacy Law due in 2018. The Phnom Penh Post, Phnom Penh, 11th August 2017, Cambodia.

MoHFW 2016.The Surrogacy (Regulation) Bill, 2016.Ministry of Health and Family welfare, Government of India.

Pateman, C. 1988. The sexual contract. Stanford: Stanford University Press.

Photopoulos, Julianna. 2015. US couple ‘trapped’ in Mexico following surrogacy law change, BIONEWS, May 11. http://www.bionews.org.uk/page_522610.asp. Accessed on 19th October  2018.

Raymond, Janice G. 1993. Women as wombs: Reproductive technologies and the battle over women’s freedom. San Francisco: Harper.

Saravanan, S. (2013).An ethnomethodological approach to examine exploitation in the context of capacity, trust and experience of commercial surrogacy in India, Philosophy, Ethics, and Humanities in Medicine, 8:10.

Saravanan, S. (2018) ‘A Transnational Feminist View of Surrogacy Biomarkets in India’. Singapore:  Springer Nature Singapore Pte Ltd.

Time. 2015. Outsourcing surrogacy. Red Border Films.YouTube.https://www.youtube.com/watch?v=N9FPiNc6-dI. Accessed  on 14th Aug 2017.

The Himalayan. ‘SC turns down petition seeking to allow surrogacy’, Kathmandu 6th January 2018. https://thehimalayantimes.com/kathmandu/sc-turns-petition-seeking-allow-surrogacy/

The Rome Petition. 2017. 2nd NGO European meeting on the abolition of surrogacy. 27th February. European Women’s Lobby: piazza di Monte Citorio, Rome.

1 Mexico prohibited surrogacy in Tabasco state (Photopoulos, 2015). In Nepal, The Supreme Court (SC) of Nepal has issued an interim order to immediately halt the surrogacy (The Himalayan 2018). Thailand banned commercial surrogacy for foreigners (BBC 2015). India has proposed a ban on commercial surrogacy since Sept 2016 with the Surrogacy (Regulation) Bill (MoHFW 2016).Cambodia has proposed a ban on commercial surrogacy (Meta 2017)

2 Human biomaterial refers to the child making industry that is based on biological material such as oocyte, sperms, stem cell, tissues, breast milk and the surrogate mother’s womb.

3  European Court of Human Rights 2017; http://www.echr.coe.int/Documents/FS_Childrens_ENG.pdf

(Dr. Sheela Saravanan is a Research Associate at South Asia Institute, University of Heidelberg, Germany.
She is the author of the book ‘A Transnational Feminist View of Surrogacy Biomarkets in India.’)

(This article is carried in the print edition of November-December 2018 issue of India Foundation Journal.)

Abstract

Much has been said, written and proselytised about the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the now renowned Vishaka vs. The State of Rajastan1 judgment of the Supreme Court. While the de-criminalisation of Section 377 of the Indian Penal Code may be in the news, it is important to examine welfare laws such as this which paved the way for our current legal amelioration.

This article seeks to examine this crucial legislation from a positive, objective perspective. However it is also important to note that law needs to be understood as a discursive process, both emancipatory and oppressive.

Introduction

Our country has affirmed its commitment to women’s rights at local, national and international platforms on several occasions. Towards this goal, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 received the assent of the President of India on April 22, 2013. It came into force on December 9, 2013.

However it is no secret that India is a complex and diverse democracy; and that despite its insistent advancement towards globalisation, many of its populace suffer from the historical and the pervasive malignance of the caste system, religion, the colonial legacy of ‘class’, skin tone and especially the subordination of women.

At present, life in our country is still a study of paradoxes. The juxtaposition of urban and rural areas is scripted by paradoxes relating to economic as well as societal position and gender. It is pertinent to discuss this as these paradoxes often impede the enforcement of this law.

It is also relevant to know that the current application and enforcement of the Act is preceded by cases of harassment prosecuted under the provisions of the Indian Penal Code punishing crimes committed ‘with the intent to outrage the modesty of a woman’ and the landmark judgement on the issue – “Vishaka and others vs. the State of Rajasthan”. Vishaka was the first judgement to define SHW in India, after which “Medha Kotwal Lele & Ors. v Union of India & Ors.”2 analysed the implementation of the Supreme Court Directives set out in Vishaka. The Bill for the current Act was enacted a month before the Apex Court’s decision in this case.  In a similar vein, it was the Justice Verma Committee Report following the unspeakable crimes against Nirbhaya that served as the final catalyst for the passing of this legislation on sexual harassment of women at work in India.

The Act

The Act, a significant legislation for a plethora of reasons, also requires amendments to strengthen its vigour and application.

Summary of the Salient Provisions

l  At the heart of the Act is the intent to afford protection to all women in India from sexual harassment at workplace (SHW) and to encourage their participation in work and their social and economic empowerment.

l  The Act extends to the whole of India and seeks to address the sexual harassment of women alone. It is pertinent to note however that the aggrieved woman as envisaged under the Act is not required to be an employee at the workplace where she may be subjugated to harassment.  Apart from the lack of gender neutrality with respect to the complainant, the application of the Act is intentionally wide and this can be inferred foremost from the definitions of ‘employee’, ‘employer’ and ‘workplace’. The Act applies to the organised sector as well as the unorganised sector. In view of the wide definition of ‘workplace’, the statute, also applies to government bodies, private and public sector organisations, factories, non-governmental organisations, organisations carrying on commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals, among others. In accordance with the provisions of the Act, a workplace also covers within its scope, places visited by employees during the course of employment or for reasons arising out of employment – including transportation provided by the employer for the purpose of commuting to and from the place of employment. Additionally prominent cases of sexual harassment (both admitted in court and otherwise) reveal the broad spectrum of workplaces that have been construed by various redressal forums across the country.

The Act focuses on prevention, prohibition and redressal of sexual harassment of women at the workplace in India; and the rights and duties are invested in

(a) the employer (section 2{g}),

(b) The employee (section 2{f}),

(c) the aggrieved woman (section 2{a}),

(d) the Internal Complaints Committee (ICC)/ Internal Committee (IC) or the Local Complaints Committee (LCC)/Local Committee (LC) as the case may be,

(e) the appropriate Government (section 2{b}),

(f) the District Officer (section 5),

(g) the designated nodal officer (as under section 6{2} of the Act ), and

(h) the Appellate Authority (in accordance with section 18 of the Act).

Rights and Duties of the Employer

PROHIBITION: The Act expressly invests in every employer the duty to provide women employees with a safe working environment and a workplace devoid of sexual harassment. Additionally, Section 19 of the Act mandates that the employer regard SHW as misconduct under the service rules (of such workplace) and take action for such misconduct.

