LAOT Monthly Newsletter - December 2021
Happy New Year to you and your families ! We sincerely hope that this year brings you and your loved ones health, happiness and prosperity.
Let's start the new year by catching up with all that we have done at LAOT in the month of December !
Book Discussion on Danish Sheikh’s Love and Reparation: A Theatrical Response to the Section 377 Litigation in India
Danish Sheik is a lawyer and playwright. His latest book Love and Reparation: A Theatrical Response to the Section 377 Litigation in India (Seagull Books, 2021) consists of two plays titled “Contempt” and “Pride”. Douglas Mcdonald has summarised the essence of the book in the introductory post for this book discussion.
The discussion started off with Akhil Kang’s piece titled ‘The Love doesn't love you’. Kang, while appreciating the ingenious way in which the work demonstrates “what crafting a relationship of repair with the law looks like”, criticized it for looking at sexuality in isolation.
In the second review piece titled To Live and Love in the shadow of Section 377, Kriti Sharma notes that the work “truly speaks to us on how to expand our love and repair our wounds.” Kriti also reflects on how both plays are trying to instill a sense of diversity- in thoughts, ideas and struggles-of people presumably grouped under a single umbrella term.
In the third review, Surabhi Shukla analyses and explains to the readers various subtle manoeuvres that Danish Sheik makes in the plays. A particularly insightful observation is that of how the play ‘Contempt’ demonstrates the very unpredictable nature of courts.
Discussion on Divine labours, devalued work: the continuing saga of India’s surrogacy regulation
As part of our New Scholarship Section on our Blog, we have been inviting discussants to respond to specific articles from the volumes of the India law Review. The earlier series can be found here: ILR Vol. 4 Issue 1, ILR Vol.4 Issue 2 and SLR Vol.41 Issue 2. Our fourth part of discussions under the New Scholarship series around public law themed articles will include pieces featured in the recently released 2021 Volume of the Indian Law Review and a link to all the responses to the Articles from this Volume of ILR can be found here.
The Surrogacy (Regulation) Bill, 2020 was enacted on 25 December, after receiving the presidential assent. In this article, Sneha Banerjee and Prabha Kotiswaran offer a feminist critique of the Surrogacy (Regulation) Bill, 2019, arguing that it reflects a limited understanding of the complexities of surrogacy, is discriminatory in its approach, is plagued by lack of clarity, is unrealistic and does not include adequate safeguards for the surrogate. They note that women’s reproductive labour in performing surrogacy is valorized but not compensated, and conclude that in its current form, the Bill is vulnerable to challenge on constitutional grounds. The central arguments in the article have been summarised by Eeshan Sonak (Editor LAOT) and can be accessed by clicking here.
In her response to the article, Anindita Majumbar appreciates the authors for their proactive approach in dealing with surrogacy in conjunction with concepts of “manifest arbitrariness” and “begar”. She furthers the argument from the standpoint of manifest arbitrariness by looking at the bill and the various issues it posits from the vantage point of ‘kinship’.
Swati Gola in her response praises the authors for raising the pertinent issue of streamlining surrogacy with associated assisted reproductive technologies (ART). Swati offers a two-fold criticism of the article: the first one relating to its lack of theoretical foundation and the second relating to its proposal of having full fledged contracts between the surrogate and the intending parents detailing the rights and duties of the parties.
Chayanika Shah in her response sets out a new framework for understanding the debate and clarifying the questions of who and what needs to be regulated by the bills. She feels that such an endeavour would help in “rectifying the fallacy within the bills”. She concludes by noting : both these bills need to go back to the drafting table. They are flawed in their logic, discriminatory in their approach and in the name of protection of women and children actually police them through reasserting heteronormative patriarchies.
