Alekhya

Human Rights vs Contract Law in Arbitration Mechanisms

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Concerns in International Arbitration

It may be useful to start with a brief discussion of the general concerns raised about international arbitration. One question that has constantly come up is the relation between arbitration and the judiciary. Arbitration is meant to be a non-judicial (but legally supported) means of dispute resolution that would  save time and costs involved in judicial recourse and  deal with concerns about bias (against foreign parties), in cases where the parties to the dispute are of different nationalities.

  • This purpose would not be served if arbitration awards were constantly being challenged by courts. At the same time, completely foreclosing the option of recourse to the judiciary may neither be desirable nor even possible/enforceable.
  • Most methods of international arbitration today (with the exception of those under the International Centre for Settlement of Investment Disputes and the Dispute Settlement Understanding under the World Trade Organization [WTO]) usually involve—in addition to the specific arbitration rules chosen—rules of procedure of the legal system of the place of arbitration (including the possibility of recourse to the judiciary, if one of the parties wants it).
  • In the Indian case, this tension in the relation between arbitration and the judiciary is reflected, for instance, in recent moves to curtail judicial involvement in arbitration proceedings (in a bid to create a more investment-friendly atmosphere for foreign investors) which stand in contradiction to other moves geared towards protecting the ­interests of Indian parties and the Indian state.
  • The newly set-up tribunal, MCIA, also attempts to deal with this question through its feature of the “sanity check” that aims to ensure that its awards are scrutinised so that they are less likely to be challenged by Indian courts.
  • Another concern that has been raised about international arbitration is about the bias in awards in favour of Western countries, which is part of the rationale of setting up new international tribunals (such as the MCIA in India).
  • However, it is not always clear whether the bias is in the interpretation of the contract and the laws/rules to which it is subject (which seems to be what investors typically talk about) or whether the content of the contract itself is already biased because of unequal bargaining positions of the parties in question (a point that is often raised by those critical of international trade and investment agreements).
  • Further, in the case of the latter, whether and under what circumstances biased contract clauses can be overturned or even raised in the course of an arbitration process, is debatable.
  • One possible exception could be when human rights or public purpose considerations are invoked, a point that relates to a third and more fundamental question that one can raise about international arbitration, which is about the relationship between international arbitration law and other kinds of law.