Prevention : Section 3 of the Act
expressly prohibits SHW of women

The primary responsibility of every employer that employs more than 10 employees working at the specific workplace is to:

1. Organise workshops, awareness programmes and capacity building programmes for both the employees and the internal complaints committee (ICC) members at regular intervals, disseminate the internal policy for prohibition, prevention and redressal of SHW including the contact details of the ICC members.
2. Another important function imposed on employers is the duty to institute an Internal Complaints Committee in accordance with the provisions of the Act (Chapter II; Section 4 {1}) to hear and address the complaint and to make a recommendation in every matter. This includes the payment of fees for the Committee members (Rule 3). It bears note that there is no specific penalty imposed by the Act on employers who do not accept or act according to the ICC’s recommendations.
3. Provide the necessary facilities to the committees to conduct the inquiries. This includes providing assistance to the respondent and necessary witnesses, making available such information as may be required for the inquiry etc.
4. The employer must also assist the aggrieved woman if she so wishes to proceed with filing a complaint under the IPC or any other relevant law.
5. Section 19 (j) read with sections 21 and 22 invest in every employer the duties to include certain information and statistics regarding the number of sexual harassment cases at the respective workplace in the annual report of company and in the annual report of the ICC every year.
6. Penalty: Section 26 of the Act provides for a fine of upto Rs.50, 000/- on the employer in the event of non-compliance with the provisions of the Act relating to constitution of the ICC, inquiry and the annual report.

Rights and Duties of the Committee (ICC/LCC) Members

Prohibition and Prevention : Section 4 to Section 16 enumerates the duties of the Internal Complaints Committee and Local Complaints Committee members.

l   The Presiding Officer or any Member of the Committee is invested with the duty to assist the aggrieved party when she wishes to make the complaint (Section 9).

l   The Internal Complaints Committee (ICC) must be setup as per the guidelines prescribed in Section 4. As per the current law, there should be an ICC formed at every branch of the company in the country, where there are more than 10 employees.  The District Officer is required to constitute a Local Complaints Committee (LCC) in each district, and if required at the block (Taluk) level (Sections 5, 6 and 7).

l   The Act mandates for the LCC to be set up to address complaints in the event an establishment has less than 10 workers or if the complaint is against the employer himself. The appropriate Government notifies a District Officer to discharge the functions of this Act.  The Act deems that the Chairperson of the LCC shall be a woman. A minimum of four persons are to constitute the LCC, and at least half of the members are to be women. The ICC/LCC should be equipped to investigate all complaints thoroughly (seeking the assistance of the employer when required) and recommend actions to be taken.

l   The inquiry process should involve the respondent, witnesses and the examination of evidentiary documents etc., if any.

l   The recommendations can include the transfer of the woman aggrieved or a grant of a leave of absence during the course of the inquiry.

l   Statutory reporting of the cases filed and action taken should be reported and filed in the company’s annual report.

l   The inquiry must be conducted within 90 days from the submission of the complaint.

Additionally, the Act also invests the protagonists with the task of monitoring and reporting with the specific objective of prevention. Of relevance are the following provisions.

l   The employer shall monitor the timely submission of reports by the Internal Complaints Committee.

l   Penalty for violation of confidentiality: If any person violates the provisions of Section 16 (confidentiality), the Employer is vested with the power to recover a sum of Rs. 5,000/- as penalty from such person.

l   The ICC or the LCC, as the case may be, shall prepare an annual report and submit the same to the Employer and the District Officer.

l   The District Officer is duty bound to forward a brief report on the annual reports received to the State Government and monitor the timely submission of reports furnished by the Local Complaints Committee.

l   The Appropriate Government shall monitor the implementation of the Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment of women at the workplace.

Rights and Duties of the Employee

The definition of ‘employee’ in section 2(f) of the Act is wide and covers regular, temporary, ad hoc employees, ‘individuals engaged on daily wage basis, either directly or through an agent, contract labour, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied’.

The primary duties of the employee albeit not expressly mentioned anywhere in the Act would be to abstain from committing sexual harassment at the workplace, complain in a timely manner, cooperate with the Employer/ICC/LCC as the case may be and participate in gender sensitisation initiatives. There is also a general duty/right imposed by the Act on any person having knowledge of any incident of SHW to report it (Rule 6{b} read with section 9{2}).

Penalty: It bears note that the Act prescribes no specific penalty on those persons found to be perpetrators of SHW by the ICC/LC or through any other redressal mechanism preferred. The provisions of the Act as under section 13, section 15 read with Rule 9 enumerates that the ICC/LCC can impose penalties on those employees found guilty of SHW. The punishments that the ICC/LC can prescribe range from verbal censure or reprimand, warning letter, community service, counselling, withholding pay or promotion or termination. There is a penalty for violation of confidentiality of the proceedings or relating to any information of an incident of SHW as envisaged by the Act.

Redressal

Complaint Procedure: The Act prescribes that the aggrieved woman is required to make a written complaint of the same to the ICC or LCC within three months from the date of incident and when there are series of incidence then three months from the last incident. If the woman is unable to make a complaint in writing then proper assistance can be given by the Presiding Officer or any member of ICC or by the Chairperson or any member of the LCC. According to the Rules of the said Act if a woman is unable to make a complaint due to her physical incapacity then the complaint can be made by her friend or her co-worker or any Officer of the National Commission for Women, or the appropriate State Women’s Commission or any person having the knowledge of the incident, with the prior written permission of the aggrieved woman.

Redressal under the Indian Penal Code: Sexual harassment of women at the workplace is a criminal offence as per the amendments made to the Indian Penal Code in 2013 (refer to Criminal Law Amendment Act, 2013). Under section 354(A) of the IPC a person who is found guilty of the offence of sexual harassment may be punished with imprisonment for upto 3 years and/or a fine. Hence a victim can raise a criminal complaint as well as a case with the ICC; both can run simultaneously.

Conciliation:The Act (section 10) also allows female employees to request for conciliation in order to settle the matter. The terms of the conciliation are to be recorded in writing in order to avoid any ambiguity.

Critical Evaluation

An overview of the Act is necessary to understand the scope and extent of its application and the potential challenges to its enforcement. The very existence of this legislation is progressive and has had a positive impact in both the economic and social (welfare) facets of working in the organised sector in India, but there are gaps which need to be clarified in order to extend its benefits to the millions of women who are working in our agriculture, small-scale and cottage industries, among other unorganised sectors.

SHW is a recurring issue across workplaces in India today (both in the organised and unorganised sectors). Although the Vishaka Directives and the Act defines ‘sexual harassment’, a clear comprehension of SHW is limited. Perceptions and understanding of what constitutes SHW is vague and varies within the many cross-sections of Indian society and this affects the application of the Act. This is also one of the reasons why inconclusive complaints are filed i.e. complaints that cannot be deemed as false as per the Act, but complaints that prima facie do not amount to SHW.

The most common form of SHW in India is verbal harassment. This includes unwelcome verbal comments, comments with a sexual connotation or of a sexual nature, unwelcome flirtation and invitations (for sexual contact of all kinds), comments on the victims’ appearance or attire, singing of ‘Bollywood’ (or regional movie) songs and catcalls (whistling). Other common forms of harassment include physical touching and lewd text messages, phone calls or emails. The research also revealed that since the passage of the Act perpetrators are becoming smarter and make certain not to leave a forensic footprint i.e. perpetrators of SHW ensure that there are no witnesses, that the harassment is not in writing or via text message, email or phone call. This makes the SHW/harassment harder to prove.

