Criminology of Stone Pelting During COVID-19 in India

By: AARUSHI KAPOOR and SSANJNNA GUPTA

Aarushi Kapoor is a third year student of Hidayatullah National Law University, Raipur. She has interests in Humanitarian law, International Laws and Corporate laws.

Ssanjnna Gupta is a third year student of Hidayatullah National Law University, Raipur. She has interests in International Law, Constitutional Law and Alternative Dispute Resolution.


 Largest unplanned national lockdown

India, a country with the second largest population in the world, imposed a nation-wide lockdown to cure the coronavirus among its citizens.[1] However, such a last-minute imposition of a lockdown was entirely unplanned. This decision has hit hard upon the lives of migrant workers who have realized the indifference of the authorities. The lack of responsiveness led to a situation wherein these migrant workers had to undertake a journey on foot to reach their hometowns from the bigger cities they were trapped in.[2] They struggled for basic needs like food, shelter, and employment and such a deprivation has resulted in the death of more than 400 migrant workers up to this point.[3] Some have died because of hunger while some in road accidents. As a consequence, a protest movement has developed within the migrant worker community.[4]

Criminal act presupposes Criminal intent  

While the Government plans to build a self-reliant nation, at the same time it seems equally reluctant to exhaust its resources upon the force which drives the nation i.e. labour-force.[5] The rift has widened to the extent that these laborers have come down upon pelting stones at the police. There have been reported instances of stone pelting by the migrant workers at the police and passers-by. Supposed examples of this include a busy road connecting IIM-Ahmedabad with vastrapur, the Palam Vihar of Gurugram, and the premises of IIT Hyderabad in Telangana.[6] In response, the State Governments are resorting to various penal provisions under the Indian Penal Code (“IPC”).[7] Section 307 is one of the various sections which is being invoked to try such alleged offenses as attempted murder. [8]

To determine whether the Government’s response is legally justified, it is important to question whether these alleged instances of stone pelting by the migrants legally qualifies as attempted-murder in any circumstance.For conviction under Section 307, all the ingredients of murder except death have to be proven.[9] The mens rea required for attempted murder is the same as that of murder under Section 300.[10] The burden of proof falls on the prosecution to prove that the act was done with the intention or knowledge of causing death or such bodily injury that the accused knew was likely to cause the death of that person,[11] or that the act done is so imminently dangerous that in all probability it will result in death.[12]

Given these legislative requirements, prosecuting these migrant workers under Section 307 for the act of stone is unjust.t The knowledge requirement in Section 300 (from which Section 307 is derived) is absent in this case because it requires a prior knowledge of some peculiar physical condition” of the victim.[13] One cannot prudently expect the migrant workers who needed to reach their hometowns to have gathered knowledge about the physical conditions of the policemen whom they attacked in the heat of the moment. Furthermore, it is noteworthy that any prosecution under Section 307 requires a twofold probe. In order for the act of stone pelting to amount to attempted to murder, has to satisfy this probe, which requires that  it should be intentional and  grievous enough to cause death. The act of stone pelting in the first instance did not injure the policemen in such a way that it would inevitably and in all circumstances cause death. Even for once in a distant interpretation, the stone pelting might be considered as either likely to cause death, however, the very act as illustrated in the present scenario can never be intentional. It is devoid of mala-fides.

Every criminal act requires the element of mens rea.[14] The migrant workers never had the intention to murder the policemen. Pelting stones at the police was a reaction to the discontentment they have been going through to survive the mismanagement of the government during this pandemic.[15] The migrant workers preferred making the stone a symbol of powerless anger.[16]

In consonance with this interpretation there has been a recent order by the Bombay High Court in Karan Nair v. State of Maharashtra wherein a man who attacked police for being asked to wear a mask was released due to absence of any criminal intention to attack the policemen.[17]  Furthermore, in Shabana M Ron v. State of Kerala, the Kerala High Court was once again granted bail to some of the stone pelters owing to their distressed psychology in the testing times of the pandemic. [18]

Hence, it becomes essential to ascertain the presence of a psychological and criminal intent in the mind of the accused. The migrant workers did not carry any weapons with them except for stones.[19] Although it is wrong to stone pelt police and bystanders, the protesters demanded accountability of the Government with respect to the discharge of their welfare duties; they did not intend to commit murder.[20] Such an act fails to have a criminal intent required for deliberately propelling unruly elements in the State.[21]

Exploring the Alternatives

Hence, instead of charging these individuals with the serious offences like Section 307, conviction under Section 270 IPC that is “malignant act likely to spread infection of disease dangerous to life” is more appropriate.[22] Those who throw stones at police and civilians can also be successfully convicted under Section 188 which punishes on account of disobedience of orders promulgated by the public servants tending to risk human life.[23]

Conclusion

India is a party to the International Covenant on Civil and Political Rights (“ICCPR”) and is obligated to adhere to the principles of the Convention.[24] Article 10 of ICCPR mandates to treat each individual with the requisite dignity.[25] The lockdown was an immediate measure taken up by the Government to curb the spread of COVID-19 but the inefficiencies and the consequences which followed due to lack national planning has affected the migrant workers financially and emotionally.[26] There is no doubt that the stone pelting by the distressed migrant workers upon the police led to a breach of law and order. The question which brims is that was it appropriate to legally charge the migrant workers with the heinous offences like murder? Charging these migrants with attempted murder was not legally justified—especially when other, less extreme charges, would have been more appropriate for the circumstances.

[1] Ramesh Luthra, Coronavirus India Lockdown Day, The Hindu (2020), https://www.thehindu.com/news/national/coronavirus-india-lockdown-august-27-2020-live-updates/article32452598.ece

[2] Madhunika Iyer, Migration in India and the Impact of the Lockdown on Migrants, The PRS India (2020), https://www.prsindia.org/theprsblog/migration-india-and-impact-lockdown-migrants

[3] Jawgar Sircar, A Long Look at Exactly Why and How India Failed its Migrant Workers, The Wire (2020), https://thewire.in/labour/lockdown-migrant-workers-policy-analysis

[4] Sundaram Srinisvasan, Hundreds of Migrant Workers Protest, The Times of India (2020),  https://timesofindia.indiatimes.com/india/mangaluru-hundreds-of-migrant-workers-protest-at-railway-station/articleshow/75624186.cms

[5] Adarsh Srivastava, Protest or Rebel, The Tribune (2020),  https://www.tribuneindia.com/news/delhi/50-migrant-workers-booked-after-clashes-with-haryana-police-near-delhi-gurugram-border-87398

[6] Ibid.

[7] M.P. Nathanael, Licensed to beat, abuse and kill, The Hindu (2020),  https://www.thehindu.com/opinion/op-ed/licensed-to-beat-abuse-and-kill/article31609626.ece

[8] Geeta Pandey, Desperate Migrant Workers trapped in Lockdown, The BBC (2020),  https://www.bbc.com/news/world-asia-india-52360757

[9] Siddarth Bhatia, Why Indian Don’t Come Out on the Streets Against Regular Police Brutality, The Wire (2020), https://thewire.in/rights/george-floyd-protests-india-police-brutality

[10] Ashmita Nandy, Why migrant workers long for home, The Quint (2020), https://www.thequint.com/videos/coronavirus-lockdown-why-are-surat-migrant-labourers-protesting-to-go-home

[11] Saba, To attract S. 307 IPC, there must be intention or knowledge on part of accused, The SCC Online Blog (2020), https://www.scconline.com/blog/post/2017/12/27/attract-s-307-ipc-must-intention-knowledge-part-accused/

[12] Ibid.

[13] Yogesh v State of Maharashtra (2019) 5 SCC OnLine Bom 1039.

[14] Sarosh Bana, The Government is not interested in stopping torture by the police, The National Herald (2020), https://www.nationalheraldindia.com/opinion/the-government-is-not-interested-in-stopping-torture-by-the-police

[15] Joe Wallen, Protests break out in India as Migrant workers stranded and starving far from home, The Telegraph (2020), https://www.telegraph.co.uk/news/2020/04/17/protests-break-india-migrant-workers-stranded-starving-far-home/

[16] Ibid.

[17] Karan Nair v State of Maharashtra, (2020) 8 SCC 457, ¶ 81.

[18] Shabana M Ron v State of Kerala, (2020) 7 SCC 859, ¶ 14.

[19] Lockdown: Migrant Workers clash with Police in Gujarat, The Economic Times (2020), https://economictimes.indiatimes.com/news/politics-and-nation/migrant-workers-pelt-stones-at-police-in-surat/articleshow/75533181.cms

[20] Nathulal v State of Maharashtra, (1966) 4 SCC 43.

[21] State Of Gujarat v Chauhan Mulsinh Cheharsinh, (2004) 7 SCC OnLineGuj 4847

[22] Tarunabh Khaitan,  What Courts Say, What Courts Do, UK Constitutional Law Association ( 2014), https://ukconstitutionallaw.org/2014/04/24/tarunabh-khaitan-nalsa-v-union-of-india-what-courts-say-what-courts-do/

[23] Ibid.

[24]  “General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law”. UN OHCHR. 13 April 1984. Retrieved 10 October 2010.

[25] International Federation for Human Rights, India: Government fails to address key human rights concerns during UN review, 21 September 2017, available at: https://www.refworld.org/docid/59c8e62b4.html %5Baccessed 15 September 2020]

[26] Ibid.

Abandoning Climate Refugees: A “Crime against Humanity” under International Criminal Law?

By: TIRTHARAJ CHOUDHURY and DEEKSHA SHARMA


On 7 January 2020, the United Nations Human Rights Committee decided that international refugees should not be sent home.[1] This decision was handed down by the committee after examining the case of Ioane Teitiota, a Kiribati citizen of South Tarawa, who was seeking refugee rights in New Zealand, but was denied. While upholding New Zealand’s decision, the Committee agreed that climate threats would in the future prevent international law states from returning refugees to their own countries. This decision is quite relevant in relation to international criminal law and the responsibility to protect Environmental Refugees.[2] “Environmental refugee”, a term coined by Essam El-Hinnawi, identifies people who have been forced to leave their traditional habitat temporarily or permanently because of a significant environmental (natural and/or human-induced) disturbance that endangers their life and/or seriously affects the quality of their lives.[3]

As international refugee law fails to take into consideration climate/ecological refugees, the article suggests that international criminal law could be resorted to in this situation. The article will clarify the application of international criminal law, in particular “Crimes Against Humanity” (CAH) for the protection of refugees due to climate change, natural disasters and environmental crimes. CAH have been a measure in international court tribunals for acts that “shocked the conscience of mankind”.[4]

Slow-onset disasters, fueled by climate change render places uninhabitable by creeping up on communities. While their relatively slow evolution offers an opportunity to prepare appropriate responses, the perceived lack of urgency can pose a significant challenge for those affected.[5] This takes into consideration the country’s own legislation on disaster prevention, but the legislation in some countries does not include slow-onset disasters and climate induced sudden events, such as super-cyclones for example. In these scenarios, man’s presence and his actions alter the nature and extent of a disaster.[6] A similar thing happened when Cyclone Amphan caused massive damage and destruction in India.[7] It is also possible to draw a connection between mass crimes and climate change, both of which endanger the most basic rights of the population.[8] Jessica Cooper goes a step further, suggesting that both slow-onset disasters related to climate change and sudden natural disasters can be regarded as persecution.[9] In order to satisfy the criterion of persecution for a specific cause, Cooper claims that the ecologically displaced people are being persecuted on the grounds that they belong to a certain social community, namely a category of individuals who are politically helpless to defend their environment.[10]

The second situation is the assistance by the international community in a timely manner. Previously, Russian scientists had reported that a small Arctic island had disappeared, saying that only open water remained at the site. In these recent examples, the islands were small and uninhabited, but scientists say the fate of these tiny pieces of land could be a harbinger of what is to come.[11] Researchers also expect that before the end of this century, islands such as Maldives, Tuvalu and, Fiji will be underwater.