Relationship between Different Kinds of Law

  • At the onset, it is pertinent to note that arbitration rules, practices, and awards are seen as constituting a distinct form of law, although the current diversity (and sometimes inconsistencies) in this have led to some calls for a more uniform and consistent body of arbitration law (see, for instance, Franck 2005).
  • The question then is whether other kinds of laws, particularly those dealing with human rights or public purpose, should be considered when interpreting and implementing arbitration law. A number of arguments have been made in support of such a position.
  • Thus, Tamar Meshel (2015) argues against the separation of different kinds of laws by drawing on readings of Article 31(3)(c) of the Vienna Convention on the Law of Treaties that talks about the systemic relationship between all kinds of international law.
  • More specifically, he argues that international law is applicable in deciding international investment arbitration disputes even when a particular domestic law or specific arbitration rules have been chosen by the disputing parties, and this would allow for the consideration of human rights too.
  • Further, certain kinds of laws, such as human rights (be it the right to water or other kinds of socio-economic rights) make sense only when integrated across different realms.
  • Yet the usual experience of investment tribunals has been that the adverse effects of trade and investment treaties on human rights have not been acknowledged and instead, it is the text of the contract laid down in the treaties that has been emphasised and upheld.
  • For instance, Meshel (2015) considers the case of the human right to water raised in water-related investments, most of which to date have been in the context of Latin American countries.
  • Meshel points out that while there is some selective recognition of civil and political rights when invoked by investors, in general when the human right to water has been raised as a justification for actions of host nations, international arbitration tribunals have either not acknowledged it at all or acknowledged it without recognising the right in the resolution of the dispute itself or discussing its impact in any meaningful way.
  • In other words, contract law and human rights have been treated as two separate areas of international law.
  • How does one make sense of this separation of different kinds of law and of the privileging of some kinds of law over others? I would like to bring together here two arguments made in very different contexts—Polanyi’s (1944/1957) characterisation of market societies in terms of a disembedded economy and D’Souza’s (2006) discussion of the differences in the character of law under state regulation and market regulation.
  • In his work The Great Transformation, Polanyi talks about how market societies are characterised by attempts to disembed the economy from society, a process that would also require the demarcation of an autonomous domain called the “economy.”
  • It is perhaps most useful to see these attempts as continuous and never entirely successful (à la Block 2003), and therefore a completely disembedded economy and a purely market society as something always in the making. But assuming for analytical purposes that one can think of a (disembedded) economy, such an economy would require a distinct set of laws for its existence and functioning.
  • The growth of contract law and the increased importance accorded to it (whether via distinct institutional mechanisms for its enforcement or its privileging vis-à-vis human rights) needs to be understood in this context.
  • The contract form and contract laws are neither new nor restricted to the economic domain; the idea of individuals or entities entering into a relationship on the basis of (what is attributed to be) their own free will and choice, and the need to lay down and enforce the terms of such a relationship, has been a critical function of many older states too.
  • But the increase in international commerce and investment, particularly in the wake of liberalisation and globalisation processes in the latter half of the 20th century, has led to a large variety of contracts—including between nations—and consequently to an increase in the number and complexity of disputes.
  • Examples of the new kinds of contracts include trade agreements under the WTO, regional trade agreements like the North American Free Trade Agreement and bilateral investment treaties (or BITs).
  • More importantly, the kinds of economic processes and contracts that constitute an important part of the current form of the economy require law to take on particular characteristics, something that D’Souza (2006) refers to as “market regulation.”
  • For the purpose of our discussion, what is crucial about market regulation is the emergence of a whole new set of institutions, legal innovations, and discourses of legitimation that operate on (or privilege) private law principles and of a society wherein “… the contract form of social relations [is taken] to new heights by restructuring the relations between corporations, states and social groups, qua collective/corporate entities as contracting parties” (D’Souza 2006: 16; emphasis in original).
  • The increased emphasis on arbitration as a means of resolving disputes arising out of the new kinds of international trade and investment contracts as also the strict enforcement of contract law in arbitration processes can be seen as examples of this.
  • The dominance of contract law and of particular kinds of legal institutions/instruments is in keeping with the goals of a market society, but the fact remains that other kinds of laws (related to questions of public interest and human rights) and institutional mechanisms supporting these are also simultaneously present. How, then, are the two kept separate?