Also pervasive in India is retaliation against complainants and witnesses: (a) Complainants are often deterred from complaining by the employer for various reasons.  Failure to comply with the employer’s demands by the complainant could result in punishments that either target her/his social status (reputation – which is of great normative value) or job security. Retaliatory acts by the employer include intimidation (especially during the pendency of an inquiry), a reduction in the complainant’s wage or role in the organisation, bad work appraisals negating the complainant’s chances of a pay-hike and promotion, job transfers, retrenchment or termination. (b) Both complainants and witnesses often express fear of retaliation from the alleged perpetrator outside of the workplace. This remains a crucial challenge and one which the legislators have sought to address with the amendment of the IPC. Although employers may not be held legally accountable for an employee’s safety after work hours and outside of the premises, threats on the complainant’s life and to her/his safety is of great concern. At present, there is no provision in the Act to punish wrong-doers who exact revenge against complainants, so the victim’s only recourse is under the IPC.

While those affected by SHW belong to various industries across the country, it is women who predominantly face this abuse. Whilst men and those belonging to other genders (those who identify themselves as transgender and transperson) do face this abuse, the number of complaints received is far less. SHW is also seen as a power issue; where the aggrieved women are often subordinate to their male harassers. At present women constitute only 1% of senior management in India, 4% of middle management and 14-18% at the lower level. Another consequence of this is that women that face harassment are often between the ages of 15-40 years. Those women that are at the highest risk of SHW are women in lower-level jobs with little or no education.

The most positive trend reported was awareness of the Act and of the prohibition of SHW. As a direct corollary of this most of the participants reported a significant increase in the constitution of ICCs by organisations. Also, it was reported that men express fear of being charged with sexual harassment and that younger women are more vocal with respect to reporting SHW. As for younger men it was observed that they too seemed proactive and ready to engage with SHW law; and grasp the nuances of consensual and unwanted sexual acts better.

It was also reported that large multi-national corporations, with numerous branch offices, located across the country were the fore-runners with respect to the effective implementation of the Act. This was attributed to several reasons including conformance to organisational global anti-harassment policies, sufficient monetary resources to create and implement internal complaints’ mechanism as well as awareness training, lack of fear of reporting among aggrieved persons (perpetrators were often transferred to other branches) and the consequent lack of retaliation against complainants.

While the Act does not mandate the transfer of the complainant and/or the alleged culprit during the inquiry, it was reported that women employees felt comfortable sharing details of SHW at larger companies where there was scope for transfer. ICC members and in-house counsel adduced that they often recommended both the complainants and the alleged culprit either work-from-home or go on a leave of absence prior to and during the pendency of an inquiry. This recommendation is of great practical significance: firstly, it ensures that both parties do not seek to unjustly influence the ICC or potential witnesses in any manner. It also ensures that the alleged culprit does not malign or intimidate the complainant at the workplace into withdrawing the complaint. Any such retaliatory acts prior to or during the inquiry can also be reported to the ICC members

It was observed that the effective application of the Act in mid-level and small-scale organisations (with employees ranging from 500-100) as well as in the unorganised sector (this includes agricultural and construction workers, migrant labourers etc.) was and continues to be a challenge. With poor rates of education, lack of access to healthcare and other fundamentals, lack of awareness on what constitutes SHW, inherent sexism in the job and extreme poverty dictating the difficult lives of women in the unorganised sector. One of the biggest challenges to the effective implementation of the Act is the lack of reporting (under-reporting) of SHW incidents. The reasons for silence are many: Fear of loss of job, family pressure to leave the job, suspicion of husband about the woman having an affair, other male colleagues taking advantage of vulnerability, sense of shame and not wanting to be seen as a ‘bad’ woman etc. Others reasons cited by experts include the cumbersome ICC process, the lack of awareness about which body to approach to complain and the lack of encouragement from managers/HR regarding receipt/acceptance of the complaint(s) as deterrent factors.

Another challenge, which has eluded the architecture of the Act, is the lack of liability in the event of non-adherence of the employer to the recommendations of the ICC/LCCs. Section 13 of the Act enumerates that the ICC/LCC provide a report of its findings to the employer/District Officer within a period of ten days from the completion of the inquiry. Furthermore, the employer has an obligation to submit an annual report with the number of cases filed, if any, and their disposal under the Act (section 22). However, there is no monitoring provision governing a violation of section 13 or section 22.

The most prominent challenge to the Act’s implementation however appears to be the lack of stringent punishment on the employer. At present, as laudable a legislation as it is, the Act fails because of the lack of clarity on definitions of the LCC, the District Officer, ‘Service Rules’ and so can cause great confusion whilst implementation. The Act invests a great deal of responsibility in the employer – but there remains no recommended structure for the ICC process (however the courts have attempted to step in here), no guidance on information required for the Annual Report, a lack of clarity on the appellate process of the ICC, no strictures relating to failure to comply with non-retaliation requests of the ICC and so on. These ambiguities need to be remedied by the lawmakers.

(Shivakami Kumaramangalam is a trained lawyer and a practicing legal consultant. She studied law at the prestigious ILS Law College, Pune, India and later graduated with a Masters in Law from the internationally acclaimed University of Warwick, United Kingdom. Her thesis, submitted in
September, 2006 evaluated the crucial Vishaka vs. The State of Rajastan on sexual harassment law.
She continues to work in the field of workplace discrimination.)

(This article is carried in the print edition of November-December 2018 issue of India Foundation Journal.)

Media is the sensitive litmus test that represents the dichotomy of tradition and transformation in society. The coming of media institutions in India announced a culture of revolutionary inclusiveness and its further ballooning caused the collapse of conventional pecking orders. Having said that, the media never disregarded the policy of reproduction and reaffirmation of social inequalities that suited the popular culture. Perhaps, the internalisation of gender discrimination in media flows and media effects was classically convenient to the model of media capitalism given that women have always been sanctioned as the second sex in society. Sonia Bathla, the author of Women, Democracy and the Media, writes on this phenomena, “The silence of the media on women’s issues and the movement hints at the insignificance attached to women as citizens and to their participation in the public sphere.”

Praise the lord for the bravery of men who never came to the rescue of women in media. Only when the men in the journalism tribe in their infinite wisdom decided to misreport and marginalise women, women were stimulated to stake claim in the media machinery. In a field peopled by men in 1942, the relentless activist Vidya Munshi became the first mainstream woman journalist in India. The acute awareness of being a woman is what made her overwhelmingly responsible to her community and the profession. Then in 1965, Pratima Puri charmed the audiences to become the ‘First Lady of Indian Television’. In times when women on celluloid were deemed infamous, she overcame the binary of vamp-virgin representations to be recognised as a professional newsreader on Doordarshan.

“I travelled across Delhi on a bicycle, wearing a saree, with two huge sling bags across my shoulders that held cameras and equipments. I would get strange looks from people on the street,” discussing her sepia memories with India Today, the first woman photojournalist of India, Homai Vyarawalla had consuming anecdotes of covering the World War II for the Indian station of British Information Service. She evolved into an uncompromising personality in the mediascape because of the enduring realisation that she was working in a man’s profession in a man’s world. Regardless of the Vyarawalla example, the Indian media could not receive women war journalists because apparently valour and vulnerability could not coexist in society. Hence, Prabha Dutt had to secretly cover the 1965 Indo-Pakistan War since she was not permitted to undertake the assignment by her paper. Barkha Dutt in her interview to the Firstpost recalled her mother’s contribution to the protestation, that women sought no preferential protection on the frontlines. Prabha Dutt was reserved to report a local flower show in town when she demanded to be assigned to cover the border conflict. The response from the editor was a categorical ‘No’, so she made her own way to Khem Karan and started sending back dispatches that her newspaper eventually published. Alas, licensing deprivation of equal opportunities to people of equivalent skills is still a norm in the media houses. This tendency is quite noticeable in the unprofessional and unethical practice of gender based stereotyping of news beats.