CAH has an expounding and evolving context, and from what we have witnessed, it has been in the process of gradual development since its inception. Potential CAH cases brought under the ICC may occur as states plan to expel individuals fleeing environmental catastrophe in home countries, posing a threat to life.[12] Again, it is problematic that states with the resources and the potential to offer shelter for fleeing communities do not provide refuge in their countries as the universal concept of refugees does not cover climate refugees.[13] This implements the “burden sharing” of the detrimental impact of climate change on the refugee-hosting community.[14]

The third situation concerns man-made disasters that directly affect the environment, such as illegal wildlife trade, river dumping and unrestricted logging, the result of which is ecological refugees. Westra in her book, Environmental Justice and the Rights of Ecological Refugees notes that the case states ICC cases for the former Yugoslavia and the Rome Legislation are illustrative of the open essence of CAH, which indicate that they would accommodate ecological crimes. She further says that CAH take into consideration the lower mens rea level of “knowledge of an attack” making ecological crimes a perfect fit for this category.[15]

Conclusion

As environmental disasters, caused by climate change or otherwise, worsen, increasing populations suffer from the negative effects of climate change by death or displacement. With this comes the so-called Responsibility to Protect of home states and the international community, failure to comply with which should count as a CAH and such incidents should be brought under the jurisdiction of ICC. We need to look towards international criminal law and its amalgamation with International Environmental Law for solutions, the demand for which keeps rising daily. Though steps are slowly being taken to reduce emissions to cut down on our carbon footprint, it is still not enough. It is high time for international law to pay heed to this rapidly deteriorating situation at hand.

[1] Refworld. 2020. Refworld | Ioane Teitiota V. New Zealand (Advance Unedited Version), https://www.refworld.org/cases,HRC,5e26f7134.html.

[2] Melinna Godin, Climate Refugees Cannot Be Sent Home, U.N. Rules | Time (2020), https://time.com/5768347/climate-refugees-un-ioane-teitiota/.

[3] Globalization101, http://www.globalization101.org/environmental-refugees/#:~:text=%E2%80%9CEnvironmental%20refugee%E2%80%9D%2C%20a%20term,seriously%20effects%20the%20quality%20of.

[4] Charles Jalloh, What Makes a Crime Against Humanity a Crime Against Humanity? (28 ed. 2013), American University International Law Review.

[5] Elisa Alonzo, Slow onset disasters: where climate change adaptation and disaster risk reduction meet | PreventionWeb.net (2017), https://www.preventionweb.net/news/view/53004.

[6] IDRL Guidelines at the 31st International Conference,, https://www.ifrc.org/en/what-we-do/disaster-law/about-disaster-law/international-disaster-response-laws-rules-and-principles/idrl-guidelines/.

[7] Architesh Panda, Climate Change, Displacement, and Managed Retreat in Coastal India (2020), https://www.migrationpolicy.org/article/climate-change-displacement-managed-retreat-india.

[8] Naser, Mostafa. (2013). Climate Change induced Displacement: Definitional Issues and Concerns. Chicago-Kent Journal of Environmental and Energy Law. 2.

[9] Jessica Cooper, Note, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Envtl. L.J. 480, 503 (1998), at 509.

[10] Shouvik Guha, According Refugee Protection to Environmental Migrants: An overview under International Refugee Law (2 ed.), International Journal of International Law.

[11] Denise Chow, Three islands disappeared in the past year. Is climate change to blame? (2019), https://www.nbcnews.com/mach/science/three-islands-disappeared-past-year-climate-change-blame-ncna1015316.

[12] Charles Chernor Jalloh, What Makes a Crime Against Humanity a Crime Against Humanity? , 28 Am. U. Int’l L. Rev. 381 (2013), https://ecollections.law.fiu.edu/cgi/viewcontent.cgi?article=1246&context=faculty_publications#:~:text=30%2C%202012)%20(defining%20crimes,religious%20or%20political%20grounds%22).

[13] Peter Lehner, Environment, Law, and Nonprofits: How NGOs Shape Our Laws, Health, and Communities, 26 Pace Envtl. L. Rev. 19 (2009), https://digitalcommons.pace.edu/pelr/vol26/iss1/2/

[14] Nafess Ahmad, Overheating the Humanitarian Law in contemporary international relations (2018), https://www.ifimes.org/en/9551.

[15] Laura Westra, Environmental Justice and the Rights of Ecological Refugees 188 (2009).

NALSA Judgment: Critique of the Indian Perspective Beyond the Adams-and-Eves Worldview

By: AASTHA KHANNA and DIVESH SAWHNEY 

Aastha Khanna, LL.B. student, Law Centre-1, Faculty of Law, University of Delhi; aasthakhanna0204@gmail.com
Divesh Sawhney, LL.B. student, Law Centre-1, Faculty of Law, University of Delhi; divesh.sawhney2@gmail.com

     Fifty Eight… Beyond the man-woman binary, there are as many 58 gender variants.[1]. Transgender persons’ lives are no longer footnotes in the law books, their identities are no longer uniformly bound to surgical requirements. The Judicial ken on the subject has come out of the valley of shadows to bask in the glistening sunlight of liberty — from Corbett’s[2] heretic ‘biological test’/’gender dysphoria’ era to the unstinted ‘psychological aspect’/ equality principle gaining ground in recent dicta of U.S Supreme Court,[3] African Court[4] and Malaysian Court[5], among others.

     From India’s perspective, NALSA judgment[6] is a monumental step in the right direction. It has unclipped the wings of an egalitarian society; and the apostles of gender-binary heresy are not so much beaten as overawed. The Court drew an analogy between trans-community and untouchables — both wracked and ostracized by the society. The wails of untouchables in India have been somewhat atoned, and the time is ripe to follow the same course for the rights of trans-community.

TERMINOLOGY & SEMANTICS

     A court of law is a house of semantics. It settles the deep meaning of terminology employed in legislations, rules and what not. The NALSA Court also endeavored to expound the widely used terms attributed to the trans-community — though the Court’s propriety is another aspect. Even the sky-high intellects conflate these terminologies, but a Court can never afford to be enmeshed. For it is upon the Court to decide and accord rights based on the categorization it employs.

Women- gender; Female- Sex[7]

     To phrase it mildly, the Court committed an error in tangling the most basic conceptual difference between the foregoing terms. It employed the terms interchangeably rendering the judgment less scrutable. Eschewing from further dwelling on this, let’s consider the Court assumed male, female to be genders not sex.

     The Apex court, to some extent, drew an understanding of trans terminology, especially the terms ‘sexual orientation’ and ‘gender identity’ inter alia. 

     The judgment neglected the grammatical aspect of the word ‘transgender’ by employing it at various places as noun instead of adjective. This term is analogous to the adjectival ‘female’ and ‘male’, therefore, its usage as a noun is derogatory to the people belonging to trans-community and reduces them to a mere object.[8]

     Further, the Court defined ‘transgender’ as an umbrella term for persons whose gender identity lies outside the pigeonhole compartments of sexual binary. The Court eloquently categorized the Indian trans-community under the set of Hijras[9]. It also entailed male-to-female transgender persons. But then the question poses — what about female-to-male transgender persons (trans-men)? More so, a bare perusal of the directions issued in the judgment further obscure the point. ‘Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for purpose of safeguarding their rights under part III of our Constitution…’[10] Now, this circumscribes rights to Hijras and Eunuchs, while already categorizing the whole community under the rubric of Hjras.

     Interestingly, whilst the categories of ‘male’ and ‘female’ are viewed through the lens of sex, it is only the ‘transgender’ category that is viewed through the lens of gender. As a corollary, transgender should be recognized as the first gender as opposed to third gender. [11]      Indeed, something to ponder over.

CONSTITUTIONAL RECOGNITION TO TRANSGENDER PERSONS

‘It is the business of the state… to maintain the conditions without which free exercise of the human faculties is impossible.’[12]

     And what possibly can surpass the liberty to express your ‘individualism.’ Ergo, Justice K.S.P Radhakrishnan. grandiloquently reflected the interplay between Articles 14, 15, 16, 19(1)(a), and 21 of the Constitution. The ensuing paragraphs delineate this interplay.

  • ARTICLE 14[13]: The major argument of the Court revolved around the fact that Article 14 employs the word ‘person’, which, as per the purposive interpretation given by the Court in the instant case, includes not only the Victorian era genders, viz., men and women but also genders outside binary. The Court, therefore, declared that transgender persons enjoy as much equal protection of law and equality before law as other genders.
  • ARTICLES 15[14] & 16[15]: The Court interpreted the word ‘sex’ under Article 15 and 16 so as to entail prohibition on gender bias and gender-based discrimination. It went a step ahead and emphasized that Constitution makers intended to prevent direct or indirect discrimination among people for not being in conformity with stereotypical generalizations of gender binary. It further recognized that transgender persons are legally entitled safe access to public places under Article 15(2); and benefits of reservation in educational institutions and public appointments as socially and educationally backward classes under Article 15(4), and for that matter under Article 16(4) as backward classes.[16]

     Given the foregoing explication by the Court, can it be inferred that a trans-woman will be entitled to the same special provisions under Articles 15 and 16 as a cisgender woman? The answer to this question is nowhere to be found in the judgment.

     Apart from this, the Court, though in tune with the ‘separation of powers’, passes the buck to the legislature for delineating a reservation policy for this ostracized community. Now, transgender persons may be layered under different caste identities, what if there is a prepossession in favor of a cisgender woman over a transgender woman, when both fall under the same caste reservation bracket? The Court could have glossed on this issue by dealing with horizontal reservations cutting across the vertical categories of caste, but it eschewed from doing so.[17] This, invariably, would lead to further litigation as instantiated in Grace Banu Ganesan v. State of Tamil Nadu & Ors.[18]

  • ARTICLE 19[19]: ‘Outside gender binary, there are only pathology and disability’[20], this endemic perception has always been repugnant to the moral precepts; and the NALSA judgment discredited all these fallacious norms by extending constitutional rights and protection to transgender persons. The Court unequivocally held that no restriction, save and except those mentioned in Article 19(2), can be placed on one’s personal expression, mannerism and clothing. It relied heavily on two foreign judgments, viz., City of Chicago v. Wilson et al.[21] and Doe v. Yunits et al.[22] which talk about the values of privacy, self-identity and gender expression through cross dressing.[23]
  • ARTICLE 21[24]: Wealth and opulence may be possessions of few, but liberty must be bestowed upon everybody. With this object in mind, the makers of the Constitution drafted Article 21- the heart and soul of Indian Constitution. It entitles every person — which is again a gender-neutral word and thus equally applies to man, woman and transgender persons — not only the right of mere existence but to live with dignity. Concomitantly, self-perceived gender identity and expression — a linchpin of dignified life — falls within the ambit of right to life under Article 21.