Human Rights and BITs

  • It is useful to consider the case of BITs in India, which is one of the kinds of contracts in which recourse to arbitration is increasingly taking place. India signed its first BIT with United Kingdom in 1994 and has signed 80-odd BITs since then.
  • But as Prabash Ranjan (2014) points out, until about 2010, there was pretty much no discussion in most BITs of the relationship between investment flows and non-investment issues, including the host country’s regulatory power about the environment, decisions about privatisation, and so on.
  • In general, although there has been a fair amount of debate on the implications of the WTO for different sectors and concerns related to livelihoods and democratic processes, similar work in the context of trade/investment treaties outside the WTO (be it BITs or other trade agreements) is far more limited (Bhutani 2015). The actual provisions within these treaties to take account of concerns about public purpose or human rights also leave a lot to be desired.
  • Thus, while BITs often contain a general exception clause that allow countries
  • to temporarily deviate from their BIT obligations in situations that warrant giving precedence to non-investment objectives over investment protection … in more than 60 Indian BITs these exceptions are very narrowly formulated … to allow deviations from the treaty only in situations of “essential security interest” or in “circumstances of extreme emergency.” (Ranjan 2014: 435)
  • It is only after 2010 when foreign investors started suing India under different BITs and adverse awards against the Indian government were pronounced in a number of arbitration cases that there has been some attention focused on the inequities associated with BITs.
  • Even then, the concern has been more about the bias in favour of Western countries and less about human rights per se. While there have been changes made recently that explicitly bring in consideration of laws relating to human rights and public interest, the manner in which they are likely to interact with contract law still does not allow much room for optimism.
  • Consider, for instance, the new model BITs treaty adopted in December 2015 which is supposed to be used for renegotiation of existing BITs as well as for negotiation of future BITs and investment chapters in trade agreements or agreements about economic cooperation and partnership.
  • While initial draft versions of this talked about compliance of investors and their investments with the law of the host state, including laws relating to human rights (Dahlquist and Peterson 2016), the version finally adopted only mentions this in a softer form under a corporate social responsibility clause, wherein investors are supposed toendeavour to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle … that may address issues such as labour, the environment, human rights, community relations and anti-corruption.(Article 12 of the Government of India’s Model Text for the Indian Bilateral Investment Treaty)
  • There are, of course, other avenues to bring in considerations of public policy or human rights. In the context of arbitration, for instance, states which are signatories to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) usually have legislation under which recognition or enforcement of a foreign arbitral award (with the exception of those under the International Centre for Settlement of Investment Disputes) can be prevented on the grounds that the award is contrary to the state’s own public policy.
  • In the Indian case, while the Arbitration and Conciliation Act, 1996 had clauses that allowed applications to be made to the judiciary to set aside an arbitral award and also for courts to refuse to enforce a foreign award when an award is in conflict with the public policy of India (Sections 34 and 48 respectively), this was defined only in terms of fraud or corruption in the making of the award, violation of confidentiality, and restrictions on the admissibility of evidence in other proceedings.
  • However, a recent amendment to the arbitration law—the Arbitration and Conciliation (Amendment) Act, 2015—added two new conditions to define when an award is in conflict with the public policy of India, namely if “it is in contravention with the fundamental policy of Indian law” or “is in conflict with the most basic notions of morality or justice” (Sections 18 and 22).
  • While this amendment seems to provide space to bring together the enforcement of contract laws and laws related to social justice (such as human rights related legislation), the problem is that there is no clarity about what “basic notions of morality or justice” means or the manner in which these would translate into specific domains (whether in terms of legislative and policy frameworks or in terms of actual implementation).