Reading the gender representation in newsrooms, Ammu Joseph from the Network of Women in Media, India (NWMI) observes, “Many female journalists still experience slow and limited progress, if not stagnation, in their careers.” In the fall of 2017 Newslaundry conducted a noteworthy research, reviewing the bylines and articles of prominent newspapers, to understand the gender ratio in the state of reportage. The papers examined were – The Times of India, The Hindu, Hindustan Times, The Telegraph and The Indian Express, the most widely circulated newspapers in India according to the Audit Bureau of Circulations. The numbers revealed that of the 7,372 articles screened in the study only 32 per cent were written by women, which means twice the number of bylines were attributed to men in the workforce. The inference drawn from the research appropriately said, “Together the five papers set the agenda for national discourse and even as they dissect other establishments on issues of gender equality, our research shows that they don’t quite pass the test themselves.” Correspondingly this statistic discrimination conserves momentum through the process of mediamorphosis and is tangible in the livewares of cinema, broadcast and new media. This tends to further escalate in media organisations where women are denied power positions confirming to the glass ceiling theory that keeps women from ascending the editorial hierarchy. This elephant in the Indian newsrooms significantly influences the construction of feminine images and information.

The absence of women in policy and production stages is painfully, and sometimes embarrassingly, realised in all media cultures – films, television and advertisements that seem to be in a stereotype consolidation race. Filmmaker Bishakha Dutt describes how the narrative in cinema has travelled from femme fatale to women being dangerously punished for moral transgression in the negotiations of the so-called heroine centric films. Shoma Munshi in her book – Remote Control, explores the eccentric sexist imaging on small screen. The soap operas on Indian television do not sell the embodiment of women’s sexuality but rather romanticises an obsessive fidelity to family, irrespective of reciprocity or exploitation. The advertising industry in India has manufactured its own cult of patriarchy, a world where women are doomed with the traditional roles of washing clothes and serving food. The contemporary bargain to represent a working woman in the advertisement comes with her prepossession to the power of fair and lovely skin. The media ecosystem shows no sign of role reversal or egalitarian power relations, and this gender bias media output is primarily driven by the gender bias media input. The home truth in the matter is that women cannot be well represented on reel when they are underrepresented in real.  Even the liberating technological domains of new media remain male dominated in the post truth, post human, post gendered mediums of communication. The new media is institutionalised on the models of Alternative Journalism and Citizen Journalism, yet even this supposedly participatory media is coloured with the hegemony of men.

India is the second largest market of smart phones and internet consumers but this technological penetration is skewed towards men, excluding women form the digital progress. Reporting on the Gender Digital Divide, Livemint in the article ‘She is Offline’ demonstrated how India accounts for nearly half the digital gender gap worldwide – “The world today has 3.58 billion internet users. Roughly 2 billion (56%) are men and 1.57 billion (44%) are women, of that shortfall of 430 million users, 42% comes from India.” An evaluation released by the LIRNEasia, Information and Communication Technologies (ICT) think tank, published that India has the most meagre number of women online, and the maximum gender gap in mobile phone ownership among 18 similar countries. According to the study, only 43 per cent women in India use mobile phones as opposed to 80 per cent men, surpassing the gender digital divide ratios of Pakistan, Bangladesh, Rwanda and other countries. With less than one-third of India’s internet users being females, women are endangered to further marginalisation if they continue to remain digitally unlettered, more particularly in the backdrop of the country making a push towards a digital economy. The impediment in working towards a gender equitable digital India is the alarm against women using mobile phones to access the new media in the broader context of patriarchal restrictions on women’s autonomy and right to information.

The International Federation of Journalists published a text on women in media in South-Asia – The Stories that Women Journalists Tell. The Indian Roundtable oriented the discourse on how the media explosion in the country did not impel the recruitment of women journalists in smaller cities and rural quarters more specifically, because of the poor pay and poorer working conditions. “Increasing criminalisation and militarisation also affects women and limits their opportunities. Safety and security becomes a major issue and specialised training is needed to help women in media.” The participants recommended the establishment of stronger networks and support groups, so that women can encourage and empower each other in the media industry, transcending regional boundaries. In this frame of reference, the Khabar Lahariya model of journalism is worth mentioning. Khabar Lahariya is a pioneering rural news network run by 24 women reporters in eight off-the-map districts of North India. The documentary ‘Writing with Fire’ filmed the revolutionary organisation of Khabar Lahariya where women assume absolute responsibility of running the newspaper by reporting, editing, designing, publishing, and distributing on their own immunity. Back in 2002 when the first edition was launched from Bundelkhand, Uttar Pradesh, a woman travelled to Allahabad each week to print the newspaper copies and came back to sell Khabar Lahariya to each household in the village. Today the circulation of the newspaper records 3 hundred thousand copies every month in a variety of rural dialects and vernacular languages. What makes this experiment all the more groundbreaking is when women from the tribal and backward communities, women from unschooled and untrained sections, outrival the gender relations, caste dynamics, literacy divides to come together and contribute a feminist voice to the news waves of the country.

To engender gender equality in the society, it is imperative that media promotes and protects this gender equality in its own backyard. Gender equity in media houses is central to any discussion about a competent representation of women in popular culture. Journalism can essentially practice gender sensitive reporting only when its own ecosystem inculcates that sensibility. Hence all journalists, regardless of the gender determinant, should have the right to certain fundamental principles in media. The three elementary entitlements are recruitment subject to professional dexterity, equal pay for equal work and opportunity for promotion sans discrimination. Further the media environment, whether public or private, must encourage the participation of women in their workforce by committing to the following tenets – training women to operate new technologies, removal of gender assignment segregation, insurance for women journalists, introduction of anti-discrimination charters and most significantly implementing the laws that deal with sexual harassment at workplace. The South-Asia Media Solidarity Network nominated a multi-pronged approach to address the concern of sexual harassment at media organisations by mapping the incidences and prevalence of predatory behaviours, execution of existing laws that prohibit sexual harassment and setting up an Internal Complaints Committee to put in place the redressal mechanisms. For a still greater inclusion of women, media houses must address to the special needs of journalists as parents since the onus of childcare often falls upon women in the country. To support the participation of mothers in media, the organisation can make provisions of accommodative working hours, fair allowances in maternity leaves and availability of child care services to advocate the crèche culture.

If as John Stuart Mill suggested, we tend to accept whatever is as natural, this is just as true in the realm of media organisations as it is in our social arrangements. The whole purpose of journalism says, natural assumptions must be interrogated and the mythic constructions must be questioned so that the objective truth can live in light. It is here when the very position of women as acknowledged outsiders in the media, the maverick ‘she’ instead of the neutral journalist, defeats the whole purpose of journalism and media in contemporary India.