     The Hon’ble Supreme Court, while displaying panoply of transformative constitutionalism, in NALSA judgment emphasized the need to read the Constitution as a ‘living document’[25] in light of the present socio-political scenario. The judgment impresses upon the fact that legal recognition of gender identity is a part of right to dignity and freedom; and self-determination of gender is an integral part of personal autonomy, self-expression and personal liberty guaranteed under Article 21. Hence, any restriction on any person’s liberty to decide zir[26] lived gender,[27] gender identity or expression[28] infracts Article 21.

     Fundamental Rights not only protect individuals and minorities from the whims and vagaries of State action, rather they have also been shaped to protect individuals against transgressions by private citizens. For instance, Article 15(2) foils restriction or disablement of any citizen from accessing to public places on account of zir[29] religion, race, caste, sex, or place of birth; Article 17[30] abolishes untouchability; Article 23[31] proscribes forced labor. Thus the State, in addition to conforming to the Constitution’s injunctions not to fetter citizen’s liberties, must also fulfil its duty to protect citizen’s rights from being encroached by the society. This principle is of cardinal importance in case of transgender persons who are constantly subjected to society’s virulent deportment.

     Are fundamental Rights the only safeguard etched in the Constitution? The pat answer is no. If the Fundamental Rights are an edifice, the Directive Principles of State Policies (‘DPSPs’) are the scaffolding that lays a sturdy foundation. One delineates the negative obligations, whereas the other pens down the positive duties of the State. The Hon’ble Supreme Court in NALSA judgment also referred to DPSPs — especially Article 51 dealing with international law — while directing the States to fulfil their obligations. Though DPSPs are not justiciable, they are of equal, if not more, pertinence.[32] Hence the NALSA judgment manifests the Court’s overarching and expansive intendment to tip the scales in favor of equity — which perforce is of first importance.

     This sweeping interpretation of rights can also be witnessed in the rather recent judgment of K.S. Puttaswamy v. Union of India[33] wherein the rotten law of ADM Jabalpur[34]was purged. In an eloquent passage, Lord Mansfield opined ‘I care not for the supposed dicta of judges, however eminent, if they be contrary to all principle.’

DIRECTIONS

     The directions given by the Court obscure more than they illuminate. As mentioned previously, the independent reading of first and second direction renders them diametrically opposite. While the first direction recognizes hijras as third gender, the second direction gives transgender persons the right to choose between being ‘female, male or third gender.’ The question is whether hijras also have the right to choose from the binary.[35]

     Other directives like separate toilet facilities, HIV sero-surveillance centers, recognition as socially and educationally backward,[36] medical care facilities, inclusion of transgender persons in society by spreading awareness, and framing of various welfare schemes are impressive and applaud-worthy. However, implementation of such embracing directions will be a herculean task. The orders are so broad and vague, that it would be difficult to hold anyone accountable for their non-compliance.

     Despite the fervent criticism displayed in this article, the judgment has decidedly provided some perspective for discourse over transgender rights in India. And, it is not an end, but only a springboard to travail further. 

THE EVOLVING INDIAN PERSPECTIVE

     The melancholic tale of Khairati,[37] the tragic victim of rigid gender binary, speaks volumes of the absence of empathy in the colonial courts to comprehend what Khairati experienced. Unfortunately, this absence continued into independent India. The language and dimensions of Constitution never applied to the lives of transgender persons.

     Only when the NALSA Court cracked open this legal mold and refused to categorize humans into an orthodox quagmire of societal identities, formulating an eclectic theory of transgender rights, that the Courts and wider public (NALSA Judgment & Beyond’- survey[38]) began to see transgender community through the lens of dignity. Now that gender identity- the gatekeeper to other rights – has been recognized, the other set of monolithic heresies on same-sex marriage, consensual cohabitation, among other things,[39] must be scotched. No democracy can blossom when contraries are labeled heretics. Now, the onus is upon us to help this downtrodden community to vault from the cavernous depths of marginalization, and soar in the sky of tranquility and contentment, which can only be achieved through social reforms.[40]

     This Internationally hailed case and the resultant legislation[41] are beginning of an end, of the dilemma of a transgender person’s life, beautifully expressed by the illustrious author Arundhati Roy in the following words:

 

“She, who never knew which box to tick, which queue to stand in, which public toilet to enter (Kings or Queens? Lords or Ladies? Sirs or Hers?)

She, who knew she was all wrong, always wrong.

She, augmented by her ambiguity.”[42]


[1] Arun Kumar and Anr v. Inspector General of Registration and Ors, (2019) SCC OnLine Mad 8779, ¶17; Following the policy of inclusivity, social media platforms like Facebook and Tinder now allow users to choose from 58 and 37 gender identities respectively while signing up.

[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, ¶81.

[3] Bostock v. Clayton County, Georgia, 590 U.S. ____ (2020)

[4] Motshidiemang v. Attorney General, MAHGB-000591-16; see also, EG v. Attorney General, Petition Nos. 150 and 234 of 2016.

[5] Muhamad Juzaili Bin Mohd Khamis v. State Government of Negeri Sembilan, N-01-498-11/2012.

[6] National legal Services Authority v. Union of India (hereinafter, ‘NALSA’), (2014) 5 SCC 438

[7] GLAAD Media Reference Guide- Transgender, https://www.glaad.org/reference/transgender (Last visited on June 25, 2020); see also, Gender Definitions, World health Organisation, Regional Office for Europe, available at https://www.euro.who.int/en/health-topics/health-determinants/gender/gender-definitions (Last visited on June 25, 2020);  Mikkola, Mari, “Feminist Perspectives on Sex and Gender”, The Stanford Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.), available at, https://plato.stanford.edu/archives/fall2019/entries/feminism-gender. (Last visited on June 25, 2020); Office of National Statistics (UK), What is the difference between sex and gender?, available at https://www.ons.gov.uk/economy/environmentalaccounts/articles/whatisthedifferencebetweensexandgender/2019-02-21 (Last visited on July 3, 2020),

[8] HUMAN LAW RIGHTS NETWORK, People’s Inquiry into the status of the implementation of the NALSA judgment (November 2016), available at http://reproductiverights.hrln.org/wp-content/uploads/2017/04/nalsa-ipt-report.pdf (Last visited on June 25, 2020); see also, VIDHI CENTRE FOR LEGAL POLICY, Comments on the Transgender Persons (Protection of Rights) Bill, 2016, available at, https://vidhilegalpolicy.in/wp-content/uploads/2019/05/SubmissionsontheTransgenderBill2016.pdf (Last visited on June 25, 2020)

[9] NALSA, at ¶47

[10] NALSA, at ¶135.1

[11] VIDHI CENTRE FOR LEGAL POLICY, Queering the Law: Making Indian Laws LGBT+ Inclusive (July 2019), available at https://vidhilegalpolicy.in/wp-content/uploads/2019/07/Queering-the-Law_Introduction.pdf. (Last visited on June 25, 2020)

[12] THOMAS HILL GREEN, LIBERAL LEGILATION AND FREEDOM OF CONTRACT 9-15 (1861)

[13] Article 14: Equality before law.

[14] Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

[15] Article 16: Equality of opportunity in matters of public employment

[16] NALSA, at ¶¶63-68

[17] Tarunabh Khaitan, NALSA v. Union of India: What Courts Say, What Courts Do, UK Constitutional Law Association (April 24, 2014), available at https://ukconstitutionallaw.org/2014/04/24/tarunabh-khaitan-nalsa-v-union-of-india-what-courts-say-what-courts-do/ (Last visited on June 25, 2020)

[18] W.P. 6052/2019 (CNR Number: HCMA01-031907-2019)

[19] Article 19: Protection of certain rights regarding freedom of speech, etc.

[20] PAUL B. PRECIADO, COUNTER-SEXUAL MANIFESTO 5 (2018)

[21] 75 III.2d 525(1978)

[22] 2000 WL33162199 (Mass. Super.)

[23] NALSA, at ¶¶ 70.1, 70.2.

[24] Article 21: Protection of Life and Personal Liberty

[25] The doctrine of ‘Living Tree’, a Canadian law doctrine describes Constitution as a living document, which keeps evolving with the changing times. The meaning of the Constitution may not be frozen to the perspective when it was adopted.

[26] Gender neutral pronoun used for a person existing outside the binary.

[27] “lived gender” refers to each person’s gender identity and its public expression over a sustained period of time, See Gender Identity, Gender Expression and Sex Characteristics Act, 2015 (Republic of Malta) Cl. 2.

[28] “gender expression” refers to each person’s manifestation of their gender identity, and, or the one that is perceived by others, see Gender Identity, Gender Expression and Sex Characteristics Act, 2015 (Republic of Malta) Cl. 2.

[29] Supra note 25

[30] Article 17: Abolition of Untouchability

[31] Article 23: Prohibition of traffic in human beings and forced labour.

[32] NALSA, at ¶ 102 (per Dr. A.K. Sikri J.)

[33] Justice (Retd.) K.S. Puttaswamy v. Union of India (2017) 10 SCC 1

[34] (1976) 2 SCC 521

[35] Tarunabh Khaitan, NALSA v. Union of India: What Courts Say, What Courts Do, UK Constitutional Law Association (April 24, 2014), available at https://ukconstitutionallaw.org/2014/04/24/tarunabh-khaitan-nalsa-v-union-of-india-what-courts-say-what-courts-do/

[36]  John W. Armour, Compenatory Discrimination: The Indian Constitution and Judicial Review, (16) MELBOURNE UNIVERSITY LAW REVIEW 126, 135-136 (1987); See also, The Constitution of India, 1950, Art. 342A.

[37] Queen Empress v. Khairati I.L.R. 6 All 205. This was the first reported case of the use of Section 377 against a person described by the Court as a ‘eunuch’. This case goes back to 1884 when a person named Khairati was arrested and tried under section 377 on the grounds of habitually wearing women’s clothes and committing sodomy. Although Khairati was ultimately acquitted by the Court due to the lack of evidence, the key point in the case was the violence and brutality she was subjected to during the legal proceedings.

[38] A survey, ‘NALSA Judgment & Beyond’, was conducted in June 2020 to study the public attitude towards transgender persons post NALSA judgment. The graphical representation of the inference drawn is available at https://drive.google.com/file/d/12TP-uAxMcv6uGVjwbtetnBGCqMVNXkBe/view?usp=sharing

[39] Uttarakhand High Court in Madhu Bala v. State of Uttarakhand [Habeas Corpus Petition No. 8 of 2020] interpreted the consensual cohabitation between two adults of same sex within the ambit of Article 21(Right to life and Personal Liberty); see also, a Writ Petition filed in Kerala High Court in Jan 2020 wherein the petitioner has prayed for recognition of same-sex marriage under Special Marriage Act, 1954 available at https://www.livelaw.in/pdf_upload/pdf_upload-369544.pdf (Last visited on June 25, 2020); Madras High Court in Arun Kumar and Anr v. Inspector General of Registration and Ors, (2019) SCC OnLine Mad 8779 held that a transwoman is a ‘bride’ under Hindu Marriage Act, 1955.          