The following blog posts were published in the month of December:
Talha Abdul Rahman, AOR, Supreme Court of India, in his piece titled ‘Digital Millennium Copyright Act and Suspension of Apps on Play Store’ , brings to fore the lopsided nature of the Digital Millennium Copyright Act (DMCA) and presents how “section 512 of DMCA is tilted in favour of the copyright holder with no effective or real remedy available to the alleged infringer”. The author, being a practitioner himself, ties the narrative of the piece with the practical difficulties that one of his clients had to face in lieu of the DMCA provisions. He concludes by noting : “The adjudication process under the DMCA does not account for the principle of equality of arms and rather reinforces copyright protection merely for the asking, without any real recourse to judicial review”.
Zaid Deva, an academic fellow at NLUD, in this must-read piece titled ‘Why the Jammu & Kashmir Constitutional Assembly debates Matter’, highlights the significance of the J&K Constituent Assembly Debates (J&KCAD) for constitutional interpretation and specifically notes how reliance on the Indian Constitutional Assembly Debates to interpret the J&K Constitution will produce“skewed constitutional narratives on Kashmir.” He notes: “the J&KCAD matter not just for interpreting Article 370 but also because they reveal certain important facets of constitution-making in J&K that have the potential to radically change how we have been looking at Article 370 until now”. To enable access to this very important resource, we have shared the digital copies of the J&KCAD and the Autonomy Report, 2000 on our website here. We thank Zaid Deva for providing us copies of these very important resources.
A recent UN report highlighted that the unprecedented political, socioeconomic, human rights and humanitarian crisis caused by 2021 military coup has pushed nearly half of Myanmar’s population into poverty. Senior Analyst Shanthan Reddy’s piece titled ‘2021 Myanmar Coup - Surprise or No Surprise’, analyses the recent military coup in Myanmar vis a vis the country’s questionable democratic status. The piece narrates how the claims of a ‘democratic transition’ occurring in Myanmar were not substantially true by explicating how the constitution vested wide powers on unelected military officials. The piece concludes by noting that the recent coup shouldn’t come as a surprise and that any future claim to transition should begin with the rewriting of the current Constitution.
The Election Laws (Amendment) Bill was passed in the winter session of the parliament, and inter alia seeks the linkage of Aadhaar and Voter ID cards. This move has been criticised for potentially infringing on the integrity and independence of the ECI, while also causing voter profiling, selective exclusion of voters and targeted campaigns. Senior Analyst Nitya Ravichandra's post titled ‘Aadhaar and Exclusion: The Public Distribution System in India' discusses the impact of Section 7 of the Aadhaar Act, which was put forth as a measure to include a larger number of deserving beneficiaries under welfare schemes in the country. The seeding of cards with Aadhaar, however, had the opposite effect of excluding a large number of beneficiaries from the system, thereby infringing upon the Right to Food, which has been recognised as a part of the Right to Life. In this backdrop, the constitutionality of the Aadhaar Act too is examined.
Reading Lists You Don't Want to Miss!
Radhika Radhakrishnan’s working paper titled Health Data as Wealth: Understanding Patient Rights in India within a Digital Ecosystem through a Feminist Approach analyses the datafication of health in India through emerging developments proposed under the National Digital Health Mission (NDHM) ecosystem, and its implications for the bodies and rights of people. It seeks to understand how datafication contributes to the disembodiment of health data in policy frameworks; the consequences of disembodiment for how people’s health data is understood to have value and who can benefit from that value, with a focus on health insurance companies; and how acknowledging the relationship between health data and bodies within policy frameworks can empower people to safeguard their right to equitable healthcare. LAOT’s twitter thread providing a brief overview of the paper can be accessed here.
The report, Legal Barriers to Accessing Safe Abortion Services in India: A Fact-Finding Study documents legal barriers faced by women in accessing safe abortion services, and the harm caused to women due to such barriers. Based on its findings, the report suggests measures for rights-oriented law reform. The report is authored by Aparna Chandra, Mrinal Satish, Shreya Shree and Mini Saxena and is a result of a collaborative exercise between the Centre for Reproductive Rights, NLUD and NLSIU. LAOT’s twitter thread providing a brief summary of the report can be accessed here.
That is it from our end for this month :)
Happy Reading !
Senior Analyst, Law and Other Things