References:

1. Bathla, Sonia. Women, Democracy and the Media. New Delhi: SAGE Publications, 1998.
2. Dasgupta, Sanjukta, Dipankar Sinha, and Sudeshna Chakravarti. Media, Gender and Popular Culture in India: Tracking Change and Continuity. New Delhi: SAGE Publications, 2012.
3. Deshpande, Anirudh. Class, Power and Consciousness in Indian Cinema and Television. New Delhi: Primus Books, 2009.
4. Munshi, Shoma. Remote Control: Indian Television in the New Millennium. Penguin 2012.
5. Prasad, Kiran. Women, Globalization and Mass Media. New Delhi: The Women Press, 2006.
6. McQuail, Denis, Philip Schlesinger, and Ellen Wartella. The SAGE Handbook of Media Studies. Thousand Oaks: SAGE Publications, 2004.
7. Storey, John. Cultural Theory and Popular Culture: An Introduction. Pearson Education India, 2013.
8. Jones, Amelia. The Feminism and Visual Culture Reader.Routledge Publications, 2003.
9. https://www.indiatoday.in/india/story/homai-vyarawalla-first-lady-of-the-lens-89729-2012-01-15
10. https://www.firstpost.com/blogs/whatever-i-do-my-mother-did-first-barkha-dutt-268682.html
11. http://www.nwmindia.org/newsmaker/interview-with-ammu-joseph-on-winning-donna-allen-award-for-feminist-advocacy
12. https://www.newslaundry.com/2018/05/04/women-media-gender-bias-power-indian-newsrooms-male-editors
13. https://www.livemint.com/Opinion/sD6mVqLAEa7cvfJtmdXXuO/She-is-offlineIndias-digital-gender-divide.html
14. https://samsn.ifj.org/wp-content/uploads/2014/11/Women-in-Media-in-South-Asia-report-final.pdf

 (Srishti Singh is a student of Journalism at the University of Delhi and

is currently interning with India Foundation.)

 (This article is carried in the print edition of November-December 2018 issue of India Foundation Journal.)

For three-days there was shut down, disruption of law and order, rampage and unleashing of violence and anger in the length and breadth of Pakistan following the radio broadcast of PM Imran Khan. He tried to give his agitated compatriots a sane and sensible advice in the context of the Supreme Court’s verdict on Asia Bibi case of blasphemy. The Supreme Court said that there was no irrefutable evidence to prove blasphemy against Asia Bibi, a Christian woman mother of five children. The case has been hanging fire for nine years by now. The court has set her free.

The rabid and fanatical religious extremists in Pakistan felt deeply humiliated by this pronouncement of the court and threatened to launch a countrywide protest against the verdict. They threatened to disrupt law and order and paralyze the government charging that Islam was being undermined in Pakistan. At the front of these protests and threats was Lashkar-i-Jhangvi, the offshoot of Sipah-e-Sahaba an extremist Sunni Hanafi organization that has taken upon itself the genocidal mission of decimating the Shi’a community of Pakistan.

On realizing the dimensional gravity of the situation, Imran Khan felt the compulsion of addressing the nation through a hurried broadcast.  He spoke what any rationalist and sensible politician and leader would speak. He was polite and persuasive appealing for respect for the judiciary and the need to maintain peace. He even said that the country was passing through severe financial crisis and is not capable of bearing further hurting of its economy. He asked whether Pakistan could be run when there is call to the army to revolt; when there is demand to kill the concerned judges of the Supreme Court and when there is the cry that the Army Chief is not a Musulman.  However, the sting was in the tail. He said it was the duty of the State to protect life and property of the citizens.

Apart from the threats and intimidation flowing rapidly from the extremist groups, there was urgency for Imran Khan to make a hurried broadcast. He was scheduled to leave for Beijing the same night and he did not like that his maiden official visit to China should get spoiled. Nevertheless, his apprehensions did not fail him.

The mayhem let loose by the fundamentalists has forced the government to deploy high level security at the Pakistan Supreme Court and the judges. The lawyer who was pleading the case of the defendant has left Pakistan owing to threat to his life. All important government installations have been brought under security umbrella. The government has surrendered to the fundamentalist pressure and agreed to revisit the matter.

Pakistan’s malaise is rooted in history. It was created on the assumption that the Muslim community in India was entirely a separate and a superior entity having nothing in common with the indigenous communities of India. Actually, this type of thinking goes into the history of Islam and the Pakistan movement leadership was unable to move beyond the original Islamic cultural parameters and walk into the arena of modernity.

The history of Islam’s opposition to and clash with secularism is an old one. Interestingly, in Arabic language, despite the richness of its lexicon, there is no equivalent word for “secularism”. Secularism, in its political and social sense, has been borrowed from European thinkers and after the Reformation of A.D 1688 secularism became a meaningful term in the political history of Europe. However, it made no impact on Muslim societies in the East because they were still struggling under the rule of autocrats either in the form of monarchs or powerful satraps.

The Muslims believe in the paramountcy of their faith, and its promised global expansion. As such, the idea of a plural society is hazy and meaningless. Of course, during and even after the Caliphate the Muslim rulers and ecclesiastic devised a cut and dried policy towards their religious minorities. Firstly, there was not the notion of a state or citizenship. Muslim concept is of ummah meaning the Islamic community. Secondly, along with that is the idea of brotherhood (ukhawwat) which discards geographical boundaries as barriers to interaction among Muslims. As such “Islamic country” is a misnomer while Islamic ummah is the reality. It is a different thing that historically no Muslim country ever compromised its territorial integrity and even went to war if need arose to secure their geographical boundaries.

Muslim rulers and ecclesiastic laid down clear instructions of how they were to treat religious minorities. At the beginning of the Islamic history the more prominent religious minorities that were identifiable in the Muslim world of the day were the Jews (Jehud), Christians (masihiyan), Zoroastrians (gebr), and Manicheans (Mazdakyan). Apart from them, many political opponents to the Islamic rule were dubbed as la din literally meaning with no religion (faith-less). However, the phrase la din was not approved by the European Muslims because it clashed with the Islamic concept that Jesus was one of the Prophets in Saracen hierarchy of prophets  and that the Bible is a revealed book. As such Christians could not be called la-din. Arab historians of later times silently dropped the word.

The point is that so far we used to say that in Pakistan the real power rests with the Army. But the Asia Bibi case has exploded that myth and now we find that real power in that country rests with the religious extremist organizations the dini lashkars that have exhorted the army to rise in revolt against the state.

We have always been telling Pakistan that the Frankenstein of religious fundamentalism will one day take on the State including the army. That day has come. It is the Pakistan army that patronized and supported fundamentalism. It is the State of Pakistan that financed and patronized thousands of madrassahs which have churned out hundreds of thousands of fundamentalists-terrorists who have been working for the destruction of peace in the country and its neighbours – India and Afghanistan in particular. They had tried their tactics in Xinjiang with Uyghur at one time but had to eat the humble pie when Beijing issued a stern warning and banished Islamist propaganda in her Eastern autonomous province.

This fire will not be doused with the surrender by Imran Khan Government to the fundamentalists. Its members are live and can ignite a great fire sooner than later. The army has large number of recruits come from madrassahs where they have been brainwashed and fundamentalized. The exhortations of religious extremist leadership will not go unnoticed by the lower echelons of Pakistan army keeping in mind the milieu from which they have arisen.  At the same time the Army will also have to recollect that in the past Imran Khan has been highly critical of the US and the Pakistan army while conducting his election campaign in Khyber-Pukhtunkhwa.  He is riding the tiger but will he dismount without being bruised and mauled? That is the question the world will keenly watch.