[40] The Noida Metro Rail Corporation (NMRC) has recently decided to dedicate Noida’s Sector 50 Metro Station to transgender community by renaming it to ‘Rainbow Station’; Ministry of Home Affairs (MHA) recently sought views of paramilitary forces on recruiting transgender people in central paramilitary forces and Indian Army.

[41] Transgender Persons (Protection of Rights) Act, 2019, 40 of 2019

[42] ARUNDHATI ROY, THE MINISTRY OF UTMOST HAPPINESS 122 Penguin Books 2018.

Analyzing the Indo-China Border Dispute: An International Law Perspective Through the Prism of India

By: ISHAN KUMAR and NAMAN KATYAL

Ishan Kumar is a third year undergraduate student pursuing a Bachelor’s degree in legislative laws. He attends Gujarat National Law University(GNLU) in Gandhinagar, India.

Naman Katyal is a third year undergraduate student pursuing a Bachelor’s degree in legislative laws. He attends Gujarat National Law University(GNLU) in Gandhinagar, India.


Introduction

Two of the world’s nuclear powers, India and China are locked in a border dispute in the Pangong Tso and Galwan Valley areas of Eastern Ladakh along the Line of Actual Control (“LAC”).[1] The LAC is a demarcation line along the Indo-China border based on the differing perception of the border by both sides and functions as the de-facto border between the two nations since both sides have consistently failed to establish a demarcated border due to China’s refusal to recognize the validity of the Simla Accord of 1914 and the Panchsheel Treaty of 1954 in the eyes of international law.[2]

The dispute turned violent for the first time in 45 years at the largely peaceful border on June 15, 2020, when the Indian side suffered a casualty count of 20 soldiers in a melee with Chinese troops.[3] Reports also indicate that the Chinese side lost 43 soldiers.[4] The Chinese have refused to reveal the exact count.[5]

This article analyzes the Indo-China border dispute by evaluating the validity of the aforementioned treaties in international law through an Indian perspective. The authors postulate that a third-party dispute settlement can be a suitable mechanism through which the dispute could be resolved.

Tracing the Roots

The Indo-China border dispute dates back to the nineteenth century with the first treaty signed between the independent forces of the two nations coming into effect only in 1842.[6] Since then, several attempts have been made to demarcate the boundary between the two nations.

The Simla Accord of 1914 established the McMahon Line as the boundary between the two nations.[7] The Panchsheel Treaty signed in 1954 was another historic agreement between the two sides.[8] However, both the agreements failed to resolve the border dispute and as a consequence the Indo-China war occurred in 1962. During this time, the People’s Liberation Army of China annexed parts of India’s Ladakh region.[9]

Sustained attempts to achieve peace and tranquility at the border resulted in several other agreements in 1993, 1996, 2003, 2005, 2012, and 2013.[10] Nonetheless, the tension at the LAC remains unresolved.

Legitimacy of the Simla Accord the Eyes of International Law

The Simla Accord of 1914 was a treaty negotiated amongst the representatives of British India, the Republic of China, and Tibet to define the boundary between Tibet and British India, as well as Tibet and China.[11] Although China participated in the negotiation of the treaty, it declined to sign the convention and the British and Tibetan plenipotentiaries signed it as a bilateral declaration and denied China any privileges.[12] The boundary between Tibet and British India came to be known as the McMahon Line.[13]

China’s refusal to recognize the Simla Accord as a legally binding treaty primarily stems from this very reason. The fact that no Chinese Central Government ever ratified the treaty also features as one of the objections by China in recognizing the Simla Accord as legally binding.[14] Furthermore, China has also lamented that the Accord was “a product of British policy of aggression against the Tibet Region of China”, [15] and therefore an unequal treaty.[16]

China’s contention that the Chinese plenipotentiary refused to sign the declaration, and, in any case, no Chinese Central Government ever ratified the treaty fails on two grounds. Firstly, the collapse of talks was on the issue of settlement of the border between Tibet and China, not Tibet and British India.[17] Subsequently, a bilateral agreement between Tibet and British India duly defined the boundary between both signatories.[18]  China’s assent was not required to demarcate the boundary between Tibet and British India, as Tibet had control over its foreign affairs in 1914.[19] Secondly, the treaty, per Article 11 of the Accord, was to take effect from the date of signature and no explicit provision of the treaty stipulated ratification.[20]

Even if the Chinese contentions are accepted, even then the subsequent action of incorporating the updated map in official records and successive conduct of not raising the dispute for 45 years (until 1959) after the signing of the treaty belie the Chinese claim.[21] The doctrine of acquiescence requires the acquiescent party to raise any objection to the infringement of its rights and failure to do so can be held against it if the objection is raised after long-term acquiescence.[22] In the Pedra Branca islands dispute case, Singapore’s central argument that for 130 years–that Singapore’s exercise of sovereignty over the islands was not challenged by Malaysia–was accepted by the ICJ and the Sovereignty over the islands recognized to belong to Singapore.[23]

Further, China’s argument that Simla Accord was an unequal treaty given the aggressive policy adopted by the British against China also fails to advance the Chinese contention that Simla Accord cannot be recognized as legally binding. Even if a treaty includes provisions that appear unequal, a party cannot invoke the principle of inequality to invalidate the treaty if there is no coercion or use of force.[24] The Simla Accord came into force after exhaustive negotiations which spanned over a period of six-months and were based on an explicit authorization from the Chinese government.[25] This demonstrates that the Chinese government was under no duress from the British and acted without any inhibitions.

Panchsheel Treaty As a Political Document?

The Panchsheel Treaty is a set of Five Principles of Peaceful Coexistence enshrined in the preamble to the “Agreement on trade and intercourse between Tibet Region of China and India” which was signed in 1954.[26] The first principle of the treaty envisaged mutual respect for one another’s territorial integrity and sovereignty. The treaty was signed after meticulous negotiations with almost all aspects of the Indo-China relations being discussed but no border dispute was raised.[27]

All this put the then Prime Minister of India under the impression that there were no border disputes between the two countries.[28] Meanwhile, China continued to term the treaty as a political document for bargaining bilaterally and not a treaty that would be subjected to interpretations by international courts.[29] The Chinese government’s stand of subverting the treaty does not stand ground in International Law as oral declarations made by government functionaries have been held to be valid and binding. For instance, in the Eastern Greenland case, an oral statement given by Norway’s Foreign Minister was considered by the Permanent Court of International Justice to be binding on Norway. [30]

Moving Towards a Resolution

The Indo-China border dispute has now turned at least 65 years old with no significant breakthrough in defining the border.[31] Even the most rudimentary task of exchanging maps to understand the differing perception of the two nations with respect to the LAC has not been concluded.[32] The prospects of a resolution secured through bilateral arrangements look improbable. Other mechanisms to resolve the dispute need to be considered.

One such recourse could be to make use of a third-party dispute settlement mechanism. The third-party dispute settlement mechanism allows a party that is external to the dispute to help the disputants reach a settlement.[33]  A combined reading of Article 33(1) and 33(2) of the UN Charter authorizes the UN Security Council to call upon the parties to a dispute to resolve their differences through means stated in Article 33(1) (which includes third-party means).[34]

In the past, third-party interventions in dispute settlement have yielded positive results. The Rio Protocol of 1942 was signed by the governments of Peru and Ecuador (the disputants) with Brazil, Argentina, Chile, and the United States, wherein the latter four nations would act as guarantors for the former two.[35] This agreement led to the successful demarcation of 95% of the disputed border by 1946.[36] Similar instances include the role of the Pope and Algeria in successfully adjudicating the Argentina-Chile Beagle Channel Dispute and the Iran hostage’s crisis, respectively.[37] [38]

Russia could be asked to mediate between India and China by virtue of it sharing cordial relations with both the countries.[39] India and Russia have enjoyed a longstanding “special and privileged strategic partnership. [40] On similar lines, Russia and China have a plethora of common interests, which prominently includes ending the dynamics of the US-dominated unipolar world.[41] Also, Russia has prior experience of attempting to settle the Indo-China border differences, which could be crucial in restoring peace between India and China.[42]

Conclusion

The uncertainty surrounding the border dispute has adversely affected the bilateral relations between India and China. The Indo-China border faceoff has spiraled into a precarious trade war which could have repercussions on the economies of both nations. [43] The situation calls for a thorough revamping of diplomatic channels to overcome differences and ensure the anti-status quo.

Therefore, the two Asian giants must strive to amicably resolve their territorial dispute to avoid hampering their decades-long ties and international repute. The emerging world order after the advent of COVID-19 outbreak may help China and India to settle the boundary stand-off.

Undeniably, the benefits that accrue of settled land borders between the two Asian powerhouses are obvious and of utmost importance. If ever there is a historic opportunity for the two Asian giants to resolve the contested boundary, it is now.


[1] Bagchi I, “Jaishankar to Meet China FM in Virtual RIC Meet on June 22” The Times of India (June 15, 2020) <https://timesofindia.indiatimes.com/india/jaishankar-to-meet-china-fm-in-virtual-ric-meet-on-june-22/articleshow/76377098.cms> accessed June 15, 2020

[2] Krishnan A, “ Line of Actual Control | India-China: the Line of Actual Contest ”The Hindu (June 13, 2020) <https://www.thehindu.com/news/international/line-of-actual-control-india-china-the-line-of-actual-contest/article31822311.ece> accessed June 15, 2020; Prabhakar Singh, “Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers” 3(2) Chinese Journal of Comparative Law

[3] Krishnan A, “Forgotten in Fog of War, the Last Firing on the India-China Border ”The Hindu (June 14, 2020) <https://www.thehindu.com/news/national/forgotten-in-fog-of-war-the-last-firing-on-the-india-china-border/article31827344.ece> accessed June 16, 2020.; Safi M and Davidson H, “ Soldiers Fell to Their Deaths as India and China’s Troops Fought with Rocks” The Guardian (June 17, 2020) <https://www.theguardian.com/world/2020/jun/17/shock-and-anger-in-india-after-worst-attack-on-china-border-in-decades> accessed June 17, 2020

[4] “Galwan Valley: India and China Downplay Reports of Soldier Release” BBC News (June 19, 2020) <https://www.bbc.com/news/world-asia-53102629> accessed June 16, 2020

[5] “China Suffered 43 Casualties in Violent Face-off in Galwan Valley, Reveal Indian Intercepts” Hindustan Times (June 17, 2020) <https://www.hindustantimes.com/india-news/china-suffered-43-casualties-in-violent-face-off-in-galwan-valley-reveal-indian-intercepts/story-7JhOt8tC6cfC9bx3CUzrTI.html> accessed June 17, 2020

[6] “Ladakhi Letter of Agreement (1842)” (Tibet Justice Center) <https://www.tibetjustice.org/materials/treaties/treaties3.html> accessed June 18, 2020

[7] Gupta K, “The McMahon Line 1911–45: The British Legacy” (1971) 47 The China Quarterly 521

[8] ‘The Five Principles’ (Ministry of foreign Affairs of the People’s Republic of China, 14 June 2014) < https://www.fmprc.gov.cn/mfa_eng/topics_665678/seminaronfiveprinciples_665898/t140589.shtml > accessed 27 June 2020

[9] “India-China War of 1962: How It Started and What Happened Later” India Today (November 21, 2016) &lt;https://www.indiatoday.in/education-today/gk-current-affairs/story/india-china-war-of-1962-839077-2016-11-21&gt; accessed June 19, 2020

[10] Gill P, “India Says There Are Five Treaties to Push the Chinese Army behind the Line of Actual Control⁠ — While Experts Tell Modi to Remain Cautious” Business Insider (May 29, 2020) &lt;https://www.businessinsider.in/defense/news/five-treaties-to-address-india-china-border-issue-experts-warn-modi-to-remain-cautious/articleshow/76085340.cms&gt; accessed June 19, 2020

[11] “Convention Between Great Britain, China, and Tibet, Simla (1914)” (Tibet Justice Center) &lt;http://www.tibetjustice.org/materials/treaties/treaties16.html&gt; accessed June 20, 2020

[12] Mehra P, “A Forgotten Chapter in the History of the Northeast Frontier: 1914–36” (1972) 31 The Journal of Asian Studies 299

[13] Ibid.

