Articles

Feminist Reflections on Labour: The 'Ethics of Care' Within Maternity Laws in India

-Ira Chadha-Sridhar and Geetika Myer

The Maternity Benefit (Amendment) Act, 2017 has recently been passed by the Parliament of India. While this Act is a progressive step for women, there is a need to question the theoretical foundations of the law, rather than merely its consequential ramifications. Through this paper, we attempt to critique the individual rights-justice model that is integral to conceptualising maternity laws and labour laws in India. We employ a critical feminist lens to argue that such a model reproduces the public-private dichotomy and devalues the work of care within the private sphere- suggesting that it is not “transformative” labour, but “merely reproductive”. We draw from the feminist philosophy of care to argue that child-rearing must be recognised by the State as a form of labour in itself. Further, we root these theoretical suggestions in the contemporary Indian context by providing certain tangible suggestions in terms of legislative and judicial changes that would further the responsibility-care approach to the issue of maternity in the Indian legal framework. Through this paper, we argue for broadening the scope of “labour” to include the work of care-thereby creating a space for care, relationships and connectedness within the law.

 Scheduled Castes vs. Caste Hindus: About A Colonial Distinction and its Legal Impact

India’s legal system gives a decisive role to membership of a specific set of caste groups. Groups included in the schedule attached to the Constitution (Scheduled Castes) Order of 1950 are the beneficiaries of special protections and provisions. This legislation appears to discriminate on grounds of caste. However, the Supreme Court permits such special treatment under the condition that the classification is reasonable: for one, it must be founded on intelligible differentiae which distinguish the persons grouped together from others left out of the group. Which intelligible differentiae then distinguish the groups that belong to the Scheduled Castes? This essay argues that this question was never answered in any satisfactory manner. The Constituent Assembly simply accepted the colonial division of the Indian population into ‘Caste Hindus’ and ‘Depressed Classes’. Yet, the colonial administration had also failed to find empirical tests that allowed it to identify the ‘Depressed Classes’ as a distinct set of castes. The notion of ‘untouchability’ did not help here, because it functioned as a label used to name a collection of practices. It was unclear how to identify the victims at the receiving end of ‘untouchability’, since these practices could be found both among groups classified as Depressed Classes and among those considered Caste Hindus. The conclusion is puzzling: in 1936, the British Monarch ordered how the people of India should be divided into Scheduled Castes and others. Since 1947, Indian political and intellectual elites have enforced this decree in their country through caste legislation

Statistics suggest that a disproportionate number of all living organ donors in the world are women. Similarly, sociological accounts of the black market for human organs indicate that many more women sell their organs for money than men. An analysis of both these trends demonstrates that the reasons which persuade women to give away their bodily organs are similar, regardless of whether their organs are sold or donated. Indian law, however, categorizes these similar experiences into two distinct categories. In this respect, the law appears to be going against the natural grain of society. In this paper, I use a systems theory perspective to analyse this apparent incompatibility between law and society. I argue that the legal system communicates in a code that is not perfectly translatable to social codes; and highlight this as a possible reason for the law’s failure to prevent commercial trade in human organs. Considering this, I argue in favour of legal interventions to correct the commodification of the female body in the larger social sphere, and for a need to reorient the Indian regulatory approach towards living organ transplantation.

This paper outlines the central role of risk management in the regulatory toolkit administering Indian environmental law. In particular, it examines the operationalization of risk management in the functioning of Water Act through the management of pollution standards, especially the extent to which standards management has informed adjudication by the higher judiciary and the National Green Tribunal. This examination of adjudication the cases is typed into cases that strictly deal with standards management, cases that deal with procedural objections to regulatory interventions to manage standards and public interest litigation cases. Though the overall number of cases are small, strict standards management cases constitute about a third of the overall number of cases arising out of the standards management provisions of the statute. Drawing on this distribution of cases the paper comments on the nature and limits of standards management as the framework of managing risk in the Water Act. Accordingly, this paper is also an introductory comment on the kind of enquiry that will make salient the framework of risk management that organizes the regulatory framework of the Water Act in particular and Indian environment law in general.

-Mathew John

Contents of Volume 13(1)

2017

-Jinal Dadiya

-Jakob De Roover