(Prof. K.N. Pandita is a former Director of the Centre of Central Asian Studies, Kashmir University, Srinagar.)

The UN Secretary General, now on a visit to India, pontificates that India should take care of human rights in Kashmir. This shows that he is not well informed on the history of Kashmir issue or is under pressure from Pakistani and Islamic lobbies. The right thing for him to do was to visit Pakistan and go deep into the human rights situation in that country. Let us summarize it for his quick reading and understanding.

Universal Declaration of Human Rights of the United Nations is actually the Magna Carta of minority rights. It urges member States to institutionalize protection and promotion of human rights of its citizens without discrimination.

Pakistan is signatory to several international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR) and it also adheres to the Universal Declaration of Human Rights (UDHR).  However, Pakistan has taken a reservation on most of these and made their observance subject to the injunction of Islam. That immensely limits the scope of the treaties

Article 18 of the UDHR guarantees the right to freedom of thought, religion and conscience to every human being. Under the international treaty and customary law, Pakistan is bound to enforce the right of freedom of religion and belief of its people, especially the minorities, who are equal citizens of Pakistan.

Sunni Muslim majority does not allow Ahmadiyah to call themselves Muslims. There is demand from Sunni orthodox segment to declare Shia, the largest sectarian minority in Pakistan as non-Muslims, and other religious minorities like Christians, Hindus, Ismailis and others are treated discriminatingly.

Pakistan is not a homogenous society. The current population of Pakistan is 192 million out of which the majority are Sunni Muslims.  The country is home to several religious minorities: Ahmadiyah, Ismailis, Bohras, Bahais, Buddhists, Christians, Hindus, Jains, Kalasha, Parsees and Sikhs. As per the last recorded census (1998), 2.7 million Christians, 1.8 million Hindus, 106,989 Buddhists, 30,000 Sikhs, and 25000 Parsees constitute the religious minorities in Pakistan. Shia’s comprise the largest religious minority in Pakistan but are persecuted the most after Ahmadiyah and Hindus.

The majority population of Sunnis comprises various schools of thought like Deobandi,  Barelvi,  Ahle Hadith, Maudoodi etc, and add to this Wahhabis and Salafis.  Broadly speaking there are four traditional theological streams viz.  Hanafi, Maliki, Shafi’i, Hanbali.

Pakistan was created in 1947 as a separate country for the Muslims of India but not for any particular majority or minority denomination among the Muslims. The Lahore Resolution of 1940, which provided the basis for the creation of independent State of Pakistan also spoke about safeguards for the rights of religious minorities.

Perhaps this spirit had prompted M.A. Jinnah to make his famous address to the Constituent Assembly on August 11, 1947. He said,

“You are free: you are free to go to your temples, you are free to go to your mosques or to any other places of worship in the State of Pakistan. You may belong to any religion, caste or creed – that has nothing to do with the business of the State… We are starting with this fundamental principle: that we are all citizens and equal citizens of one State. Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not so in the religious sense because that is the personal faith of each individual, but in the political sense as a citizen of the State.”

This curious address of the founder of Pakistan carried in its womb the seed of unmitigated contradiction that has haunted Pakistan from the very day of its creation.

How could non-Muslims be equal citizens of a State that was created for the Muslims? How could all citizens of the newly carved State be equal when the State came into being on the basis of two-nation theory? Most of Pakistani ulema even today reject the concept of universal equality for all citizens of Pakistan. The underlying conviction was that Muslims are superior to all other communities and Pakistan was a Muslim.

Jinnah corrected himself in many of his subsequent speeches in which he referred to an “Islamic form of democracy” and thus emphasized the role of Islam in the state where he had hoped that religious minorities and women would enjoy equal rights.

The first indication that the nascent state of Pakistan will be tilting towards predominance of Islamism over western type of democratic dispensation came in the form of the Objectives Resolution, which the first Prime Minister Liaquat Ali Khan proposed to make the preamble of the new constitution. Under Ziau’l Haqq’s dictatorship it was incorporated in the Constitution.

While we deal with the narrative of Human Rights in Pakistan, we need to essentially focus on the Objectives Resolution of the Constitution of Pakistan. Human Rights activists need to pay more attention to this crucial part of Pakistani Constitution.

The preamble (as it was called then) reveals the intentions of the framers of constitution to make it an Islamic State. The bitter contradiction was whether Pakistan had to be an Islamic State as the Objectives Resolution envisaged or non-Islamic democratic State as per the 11 August address of the founder of Pakistan.

It has to be noted that Liaquat Ali Khan did not table the Objectives Resolution during the life time of Jinnah nor did he even once refer to the famous 11 August address of Jinnah. This reveals the dichotomy at the very outset.

When Pakistan Muslim League government started working on the details of the new Constitution, it faced considerable problems and demands. The most important and immediate was the demand to pronounce Pakistan an Islamic State. The groups of ulema in the Government, i.e. Maulana Shabbir Ahmad Usmani, the President of the Jamiatu’l-Ulama-i-Islam (JUI), Pir of Manki Sharif in the NWFP, Maulana Akram Khan, the President of the East Pakistan Provincial Muslim League, and outside the Government i.e. Jama’at-i-Islami (JI), constantly urged the Government to declare Pakistan an Islamic State and to base the future constitution on Islamic principles. Maulana Maududi, the Amir of JI presented following four points and demanded that the future constitution should be based on these principles: (i) that we Pakistanis believe in the supreme sovereignty of God and that the state will administer the country as His agent (ii) that the basic law of the land is the shariah which has come to us through our Prophet Muhammad (SAW) (iii) that all such existing laws as are contrary to the shariah be gradually repealed and no law contrary to the shariah shall be framed in the future; (iv) that the State, in exercising its powers, shall have no authority to transgress the limits imposed by Islam.

If we want to understand the source of violation of human rights in Pakistan, or to be precise, violation of the human and civil rights of the minorities of Pakistan, we shall have to take into account the entire gamut of great and historic debate which took place in the Pakistan Constituent Assembly in which the then Prime Minister, Liaqat Ali Khan tabled the Resolution.

The move was strongly supported by the Muslim League members  but the Hindu members from the then East Pakistan, though less in numbers  opposed it tooth and nail. The apprehensions to which they alluded have come true in letter and in spirit as we go through the Rights history of Pakistan. One should give credit to their vision and wisdom and one should note with special attention the warnings which they had issued about the fragility of the proposed Islamic State of Pakistan purely on political and social basis.

The draft Objectives Resolution contained 13 clauses. It is beyond the scope of this paper to deal at length with all the 13 clauses. Therefore for brevity sake, I take up for discussion only the first clause and proceed to explain its fragility. But before I do that, let me reproduce below Clause 1 of the Resolution. It says:

“‘Whereas sovereignty over the entire universe belongs to God Almighty alone, and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust.”