[14] Surya P Sharma, ‘The India-China Border Dispute: An Indian Perspective’ (1965) 59 Am J Int’l L 16

[15] Ibid.

[16] “100 Years after Simla Accord, Its Historical Impact Is Still Debated” (Canada Tibet Committee April 28, 2014) &lt;https://tibet.ca/en/library/wtn/12902&gt; accessed June 22, 2020

[17] (n 11).

[18] Ibid.

[19] (n 14).

[20] (n 11).

[21] Green LC, “Legal Aspects of the Sino-Indian Border Dispute” (1960) 3 The China Quarterly 42

[22] I C MacGibbon, “The Scope of Acquiescence in International Law” (1954) 31 Brit YB Int’l L 143

[23] (2003) ICJ 146.

[24] Jiangfeng Li, “Equal or Unequal: Seeking a New Paradigm for the Misused Theory of Unequal Treaties in Contemporary International Law” (2016) 38 Hous J Int’l L 465

[25] (n 14).

[26] (n 8).

[27] Stahnke AA, “The Place of International Law in Chinese Strategy and Tactics: The Case of the Sino-Indian Boundary Dispute” (1970) 30 The Journal of Asian Studies 95, https://www.jstor.org/stable/2942725?seq=1.

[28] Ibid.

[29] Prabhakar Singh, “Sino–Indian Attitudes to International Law: of Nations, States and Colonial Hangovers” 3(2) Chinese Journal of Comparative Law

[30] 1933 P.C.I.J. (ser. A/B) No. 53.

[31] Singh VK, “Resolving the Boundary Dispute” (India Seminar2006) &lt; http://www.india-seminar.com/2006/562/562-vk-singh.htm&gt; accessed July 1, 2020

[32] Krishnan A, “It Took China Just Three Weeks since PM Modi’s Visit to Snub His Efforts to Clarify the LAC. The Neighbours Now Face Yet Another Stalemate in Resolving the Boundary Issue.” India Today (June 11, 2015) &lt;https://www.indiatoday.in/magazine/the-big-story/story/20150622-china-india-lac-modi-visit-xi-jinping-border-dispute-819865-2015-06-11&gt; accessed July 1, 2020

[33] Bilder RB, “International Third Party Dispute Settlement” (2020) 17 Denver Journal of International Law &amp; Policy

[34] UN Charter, art 33(1).

[35] Simmons BA, “Territorial Disputes and Their Resolution The Case of Ecuador and Peru” [1999] United States Institute of Peace

[36] Ibid.

[37] “Chile, Argentina Sign Protocol on Beagle ”The Washingtom Post (October 19, 1984) &lt;https://www.washingtonpost.com/archive/politics/1984/10/19/chile-argentina-sign-protocol-on-beagle/f8e5a9db-f01c-4a5a-9691-f91861c095eb/&gt; accessed July 2, 2020

[38] Howe M, “Wary Algeria Edged Into Pivotal Role” The New York Times (January 26, 1981) &lt;https://www.nytimes.com/1981/01/26/world/wary-algeria-edged-into-pivotal-role.html&gt; accessed July 2, 2020

[39] “Russia as India-China Mediator: How Soviets, Mao’s China Split over India in 1950s-60s” The Week (June 23, 2020) &lt;https://www.theweek.in/news/india/2020/06/23/russia-as-india-china-mediator-how-soviet-mao-china-split-over-india-in-1950s-60.html&gt; accessed July 3, 2020

[40] Center M, “Joint Statement: Celebrating a Decade of the India- Russian Federation Strategic Partnership and Looking Ahead” (Ministry of External Affairs December 21, 2010) &lt; https://mea.gov.in/bilateral-documents.htm?dtl/5118/Joint+Statement+Celebrating+a+Decade+of+the+India+Russian+Federation+Strategic+Partnership+and+Looking+Ahead&gt; accessed July 2, 2020

[41] Wong K-H, “How Will the Coronavirus Outbreak Affect Russia-China Relations? ”The Diplomat (March 14, 2020) &lt;https://thediplomat.com/2020/03/how-will-the-coronavirus-outbreak-affect-russia-china-relations/&gt; accessed July 3, 2020

[42] (n 39).

[43] Misra U, “Explained: Why China Trade Ban Will Hurt India More” The Indian Express (June 22, 2020) &lt; https://indianexpress.com/article/explained/india-china-trade-ban-explained-6465949/&gt; accessed July 2, 2020

Reading Gaslighting Induced Sexual Acts as Rape – Capacity to Consent

By: VEDANTHA SAI

Vedantha Sai is a fifth year undergraduate student reading Law at The National University of Advanced Legal Studies (NUALS), Kochi, India. He possesses a keen interest in Public International Law, Human Rights, International Criminal Law and Constitutional Law.


Introduction

‘Gaslighting’ is defined as, “the action of manipulating someone by psychological means into accepting a false depiction of reality or doubting their own sanity.”[1] In gaslighting, the complexity of consent is magnified. It is necessary to ascertain whether the nature of the relationship between the survivor and the abuser vis-a-vis the survivor’ state of mind vitiates the otherwise prima-facie consent and result in rape? For instance, if one verbally consents under false pretenses in a gaslighting situation, is this true consent? The trouble arises when gaslighting is employed as a psychological maneuver to make (potential) sexual partners partake in sexual acts which they would not have consented to absent the gaslighting.

Gaslighting undermines individual autonomy, which inherently prevents the individual from giving consent. Any consent supposedly given is void ab initio. In relationships, wherein gaslighting leads to sexual acts or intercourse, such acts are non-consensual and amount to sexual assault or rape. Survivors of such gaslighting, therefore, should be entitled to full legal protections and remedies.

The dangerous consequence is that, at the time of engaging in these sexual acts, the survivors themselves, because they have been deceived by the perpetrator, believe that his/her consent is free and legitimate. However, it is only later that they realize that they have been gaslit and have suffered an attack on their autonomy and mistakenly ‘consented’ to certain sexual acts. Are those sexual acts, engaged in whilst being gaslit, consensual or coerced?

The otherwise de-facto consensual sexual act could be converted into a crime of sexual assault, upon the consent being deemed as coerced; hence, vitiated. This psychological maneuver of gaslighting, as employed by the victimizer, blurs the line of consent that resides in the grey area between consensual sexual intercourse and sexual assault.

Cause for Concern – Stakeholder Analysis

Gaslighting-induced sexual relations is highly worrisome for numerous reasons. First, perpetrators believe this to be a ‘workaround’ to evade any allegations of sexual assault by applying gaslighting techniques which would make sexual acts prima-facie appear as consensual. Second, Courts are also likely to be of the view that it was consensual and consent cannot be withdrawn retrospectively. Third, society at large would not view these acts as amounting to rape or sexual assault, as the traditional requirements for sexual assault as laid down by rape culture narrative, such as resistance and saying ‘no’ by the victim, and use of force by the perpetrator, are absent. Lastly and crucially, the key stakeholder in this disputation, the victim, who is placed at a similar level of torment and anguish as any other rape victim, is left remedy-less, despite having far worse mental trauma as in this case it was inflicted by someone who was in a position of trust, such as a romantic or sexual partner and further they would self-blame and self-loathe for having given ‘consent.’

 

Gaslighting an Attack on Autonomy – Vitiates Consent

The distinctive feature of gaslighting is that it always undermines a survivor’s self-trust in his/her epistemic capacities, such as perception, memory, and knowledge and constitutes an assault on the victim’s reality and undermines his/her autonomy. Gaslighting’s apparatus for effectuating the same, are diverse and plentiful and aimed at removing and/or obscuring the survivor’s opportunities for learning about his/her true reality.[2] Thus, any alleged consent that is received at this point of time wherein, the survivor was doubting his/her sanity and did not have a clear comprehension of reality, could certainly not be conceived as one which was unequivocal and voluntary. Therefore, it is argued that any consent provided by the survivor for gaslighting induced sexual acts, cannot be true-free consent and therefore, these acts are non-consensual and would amount to rape.

The question of post-factum revoking of consent does not arise; as per the theory of vices du consentement, defective consent is vitiated in initio.[3] Thus, it is to be understood, that ‘consent’ was never given in initio.

Recent jurisprudence requires such reading

Recently, various jurisdictions, including Australia and Canada, have criminalized Non-Consensual Condom Removal, otherwise colloquially known as stealthing and holding it to amount to rape.[4] To read gaslighting induced sexual acts as non-consensual is consistent with this growing jurisprudence which recognizes the utmost importance of the woman’s dignity, sexual autonomy and consent.

Conclusion

The abuse faced by such survivors cannot be discounted simply because the circumstances of that assault are unique in gaslighting cases. Gaslighting, by undermining autonomy, vitiates consent ab-initio. Thereby, any sexual relations which are resultant products of such emotionally perverse and conniving psychological maneuvers, must be held as sexual assault and the employers of the same ought to be held accountable and justly punished. Survivors of gaslighting deserve the legal protections afforded to other survivors of sexual assault.


[1] This article uses the colloquial term for gaslighting and does not advance it as a formal psychological diagnosis or concept. Gaslighting, Oxford English Dictionary, https://www.oed.com/viewdictionaryentry/Entry/255554.

[2] Natascha Rietdjik, (You Drive Me) Crazy: How Gaslighting Undermines Autonomy (Master’s Thesis), Utrecht University, (June 22, 2018), file:///Users/quentinl8/Downloads/RMA%20Thesis%20Natascha%20Rietdijk.pdf.

[3] George A. Bermann and Etienne Picard, Introduction to French Law, (2008), https://books.google.co.in/books?id=2ULv4NzlAFEC&pg=PA213&lpg=PA213&dq=vices+du+consentement++Introduction+to+French+Law&source=bl&ots=JRP2aaYbMn&sig=ACfU3U0W3NdON5glXtP4MLCCf6Gl3C9muA&hl=en&sa=X&ved=2ahUKEwjJ_tjpwNHnAhXLyDgGHbUbBG4Q6AEwAXoECAgQAQ#v=onepage&q=vices%20du%20consentement%20%20Introduction%20to%20French%20Law&f=false.

[4] Matthew Robinson, Police officer found guilty of condom ‘stealthing’ in landmark trial, CNN (December 10, 2018), https://edition.cnn.com/2018/12/20/health/stealthing-germany-sexual-assault-scli-intl/index.html; Alexander Lean, Drawing the Line: Deception and Sexual Consent, Journal of International and Public Affairs, https://www.jipasg.org/posts/2019/4/27/the-politics-of-controlling-labour-in-singapore-continuities-and-fissures-in-migrant-and-citizen-labour-governance; Brianna Chesser, Case in Victoria could set new legal precedent for stealthing, or condom removal during sex, The Conversation (August 16, 2019), https://theconversation.com/case-in-victoria-could-set-new-legal-precedent-for-stealthing-or-removing-condom-during-sex-118343; Alexandra Brodsky, “Rape-Adjacent”: Imagining Legal Responses To Nonconsensual Condom Removal, Columbia Journal of Gender and Law (2017), https://academiccommons.columbia.edu/doi/10.7916/D8708D06.

You Have (Surprising) Friends In Us: Towards An Apolitically Described Judiciary

By: JAMES JOSEPH BERNSTEIN


Justice Antonin Scalia was a judicial titan, championing philosophies such as originalism and textualism. The Justice defined these to mean that the words of the Constitution or statutes, respectively, are to be interpreted not in line with “what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”[1] In short, these philosophies seek to curtail the “looser”[2] interpretive tendencies of judges. Unsurprisingly, this understanding placed Scalia firmly in the reported “conservative” camp on the Court. Moreover, in this bold attempt to advocate for a form of judicial restraint, the late Justice gained many critics. Judge Richard Posner, a fellow Republican-appointee, called Scalia’s dissent in Obergefell v. Hodges “radical” and further said his judicial philosophy “verges on [that of a] majoritarian theocracy.”[3] In other instances, Posner further criticized Scalia’s broader originalist tendencies stating that the philosophy “denies the legitimacy of flexible interpretation designed to adapt the Constitution…to current conditions.”[4] Posner is not alone by any stretch of the imagination: legal scholars, fellow judges, and political commentators alike were quick to assail many of the Justice’s opinions. Broadly, the attacks on the Justice derive from his regular stymying of those in favor of the most socially progressive readings of the Constitution.

However, though much ink has been spilled to highlight Scalia’s conservative jurisprudence, much less has been written about his more progressive leanings – namely, defending the rights of the accused. To call Scalia’s stance on the issue anything less than staunchly in accordance with progressive ends would do a disservice to his opinions. Take, for example, the majority opinion in Kyllo v. United States: on the suspicion that the petitioner was growing marijuana in his attic, agents used “a thermal imaging device” to scan his home and compare the heat emission relative to its neighbors.[5] The evidence acquired during this initial, warrantless, operation ultimately led to Kyllo’s indictment.[6] The Scalia-authored opinion rejected this scheme as unconstitutional. In the decision, Justice Scalia determined that when “the government uses a device that is not in general public use” – such as a thermal imaging device – “to explore…a private home…the surveillance is a Fourth Amendment ‘search’ and is presumptively unreasonable without a warrant.”[7] Consider this view in light of the supposedly “inflexible” interpretative shortcomings of the philosophy that the Justice espoused: would an antiquated, unbending analytical framework fail to accommodate advanced technologies which violate an individual’s constitutional rights? Surely not.

Of course, Scalia’s liberal leanings were not limited to criminal rights. Rather famously, in Texas v. Johnson, Justice Scalia broke from his supposed conservative contemporaries and struck down Gregory Lee Johnson’s conviction for burning an American flag, a “venerated object.” This opinion, by Scalia’s own admission, ran counter to his own personal preference.[8] Nonetheless, the majority determined Johnson’s burning of the flag was “expressive conduct” and “overtly political [in] nature” given that it occurred at the Republican national convention.[9] In then-Chief Justice Rehnquist, writing for part of the minority, stated that “for more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning.”[10] Again, had Justice Scalia had his way – had he truly sought to institute a “radical” regime – or if his philosophy erred towards the most “inflexible” interpretation, one may have expected Justice Scalia to side with the Rehnquist authored opinion: the minority in this case, strangely sans Scalia, represents the one with a supposedly stronger reverence for tradition and two century plus understandings of the flag. Instead, though, we see a more “liberal” Scalia in full effect: overturning not only a criminal conviction but venerating criticism of the state.

Now, to be sure, I seek not to purely defend originalism – nor am I one to say that it is a framework that consistently leads individuals towards the most socially progressive outcomes. To the contrary, many of the criticisms directed at Justice Scalia and his originalist judicial progeny are more than warranted. Yet, to reject his stances as wholly conservative or that it is always unable to adapt in the face of changing circumstances overlooks where critics would, in fact, be in harmony with the Justice’s view (myself included).

In general, then, as fears of the Court growing seemingly more conservative increase, we need to pursue a more nuanced perspective of our understanding of the Court – one that emphasizes a broader understanding of the justices’ jurisprudence instead of placing them within the political spectrum reserved for their peers in Washington. In short, though a conservative-liberal binary may be an attractive route to aid in our anticipation of the Court’s outcomes, doing so fails to adequately capture the panoply of possible opinions that the justices regularly reach. Coincidentally, Justice Scalia’s successor, Neil Gorsuch, exemplified this seemingly apolitical judging with his opinion in Bostock v. Clayton County: the New York Times, doubtlessly surprised by this ostensibly bipartisan decision, praised the “conservative favorite” Justice for his majority opinion.[11] However, to this end, though conservative groups may laud Justice Gorsuch (or others of Justice Scalia’s newly appointed disciples), the judges themselves may perhaps be insulated from the inner workings of the capital – perhaps, it seems, they are not moral arbiters after all but, indeed, legal ones who ultimately operate independent of politics.


[1] See Nina Totenberg, Antonin Scalia, Known for Biting Dissents, Dies at 79, NPR (2016), https://www.npr.org/2016/02/13/140647230/justice-antonin-scalia-known-for-biting-dissents-dies-at-79

[2] See Richard Posner, In Defense of Looseness, NEW REPUBLIC (2008), https://newrepublic.com/article/62124/defense-looseness

[3] See Richard Posner and Eric J. Segall, Justice Scalia’s Majoritarian Theocracy, N.Y. TIMES (2015), https://www.nytimes.com/2015/12/03/opinion/justice-scalias-majoritarian-theocracy.html

[4] See supra note 2

[5] See Kyllo v. United States, 533 US 27 (2001)

[6] See id.

[7] See id.

[8] See Justice Scalia on the Record (ABC television broadcast Apr. 24, 2008)

[9] See Texas v. Johnson, 491 US 397 (1989)

 

[10] See id., (Rehnquist, CJ., dissenting)

[11] See Michael D. Shear, Gorsuch, Conservative Favorite Appointed by Trump, Leads Way on Landmark Decision, N.Y. Times (2020), https://www.nytimes.com/2020/06/15/us/politics/gorsuch-supreme-court-gay-transgender-rights.html

 

 

 

Understanding Bostock: A Response to Ryan Anderson

By: AYAN GUPTA


The United States Supreme Court, in Bostock v Clayton County,[1] held that the firing of an individual based on their sexual orientation, or on the basis that they are transgender, amounts to sex discrimination under Title VII of the 1964 Civil Rights Act.[2] In his analysis on SCOTUSBlog, Ryan Anderson, who filed an amicus brief for advocating for the employers in the case, has criticized the formulation of the Court.[3]

Anderson has argued that Justice Gorsuch has only supplied “half a theory of discrimination.”[4] Under his formulation, the test laid down by the judgement is that if by replacing the sex of the complainant, the result would have been different, it amounts to discrimination. This logic is undoubtedly an aspect of the Court’s judgement. However, it would be immature to summarize the logic of the Court in just this “simplistic” formulation. There is much more to the judgement. In this article, I will take the hypotheticals he offers and explain how they will amount to discrimination (unlike what he argues) under Bostock’s ratio. In this process, I will attempt to clarify the Court’s judgement.

Anderson argues that Bostock’s test of only changing the sex of the employee and asking would the situation would have been different is incomplete. He argues that the Court requires only a causation and an injury without ever linking the two.

However, that is not what the Court does. It correctly notes the fact that discrimination entails wrongful treatment arising out of differential treatment. The Court states that

To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated … So, taken together, an employer who intentionally treats a person worse because of sex . . . discriminates against that person in violation of Title VII [5]

In the oral arguments too, the requirement for an injury was a matter of concern. Pamela Karlan, representing the Plaintiffs, aptly points this out with an example.[6] She explains that she will be referred to as “Ms. Karlan” by the Chief Justice. The defendant advocate would instead be referred to as “Mr. Harris.” She explains that this act of sex-based differentiation does not amount to discrimination. The very essence of discrimination is the existence of an injury arising from the differential treatment. Therefore, by default, the use of the word “discrimination” implies the link.[7]

Thus, the test that the Court effectively lays down is that if by changing the sex of the employee, the treatment would be different, and if such different treatment would be disadvantageous, Title VII would be triggered.

In this context, it is imperative to analyze another hypothetical Anderson offers. He gives the examples of a male employee who regularly enters a women’s locker-room and is fired for the same.[8]  He says, rightly, that changing the sex of the employee would lead to a different result. Under his formulation of Bostock, this in and out of itself would lead to discrimination, aptly forgetting the requirement for an injury. Accordingly, he argues, the Court has effectively outlawed separate bathrooms as they amount to discrimination.

Now two things must be noted here. Firstly, the correct application of the test would require changing the sex of the employee in a “similarly situated” manner.[9] That would mean that the correct comparator here would be asking what the employer’s reaction would be if a woman were to enter the men’s washroom. In this case, it is reasonable to assume that the result would be the same. If it is not, then it would be discrimination. In any case, the firing of the employee, here, is not intentionally in order to discriminate. The termination is because he entered a restricted private space. There is an apparent lack of intention to discriminate based on sex.

In any case, his argument that the Court has effectively outlawed sex-specific places falls apart once we rope in the requirement of disadvantageous treatment, which the Court has done. There is no injury caused by differentiating bathrooms.

At the heart of Anderson’s misunderstanding, and Bostock’s ratio, is the difference between differentiation and discrimination. Both the acts involve treating individuals belonging to separate groups in a different manner. However, differentiation involves differential treatment based on reasonable differences, whereas discrimination involves an intention to cause a disadvantageous effect.[10] It is important to note that the “disadvantageous effect” is not a subjective standard, i.e., it does not depend completely on whether the plaintiff feels wronged on not. Rather, the Court sees it as a question of existence of a disparate impact.[11] Separate washrooms, for instance, have no disparate impact.