Opening the debate on this clause Bhupendra Kumar Datta, a member of PNC from East Pakistan, pointed out at this:  “Relations between a state and its citizens have been the subjects of politics, and relations between man and God come within the sphere of religion. ‘Politics comes within the sphere of reason, while religion within that of faith. If religion and politics are intermingled then there is a risk of subjecting religion to criticism, which will rightly be presented as sacrilegious; and it would also cripple reason and curb criticism as far as the state policies are concerned.”  Datta also warned that this resolution was prone to be misused by a political adventurer who might find a justification for his ambitions in the clause that referred to the delegation of the Almighty’s authority to the state through its people. He could declare himself as Ruler of Pakistan appointed by his Maker.” He also pointed out another potentially dangerous implication that “the limits” prescribed by the Almighty would remain ‘subject to interpretations and liable to variations, liberal or rigid, from time to time by different authorities and specialists

Chandra Chattopadyaya, a member of PNC from East Pakistan, expressed the same fears that:  “All powers rest with the people and they exercise their power through the agency of the State. The State is merely their spokesman. The Resolution makes the State the sole authority received from God Almighty through the instrumentality of people. People have no power or authority. They are merely post-boxes according to this Resolution. The State will exercise authority within the limits prescribed by Him. What are those limits, who will interpret them? In case of difference who will interpret? One day a Louis XIV may come and say, “I am the state, appointed by the Almighty” and thus paving the way for the advent of Divine Right of Kings afresh. Instead of the State being the voice of the people, it has been made an adjunct of religion. People are the manifestations of God.

Raj Kumar Chakraverty, a member of the PNC from East Pakistan, moved another amendment in the same clause: He said the words “State of Pakistan through its people” should be substituted with the words “people of Pakistan”. He further elaborated that ‘a State is the organized will of the people. A State is formed by the people, guided by the people and controlled by the people.’

He also quoted the constitutions of the leading Muslim states of Iraq, Turkey, Egypt and Iran where the sovereignty resides in the people and all people are equal before God.  Another member Leonard Binder also commenting on the first paragraph said that the clause “acknowledged the sovereignty of God, recognized the authority of the people derived from their creator, and the vested authority delegated by the people in the Constituent Assembly for the purpose of making a constitution for the sovereign state of Pakistan’ thereby declared ‘God sovereign, the people sovereign, parliament sovereign, and the state sovereign in Pakistan’.[i]

Notwithstanding the prophetic remarks of a senior League Member Hamid Khan that the Resolution had sown the seeds of suspicion, alienation and distrusts among the minorities the resolution was passed by majority vote. He further asserted that it might have been ‘more prudent to accept some of the amendments proposed by the members representing the minorities in order to reach an understanding with them so that the Resolution could have been passed by consensus. Some of the proposed amendments were moderate and might have been adopted”.

Objectives Resolution was a definite retreat on the part of government and provided some grounds on which the religious forces of the country thrived and gained advantage over progressive forces. Later on, Bhutto’s further retreat to get the favour of religious elements enhanced the influence of religious forces in the country. This not only resulted in the increasing insecurities and anxieties of the minorities but inflamed the sectarian differences within the Muslim community itself.

The retreat of liberal and moderate forces in the Muslim community gave way to extremism. Today it has become a menace not only to Islam getting portrayed as fanatic religion but to the Muslim community also who has become a hostage to a minority group wanting to impose its version of Islam.

Secondly, the government’s policy of uniting people in the name of Islam failed because of its failure to comprehend the plural sensitivities of Pakistani society and to address the problems of the people for whom they had sacrificed and achieved a separate State. This created alienation among certain people and provinces of Pakistan which ultimately lead to the disintegration of Pakistan and separation of East Pakistan in 1971. This event proved that ideology alone cannot keep the people united. Justice and fair opportunity are a must to keep a plural society together and save it from disintegration.

(Prof. K.N. Pandita is the former Director of the Centre of Central Asian Studies, Kashmir University, Srinagar.)

As India announced cancellation of the proposed foreign ministers’ sit together on the sidelines of the UN General Assembly session, Pakistani media has gone berserk in accusing India, that she is not interested in contributing to peace process in the region. The Pakistani media hype is meant to convince the world community and perhaps the US as well, that India is the source of disquiet in the region.

Who does Islamabad want to convince by such wishful claptrap, Washington, London, Moscow or Beijing? Who has been calling Pakistan the epicentre of global terrorism? Where was the master-mind of contemporary terrorism discovered and killed by the American marines? Where are the premier terrorist organizations designated not only by the US but also by the UN, based? Which country has sought shelter behind the dubious identities called “non-state actors” and which country runs tens of thousands of religious seminaries throughout its length and breadth to prepare them for joining the ranks of jihadis who want the free world’s order to be replaced by antiquated radical conservatism and sharia order and the world turned into an Islamic Caliphate?

Hindsight will show that in near and distant past free and democratic India took many initiatives for bringing about rapprochement between the two neighbouring South Asian countries, India and Pakistan. How did Pakistan respond to late Atal Bihari’s initiative of bus trip to Islamabad or Modi’s unscheduled visit to the then Prime Minister Mian Nawaz Sharif? We know that Islamabad’s India policy is framed by GHQ and not by any other authority.

From day one of his government, PM Modi made Indo-Pak peace talks subject to Pakistan calling a halt to clandestine infiltration of armed and trained jihadis from Pakistani border in J&K to the India side of Kashmir. However, Pakistan claimed that she was fighting terrorism in Waziristan but simultaneously extending political, moral and material support to “Kashmir freedom movement.” Islamabad rulers often claim they were avenging the hostility of India of Bangladesh era. The revanchist mindset never left Pakistan and the rulers there never even tried to make some introspection particularly after the Humudur Rahman historic report, the like of which is seldom fond in the annals of human history.

Notwithstanding what has been said above, Prime Minister Modi believing that a change of government in Islamabad might also mean Pakistan’s readiness to be pragmatic in chalking out its India policy afresh, agreed that his foreign minister may meet with her Pakistani counterpart to talk and to discuss on the sidelines of General Assembly session in New York.

Pakistan failed to comprehend the spirit of this gesture and the pre-requisites necessary to maintain an environment conducive to the beginning of a new attempt. If Pakistan was sincere in its intention of promoting peace, it was of utmost importance that she should not do anything on the ground to scuttle the chance for resumption of bilateral dialogue. Pakistan allowed its terrorist outfits and the jihadis to continue their perfidy in Kashmir. Further, it angered New Delhi by issuing a stamp in the name of a rank terrorist who was in close liaison with the LeT chief.

Pakistan is under the misconception that it can bring India to talking table through a show of muscle power. We do not know who prepared Pakistan for this naivety. Why India withdrew from the proposed foreign ministers unscheduled meet in NY is lucidly explained by her External Affairs Minister, Sushma Swaraj in her address to the informal meeting of the SAARC ministers on the sidelines of the GA session in NY. She made it clear that peace meant negation of war. But entire peace spectrum stands vitiated by one member-country of SAARC. How can there be peace when war is waged by proxy and those proxy warmongers are labelled as non-state actors only to escape the blame of fomenting and fuelling crisis in the region. Sushma Swaraj lamented that the huge potential for development in SAARC region is wasted by one particular country which has allowed its soil to become the hotbed of jihadi terrorists.

The jihadi outfits sponsored, recruited, trained and indoctrinated by ISI have the patent assignment of disrupting peace and normal life in the region by unleashing proxy war in India and Afghanistan, which together make the largest part of the SAARC geographical region.

India had boycotted the SAARC summit that was scheduled to meet in Pakistani last year and Bhutan, Nepal and Afghanistan had joined India in the walkout. SAARC has made no progress worth its name. How can it make any progress when the government of one member country allows its land to be used by terrorist organizations for launching global terrorism?