Anderson is right that discrimination based on sexual orientation indeed involves a fundamentally different kind of intention. The Court does not deny that. Instead, the very logic of the but-for causation is figuring out whether sex plays a role. Sex does inevitably play a role when it comes to sexual orientation. Discrimination based on sexual orientation involves accepting the sexual orientation of heterosexual persons of one sex and not of another, in each specific instance. Undoubtedly, sex is not the primary motivating factor in such discrimination. However, that is not what Title VII requires; it merely requires the existence of sex as a ground. Thus, when there is an intention to discriminate based on sexual orientation, it inevitably involves an intention to discriminate based on sex. Sex and sexual orientation are distinct; however, they are, nevertheless, inextricably connected.

Anderson, goes on, and says that when an employer refuses to hire both gays and lesbians (and both transmen and transwomen), there is no discrimination. Both sexes, of a particular characteristic, are being treated equally. Therefore, he says, the main intent is to discriminate based on orientation and not sex. Indeed, the link between homosexuality (and transsexuality) and sex does not change the reality that there is discrimination purely on the grounds of orientation existing here. However, at the same time, the linkage between the two means that sex plays a role too. A woman attracted to a man will not be fired in a similarly situated condition. A man attracted to a man would be.

When the focus of the analysis shifts to determining whether gays and lesbians are treated equally, two mistakes are made. First, the comparator is not similarly situated. A similarly situated comparator for a gay man would be a straight woman. The similarly situated aspect being that both persons are attracted to men. If one recalls the earlier discussion above around the washroom example, there also, a similarly situated comparator would have been a woman entering a male-only space. Similarly situated does not necessarily mean the same situation with the sex-reversed.

The second error here is that comparing the treatment of gays and lesbians is a group comparison. Title VII looks at an individual test. Thus, the comparator asks whether a woman dating a man would be fired too. The object in question here is an individual and not a group.

In conclusion, the essence of the Bostock involves using a comparator in a similarly situated manner in an instance where the differentiation causes a disadvantage (or a disparate impact). It is true, however, that the Court could have done a better job of expressing the niche difference between differentiation and discrimination. Nevertheless, Justice Gorsuch has done an incredible job in simplifying a deeply insightful analysis and Ryan Anderson misses the point of that insight.

[1] Bostock v Clayton County U.S. LEXIS 3252 (2020).

[2] 42 U.S.C. §§ 2000e to 2000e-15 (1970), as amended, 42 U.S.C. §§ 2000e to 2000e-17 (Supp. II, 1972)

[3] Ryan Anderson, Symposium: The simplistic logic of Justice Neil Gorsuch’s account of sex discrimination, SCOTUSBlog (June 16, 2020), https://www.scotusblog.com/2020/06/symposium-the-simplistic-logic-of-justice-neil-gorsuchs-account-of-sex-discrimination/ (last visited 19, 2020).

[4] Id.

[5] Supra note 1 at 11.

[6] Transcript of Oral Argument at 19, Bostock v Clayton County U.S. LEXIS 3252 (2020).

[7] Supra Bostock at 11; See also Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006).

[8] Anderson, supra note 3.

[9] Supra note 1 at 11.

[10] See also Aart Hendriks, Disabled Persons and Their Right to Equal Treatment: Allowing Differentiation while Ending Discrimination, 1(2) Health and Human Rights 152.

[11] Supra note 1 at 11; see also Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988).

Minnesota Voters Alliance v. Mansky: Upholding Grounds for Free Speech

By DUSTIN HARTUV


     Before 2018, Minnesota Statute § 211B.II prevented individuals from wearing politically affiliated symbols/clothing at polling booths on election days.[i] The statute was relatively broad, and so officials would distribute information to polling booth administrators to define specific articles of clothing that failed to uphold the rules outlined in the statute. If members of the public were caught disregarding the statute, the individual would still be allowed to vote, but could face misdemeanor prosecution.

         The Minnesota Voters Alliance (MVA) is a non-partisan organization that seeks to encourage voting by all members of the population. To challenge the statute, executive director Andrew Cilek wore a t-shirt with a logo representing the Tea Party, and was barred from voting in 2010.[ii] The MVA, along with Minnesota Majority, Minnesota Northstar Tea Party Patriots, and Election Integrity Watch, sued the Minnesota Secretary of State for violating the First Amendment.

         The case was first taken to a district court, and the MVA’s case was denied. On appeal, the Eighth Circuit upheld the district court’s determination, though it was nearly persuaded by some of the arguments before agreeing with the district court. In addition to the arguments of free speech, the MVA claimed that since the Tea Party was not a political party, the apparel did not count under the law. The Eighth Circuit claimed that while that was true, a reasonable interpretation of the statute would include the Tea Party even while it was not officially a political party in Minnesota.[iii]

         The MVA then took the case to the Supreme Court, arguing that Minnesota was imposing a “speech-free zone” at polling locations. The notion of a “speech-free zone” has its history in the Vietnam protests in the 1960s, when universities began to designate specific zones where protests would be allowed.[iv] Even though there have been constant debates about these zones, there has yet to be a broad ruling by the Supreme Court specifically on these zones. The Supreme Court has, however, decided on issues related to the matter.

         For example, in cases such as Police Department of Chicago v. Mosley, the Supreme Court used language involving time, place, and manner restrictions.[v] As the name suggests, the court determined that restrictions of public speech depend on the time, place, and manner of the speech. Another doctrine of the Supreme Court used in manners of public speech is the public forum doctrine, which was adopted from 1939’s Hague v. Committee for Industrial Organization.[vi] The public forum doctrine limits the ability of governments to restrain speech in areas that have historically been places of public congregation for debate. Along these lines, “speech-free zones” could be determined to be unconstitutional if one can prove that universities are historic areas of public debate.

         In the Supreme Court’s announcement of Minnesota Voters Alliance v. Mansky on June 14, 2019, the Court reversed the decision of the Eighth Circuit, stating that the statute violated the Free Speech Clause of the First Amendment.[vii] The opinion was written by Chief Justice John Roberts, and the Court argued that a polling place is not a public forum. However, based on the precedented time, place, and manner restrictions, while the statute was reasonable, it was too broad and did not properly define the term “political.”[viii] Therefore, although the decision was reversed, it set a precedent that polling places are not public forums, and that speech may be inhibited as long as the statute is not too broad and covers the time, place, and manner restrictions.


[i] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

[ii] Id.

[iii] Id.

[iv] David L. Hudson, Jr. and Andrew Gargano, Free-Speech Zones, Freedom Forum Institute (Nov. 8, 2017), https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/free-speech-zones/.

[v] Kevin Francis O’Neill, Time, Place and Manner Restrictions, The First Amendment Encyclopedia (last visited Nov. 18, 2019), https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.

[vi] David L. Hudson, Jr., Public Forum Doctrine, The First Amendment Encyclopedia (2017), https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine.

[vii] Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018).

[viii] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

Raising the Bar: Retaliation in the wake of University of Texas Southwestern Medical Center v. Nassar

whistlehurter (1)

Sharon Mo
Columnist

“[F]ear of retaliation is the leading reason why people stay silent about the discrimination they have encountered or observed.” – Justice Ginsburg in dissent[1]

Retaliation claims are now the bread and butter of employment discrimination actions. In 2014, retaliation claims brought under Title VII of the Civil Rights Act of 1964 accounted for 34.7% of all charges filed to the U.S. Equal Employment Opportunity Commission (EEOC).[2] Following a line of pro-employee decisions that afforded broad protections to plaintiffs,[3] the Supreme Court’s decision in University of Texas Southwest Medical Center v. Nassar [4] is a surprising development that has left employees scratching their heads and employers cheering. Plaintiffs are now required to prove that an employer’s adverse employment action would not have been taken “but for” an employee’s protected activity.[5] This move imports a strict tort law causation test into the market of employment discrimination, with problematic consequences. The following note aims to provide a brief summary of retaliation law, break down the Supreme Court’s decision and discuss its implications.

Title VII and The Law of Retaliation

Title VII defines an unlawful employment practice as discrimination against any individual because of their race, color, religion, sex, or national origin.[6] Within Title VII is an anti-retaliation provision that prohibits employers from engaging in adverse retaliatory action in response to an employee’s objection to a prohibited practice or participation in a Title VII investigation or proceeding.[7] To be awarded damages, the plaintiff bears the burden of proving the following elements: (1) the plaintiff engaged in or was engaging in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the plaintiff was subjected to the adverse employment action because of his or her participation in the protected activity.[8]

Shift from “Motivating Factor” to “But-For” Standard

Addressing the third element, the issue before the Supreme Court in, was the proper standard of causation for Title VII activity-based discrimination i.e. retaliation claims. A divided 5-4 bench determined in favour of the “but-for” threshold, over the lesser “motivating factor” standard applied to status-based discrimination claims.[9] The latter is less onerous on the employee for two reasons. First, while the “motivating factor” model would only require that retaliation be one motivating factor, amongst others, for an employer’s adverse action, the “but-for” test requires that it be the cause of the adverse action.[10] The second reason is that the “but-for” threshold rests the burden of persuasion entirely on the plaintiff, who often will not have the resources to investigate the employer’s deliberations.[11] In contrast, the “motivating factor” test places the initial burden on the plaintiff to prove that his or her protected activity was a motivating factor, before shifting the burden on the defendant to demonstrate that they would have taken the adverse action even in the absence of the protected activity.

The majority opinion, penned by Justice Kennedy, presented four arguments to justify the heightened standard.[12] The first was that retaliation is not identified in 42 U.S.C. §2000e-2(m) with other types of discrimination to which the “motivating factor” standard applies.[13] Secondly, the majority interpreted that “because” equated to “but-for” causation. In other words, if an action occurs “because of” another action, then that action is “the reason” for it.[14] The third argument aligned with policy concerns regarding the high volume of frivolous retaliation charges filed in the EEOC and the resultant resource inefficiencies, if the lesser standard was to be applied.[15] The majority’s final argument was that deference to generic EEOC guidelines favoring the “motivating-factor” test was not warranted.[16]

In a rather scathing opinion for the dissent, Justice Ginsburg favored the lesser standard. Specifically, she placed the meaning of “because” in the context of a multiple-motive decision, and countered that the omission of retaliation claims from 42 U.S.C. §2000e-2(m) did not automatically exclude employers from liability.[17] Justice Ginsburg denounced the majority’s divergence from both precedent and congressional intent to strengthen anti-discrimination laws in formulating Title VII.[18] In her closing remarks, she called out the majority for their unspoken motive and “zeal to reduce the number of retaliation claims filed against employers.”[19]

The Tortification of Retaliation

Perhaps the most significant layer to the Nassar decision is the majority’s importation of a tort law standard into the employment discrimination context. The tortification of employment discrimination law is not a new phenomenon,[20]with the transplant of vicarious liability to sexual harassment cases,[21] and the adoption of proximate cause to prove employer liability for subordinate bias.[22] Justice Kennedy is explicit in his treatment of Title VII retaliation claims as “textbook tort law”[23] and indeed, the Nassar opinion reads more like a tort decision than a case of statutory interpretation.[24]

However, imposing tort law’s strict “but-for” standard on retaliation claims is ill founded for two key reasons. The first reason is that in tort, the “but-for” test considers the cause and effect of physical forces to which reasonably common-sense and scientific theories of physical causation can be applied.[25] This is quite different to the mental investigation necessary in the context of employment discrimination to establish motive.[26] As Justice Ginsburg articulates, to apply the standard is to engage in a near-impossible “hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different”.[27] The inquiry also fails to expose false reasons provided by the employer or uncover hidden motives.[28] The second reason is that the “but-for” standard asks the plaintiff to prove that his or her protected activity was the sole cause for the employer’s adverse action. Even in tort, the plaintiff faces similar problems pinpointing one “but-for” cause amongst a multitude of variables. It is therefore misguided to think that at any time within the dynamic setting of workplace relations, employers take adverse action based on a solely identifiable reason. Even Congress at the enactment of Title VII commented that a “sole cause” standard would render the Act “totally nugatory”.[29] Justice Ginsburg cites Senator Case, a key sponsor of Title VII who stated that “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”[30] For all Justice Kennedy’s push for the tortification of retaliation, the employment discrimination context is, by its very nature, incongruous with the “but-for” model.

What now and where from here?

All this leaves a plaintiff bringing a Title IV retaliation claim in a tricky spot. Nassar’s “but-for” threshold asks employees to retrospectively speculate about employers’ motivations at the time of their adverse action, without the resources to do so.[31] Worse, it precludes remedies to employees who cannot prove that their protected activity was the reason for the adverse action, and protects employers whose actions were only partially motivated by retaliation.[32] The high bar contradicts the public policy behind Title VII to allow employees to engage in protected activity without fear of retaliation, and to deter employers against retaliatory action.[33] It would seem that Justice Ginsburg’s dissent was right to be as charged as it was.

Since Nassar, the Supreme Court has only further qualified that “but-for” means more than “contributing” and “substantial”, and exists where the retaliatory action is the “straw that broke the camel’s back”.[34] Thus, the best way forward is to, as Justice Ginsburg suggests, call on Congress to intervene and codify the “motivating factor” test through an amended Civil Rights Restoration Act.[35] Unlike tort law, employment discrimination and Title VII are creatures of statute, and best amended by statute. To recognize the distinction between tort and employment discrimination is to recognize that the “but-for” standard is ultimately unworkable in the workplace.

Notes

[1] University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534-35 (2013) (Ginsburg, J. dissenting).

[2] EEOC, Charge Statistics FY 1997 Through FY 2014, EEOC (2014), http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm

[3] See Burlington & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) and Thompson v. North American Stainless, LP 131 S. Ct. 863 (2011).

[4]  Nassar, 133 S. Ct. at 2517.

[5] Id. at 2533.

[6] 42 U.S.C. § 2000e-2(a).

[7] 42 U.S.C. § 2000e-3(a).

[8] United States Courts for the Ninth Circuit, Manual of Model Civil Jury Instructions – 10.3 Civil Rights—Title VII—Retaliation—Elements and Burden of Proof, United States Courts for the Ninth Circuit (2013), http://www3.ce9.uscourts.gov/jury-instructions/node/173.

[9] 42 U.S.C. § 2000e-2(a).

[10] Nassar, 133 S. Ct. at 2526.

[11] Gross v. FBL Financial Services Inc., 557 U.S. 167, 177-78 (2009)

[12] Garth E. Flygare, Title VII Retaliation Claims: But-For Causation Gets Back At Price Waterhouse In The Wake Of University Of Texas Southwest Medical Center v. Nassar, 39 S. Ill. U. L.J. 557, 563-564 (2015).

[13]Nassar, 133 S. Ct at 2526.

[14] Id. at 2527; Garth E. Flygare, Title VII Retaliation Claims: But-For Causation Gets Back At Price Waterhouse In The Wake Of University Of Texas Southwest Medical Center v. Nassar, 39 S. Ill. U. L.J. 557, 564 (2015).

[15] Nassar, 133 S. Ct. at 2531.

[16] Id. at 2533.

[17] Id. at 2546; Price Waterhouse v. Hopkins, 490 U.S. 228, 281-82 (1989).

[18] Darren Stakey, The Supreme Court’s Heightened Retaliation Standard In Nassar: A Prudent Limitation Or A Misguided Restriction To Title VII Claims? 30 TOURO L. REV. 923, 941 (2014).

[19] Nassar, 133 S. Ct. at 2547.

[20] Deborah L. Brake, Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation 75 OHIO ST. L.J. 1375, 1381 (2014).

[21]See Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998)

[22] See Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)

[23] Nassar, 133 S. Ct. at 2525.

[24] Deborah L. Brake, Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation 75 OHIO ST. L.J. 1375, 1381 (2014).

[25] Gross v. FBL Financial Services Inc., 557 U.S. 167, 190 (2009) (Breyer, J., dissenting). 

[26] Id.

[27] Nassar, 133 S. Ct. at 2546.

[28] Matthew A. Krimski, University Of Texas Southwestern Medical Center v. Nassar: Undermining The National Policy Against Discrimination, 73 MD. L. REV. 132, 144 (2014).

[29] 110 Cong. Rec. 2728, 13837–13838 (statement of Sen. Case).

[30] Id.

[31] Matthew A. Krimski, University Of Texas Southwestern Medical Center v. Nassar: Undermining The National Policy Against Discrimination, 73 MD. L. REV. 132, 148 (2014).

[32] Id. at 147.

[33] Kimberly A. Pathman, Protecting Title VII’s Antiretaliation Provision In The Wake Of University Of Texas Southwestern Medical Center v. Nassar, 109 NW. U. L. REV. 475, 479 (2015).

[34] Timothy M. Holly, The Causation Standard For Retaliation Claims Under Employment Discrimination Statutes: Ambiguity Of “Central Importance, 15 DEL. L. REV. 71, 75 (2014) citing Burrage v. United States, No. 12-7515, 2014 WL 273243 (U.S. Jan. 27, 2014).

[35] Nassar, 133 S. Ct. at 2547.

Why is it always the wrong time to talk about gun control?

Sydney Winkler
COL ’16

When ten people were killed and nine others were injured in a shooting at Umpqua Community College in southwestern Oregon this past Thursday, people criticized the President for making the issue “political.”  But there is no time to spare when it comes to saving lives from the next mass shooting.

Sadly, many predict that once again, nothing will be done.  Some have grown pessimistic of meaningful change in gun control.  Others have grown more protective of their right to bear arms.  Both sides refuse to meet in the middle and gridlock occurs.  So what is the result of our inaction?

Experts across the board believe that the consequence of America’s soft policy approach to guns is making more guns more accessible, which means more gun deaths.  Research has found that this is true for many types of gun violence: gun homicides, suicides, domestic violence, and even violence against police.

Looking at mass shootings in particular, like the one that occurred at UCC, there have been at least 986 mass shootings since Newtown in December 2012.  Mass Shooting Tracker, a crowd-sourced database, defines a mass shooting as “shootings in which four or more people were shot at all, not necessary murdered.”  This broader definition is essential to truly capture the threat of mass gun violence.

Some people argue that in order to respect those who have been affected by this tragedy we should not talk about gun control in light of the recent tragedy at UCC.  But if we always left time after a tragedy before bringing up a possible political solution, it would also lead to a conversation that never occurs.  According to Vox, “Under the Mass Shooting Tracker’s definition of mass shootings, America has nearly one mass shooting a day.  So if lawmakers are forced to wait for a time when there isn’t a mass shooting to talk gun control, they could find themselves waiting for a very long time.”[1]

Let me also just lay down some facts that people might find shocking… States with more guns have more gun deaths [shocker]. States with tighter gun control laws have fewer gun deaths [shocker].

But the second that I say “gun control,” half of you will stop reading this article.  It has become a buzz-phrase used by the left that causes the right to tune them out.

But what if I framed it in terms of how you obtain your driver’s license?  You go to the DMV, show proof of ID by presenting them with your Social Security number, date of birth, and residency.  Then you must pass a vision exam, written exam, and driving test.  Furthermore, drivers with vision, physical, or mental health issues must complete (along with their medical professionals) a Medical Report (Form DSD DC-163).  Oh, and you have to pay a fee too.

So what do I have to do to get a gun?  Nothing.

Federal law does not require any sort of licensing to own a gun. In most states, a license is not required to own a gun but is required to carry a gun on your person.

Some people will ask if permits will have any effect on gun homicides.  They argue that they are a hassle for law-abiding citizens and that criminals will still get their hands on guns.

Well, let’s look at a case in point: In the summer of 1994 in Connecticut, lawmakers passed a gun control bill in a special session after numerous gang shootings.  The bill requires a purchasing license before a person can buy a handgun. The state would issue these permits to people who passed a background check and a gun safety-training course.  Permit-to-purchase laws make it a crime for anyone to sell or give a gun to someone without a permit.

So what happened? Two decades later, researchers at Johns Hopkins University and the University of California Berkeley say that Connecticut’s law was actually a huge success for public safety.  They estimate that the law reduced gun homicides by 40 percent between 1996 and 2005. That’s an estimated 296 lives saved in 10 years.[2]

Permit-to-purchase laws make it harder for guns to enter the black market, too.  As Connecticut exemplifies, lower supply means higher prices.  If someone wants to get their hands on a gun through the black market, they will have to overcome a higher barrier to entry and invest more time and resources.

The process of acquiring a permit to purchase a gun is not to eliminate guns.  We don’t need to eliminate them; we need to make the process of owning them safer.  We require licenses to drive and we require seatbelts in cars.  Is it so different to require licenses to own a gun?  This is a public health issue and we should treat it like one.

It’s not clear that these steps would have prevented the Oregon shooting. But smarter gun policies could reduce murder rates by up to 50 percent, according to Dr. Daniel Webster, director of the Johns Hopkins Center For Gun Policy.

The difficult part is, while a couple states have permit-to-purchase laws, not all of them do.  And there is even a lack of credibility of permits between states.  For example, if you take your Idaho gun permit into Oregon, they won’t recognize it but Idaho will recognize an Oregon gun permit.   This type of system is disjointed and provides too many loopholes for individuals.  If an individual’s state doesn’t allow a purchase without a permit, they could just hop over to a neighboring state with more lax laws.

We need federal action.  We need Congress to act.

But we cannot only blame politicians for inaction.  It is our voices that grow silent mere weeks after a mass shooting.  If constituencies are not in favor of more gun control, then elected officials are stuck in a hard place.

After Newtown in December 2012, Pew Research Center found that “the public’s attitudes toward gun control have shown only modest change in the wake of last week’s deadly shooting at an elementary school in Newtown, Connecticut. 49% say it is more important to control gun ownership, while 42% say it is more important to protect the right of Americans to own guns.”[3]

Seriously?!  Were you silent after 9/11?  Did you say that it isn’t the right time to talk about homeland security or the threat of terrorism?

It may seem easier to just grow numb to the issue, to make it easier to deal with when the next mass shooting occurs.  But what if we could prevent that next time and the time after that?  Will you wait until the mass shooting affects your friend?  Your brother?  Your sister?  Your child?  How would you act then?

[1] http://www.vox.com/2015/8/24/9183525/gun-violence-statistics

[2] http://www.washingtonpost.com/blogs/govbeat/wp/2015/06/12/gun-killings-fell-by-40-percent-after-connecticut-passed-this-law/

[3] http://www.people-press.org/2012/12/20/after-newtown-modest-change-in-opinion-about-gun-control/