Many among the opposition in Pakistan National Assembly have questioned Prime Minister Imran Khan sending an undiplomatic letter to Modi and suggesting renewed efforts for normalising relations. In the same way many critics at home have not approved Modi’s more than necessary overture in this regard. Perhaps some invisible hand somewhere has been moving behind the curtain to prompt both sides for resumption of dialogue. If that is the case, the initiative should have been left to the lower ministerial rungs. Perhaps both sides have overdone their job.

While Pakistani foreign minister is knocking at various doors in the US in a bid to seek moratorium on Trump’s aid cancellation spectacle, Prime Minister Imran Khan made a sudden jaunt to Riyadh despite his election promise of not going on a foreign tour for first three months in office. This may be the fourth or fifth time for Saudi monarchy to bail out Pakistan from financial crunch. At the same time Shah Mahmood Qureshi once again carried his beggar’s scrip to the doorsteps of IMF

Notwithstanding Imran Khan’s penchant for US-bashing psychosis, Washington is not going to stop its effort of chalking out a working formula with Imran Khan’s regime for bringing about substantial change in Afghan political scenario. India, including Kashmir, undoubtedly figures in their narrative. All that one would say is that a goodwill dialogue between the arch rivals should precede political dialogue.

(Prof. K.N. Pandita is the former Director of the Centre of Central Asian Studies, Kashmir University, Srinagar.)

In a recent issue, the Daily Excelsior of Jammu informed that the Army was contemplating re-structuring of the Rashtriya Rifles Headquarters for better operational capability and strategic and logistic efficacy. Rashtriya Rifles (RR) force was raised soon after armed insurgency surfaced in Jammu and Kashmir in 1990. Ever since the force with headquarters in New Delhi has been fighting the jihadi armed groups raised and helped by Pakistan to sneak into our side of the border across both LoC and International border.

It is more than two decades and a half that the force is operating in J&K, particularly the valley. It has inflicted heavy losses on the enemy but has also suffered casualties at their hands. The question is not of numbers killed or captured. The real question is that after nearly twenty-seven years of operation, the institution and the network of armed insurgency have not been totally eliminated or destroyed. Therefore it becomes pertinent to find out why the situation is like this, and what are the precise countermeasures that might succeed at the end of the day to bring back normalcy to the war-torn State?

Let us analyze the issue threadbare. We call it a proxy war. That is a misnomer.  A proxy war is usually fought by mercenaries. Those who are fighting in Kashmir are not mercenaries but jihadis, and a jihadi is one who fights and dies for his religious conviction, and not for money. And those fighting for religion do so essentially owing to two motivations. One is that they are indoctrinated methodically in homes, seminaries, mosques, and public places that their religious beliefs demand them to fight for the global expansion and victory of the faith. It is not only to dominate the human society and civilization but to rule over it as ordained in their scriptures. The second component is that of hatred for the unbelievers, particularly the polytheists and idol-worshippers for whose destruction the faith was sent by the God.

These two motivations do not produce only the Islamic warriors but also a re-oriented Islamic society dovetailed to a distinctive ethos that must lend full support to the mission undertaken, especially when the enemy is a kafir. What is the overarching contour of the ethos in question? The entire society at home and its Diasporas anywhere in the world are enjoined by the conviction to get actively involved in the mission politically, psychologically, socially and financially. We naively give epithets such as Islamization or Wahhabization or Arabization to this emerging ethos whereas it is the intent of these Islamic ideologues to prepare the entire Muslim community for outright domination of humanity. Echoes of this have been seen in the war in Syria where Muslims from all across the globe who have gravitated towards this idea, have gathered to fight for the cause.

What has contributed to the strengthening of this ideology is the surprising success which it has been able to record, in theory and in practice in gradual stages. The current stage could be considered its culmination point, essentially because of the tremendous use of highly sophisticated and effective information technology of which the missionaries as a whole have made the fullest use. Therefore, no wonder that the jihadis sent from across the border to fight in Kashmir are equipped with the most sophisticated means of electronic communication, which the RR and other security establishments do not have or have to import belatedly.

The Islamic ethos sought to be created in our times involve the entire community, and not only the jihadis or their networks and organizations. The entire ummah is behind the mission and it is easily noticeable anywhere in the world as far as their operations in Kashmir are concerned.

Therefore, Indian security forces, be it the Police, BSF, CRP, ISBT, Commandos or the Army, one and all, have to understand that they are not fighting only the armed jihadis hiding somewhere in the forests away from the habitats but they are fighting an ideology. There may be a few hundred of the armed jihadis against whom the RR might exhibit superior tactics of fighting but what is to be realized is that the real war is with the large part of the society that has been radicalized. These people are unarmed and untrained for military operations, yet they most tenaciously support the gigantic mission of a new dominating and ruling ummah.  It is not a proxy war, it is actual fighting between two sides in which one side is motivated by a deeply embedded life-mission, and the other side is motivated by professional allegiance to a system.

Most of the political leadership in the State will not deviate an inch from the guidelines of the “divine” mission not for the sake of threat to life but because of the intensity of conviction. There is no threat to anybody’s life whatsoever in Kashmir and the crores of rupees spent on the security of so-called VIPs is sheer wasteful and unnecessary expenditure. These VIPs speak the language of the jihadis on public platforms, inside and outside the legislative assembly, in mosques, offices, on playing grounds, farms and fields, in marriage and in mourning assemblies, in hospitals and in clinics and all other conceivable places. The idiom is one, the intent is one, and the implication is one. And we have sycophants to lionize them who seem to be suffering from the Stockholm syndrome.

What does it mean to shift the RR Headquarters from New Delhi to Udhampur in J&K? Is this shifting a solution to the situation facing the Indian nation? It is not just the military which is engaged in this war, but the whole nation. Therefore, a national effort is required to come to grips with the situation. It is for the national leadership to take up this challenge.

We need to stop these pointless gimmicks and hollow gestures and come to grips with the matter at hand. The country is at war, and the war that is raging is totally different from the war we are used to knowing. This war is not a war of guns and bullets. It is not a war of eliminating a few jihadi terrorists. It is a war of the mind, a war of ideologies.

The above conceptualization puts to question not only our vast defense establishment but essentially our pattern of democracy and much-profaned secularism. The ground situation beckons for an awakening of the masses and propagation of an alternate ideology to confront jihadis thought. Why only pit the RR or other forces against the jihadis; the entire nation, its resources and its capabilities must be used.

The military needs to be given a free hand to deal with the terrorists in the valley. But more importantly, the entire nation, united as one must stand up to counter the violent extremist ideology prevalent in Kashmir valley and send out a message that jihadi extremist thought will not be acceptable in any part of India. This is the reason why legal provisions such as Article 370 and 35A which seek to divide people must have no place in India’s polity. This message too should go down to every nook and corner of the land, especially in the Kashmir valley.

It is not for the RR Headquarter to safeguard Indian democracy and the Indian way of life. It requires a collective national effort involving all elements of the state to see that Kashmir is retrieved. We should not let ourselves get blackmailed ever again.

(Prof. K.N. Pandita is the former Director of the Centre of Central Asian Studies, Kashmir University, and Srinagar.)