Reconciling Underlying Values

  • Consider, once again, the case of right to water in India. Although there is strong judicial support for the right to water (with the right to water being read as part of the right to life, a fundamental right under Article 21 of the Indian Constitution), an explicit adoption of a legal right to water along with corresponding rules and policies (as in the South African case) is missing.
  • More importantly, there is no clear discussion of what such a right would imply for different dimensions of a right to water, such as the quantity and quality of water to be supplied, system of water delivery, pricing, long-term sustainability of the resource, and so on.
  • This, in turn, would make it difficult to ensure that trade or investment agreements involving or affecting water or arbitration awards made in case of disputes under these, would be compatible with a right to water.
  • Whether national governments even want to ensure such compatibility or have the bargaining power to do so (particularly in negotiations with other countries) is a separate question.
  • However, even if the desire and power to integrate different kinds of laws were present, there is a concern that remains about attempts to do so, which is perhaps the most crucial point in explaining the continuing separation between contract law and human rights.
  • This is related to the differences in values underlying laws. For instance, Hugh Collins (2012) expresses scepticism about whether human rights can just be transplanted to the domain of contract law given that there are fundamental differences in values between public law and private law (of which human rights and contract law can be considered examples respectively).
  • This is a point that is also linked to the earlier discussion about (the construction of) a disembedded economy requiring a particular form of law. Polanyi argues that in pre-market societies, similar principles underlie social relationships and economic activities; also, these principles do not lead to the creation of institutions which are meant exclusively for one purpose.
  • Further, moving away from such a society is not a linear or automatic process. That is, there is work involved in creating new kinds of institutions and in transforming values and principles (be they in the domain of law or others).
  • However, Polanyi’s argument does not stop here. He also talks about continuous resistance to the movement to a market society and introduces the idea of a “double movement,” which, as Kari Polanyi Levitt (2005: 172) argues, signals… an existential contradiction between the requirements of a capitalist market economy for unlimited expansion, and the requirements of people to live in mutually supportive relations in society.
  • The tension between contract law and human rights—the need to integrate these laws versus actual attempts to separate them and the potential difficulty in reconciling the differences in values underlying them—can hence be seen as reflecting the tension between attempts to move towards a different kind of society and resistance to this movement.
  • At stake here is also the question of the role of law and the extent to which changes in legal institutions and instruments can be a means of bringing about change in society, as against merely being a reflection of it.
  • Thus, when there is optimism expressed (in Meshel 2015, for instance) about the possibility that investment arbitration tribunals can strengthen and re-enforce human rights norms that may be negatively affected by trade and investment treaties, even when institutions more directly responsible for enforcing such rights have often not done so, what is being hoped is that arbitration institutions and instruments would take on functions beyond the mandate with which they were originally set up.
  • If this contributes towards common values in law across different domains, the separation and importance accorded to a particular form of economy can potentially be questioned.
  • Whatever one’s opinion about realising this potential, there is little doubt about the need for such a change in various domains, including arbitration. A lot of arbitration today is centred on trade agreements and investment treaties pertaining to crucial resources like oil, gas, energy, and water as well as services that are increasingly essential, such as telecommunications.
  • Hence, it is undeniably important that disputes that arise in this context be resolved by drawing on a wide range of considerations (including, but not limited to, human rights).

Notes

  •  These include both court judgments and legislative tools. For instance, in December 2014, the Supreme Court refused to interfere in an international arbitration matter and directed the parties to the arbitration tribunal.
  • Similarly, in 2015, the government amended The Arbitration and Conciliation Act, 1996 to encourage arbitration, enable speedy disposal of proceedings, and prevent parties from approaching the court to stall the proceedings (in cases where arbitration is held in India).
  •  For instance, India’s Model Bilateral Investment Treaty of 2015 requires (with some qualifications) that investors exhaust “local remedies” (that is, the Indian judicial system) before initiating arbitration.
  •  Collins (2012) talks about how in the case of public law, protecting the weaker party is important, while in the case of private law, all parties are considered to be equal; another difference is the greater focus on values of negative liberty in public law and on more positive conceptions of liberty in private law.

Stigmatisation and Exclusion of Tribal ‘Kumari Matas’ in Yavatmal

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The fear of stigma amongst victims and their families and defamation of the community/village is overarching. Moralising overtones are also reflected in the language of the state, particularly the bureaucracy, while dealing with these cases. Beyond stigma, these sexually exploited women are further subjected to ostracisation and exclusion.

Nature and Extent of the Phenomenon

  • The issue of Kumari Matas amongst the scheduled tribes of Yavatmal first surfaced in public fora when local newspapers reported the incidence in significant numbers in the tribal belt of Jhari Jamni block (as told to the author by a local official).
  • The Vidarbha Jan Andolan Samiti in 2009 reported over 300 cases of Kumari Matas in Yavatmal, of which 52 cases were from Jhari Jamni block alone. The issue was later taken up in public hearings conducted by the state human rights commission in 2009 (Maitra 2009).
  • However, the Government of Maharashtra initiated action only in December 2013 following the visit of Nirmala Sawant, a member of the National Commission for Women (NCW) to Jhari Jamni.
  • Sawant requested the state government to conduct an enquiry into four blocks of Yavatmal, namely Jhari Jamni, Wani, Maregaon and Pandharkawada, to facilitate the identification and authentication of casestowards rehabilitation.
  • Further, media reports and mobilisation at the local level by non-governmental organisations (NGOs) pressurised the state government to take immediate action in this regard. At the forefront of initiating action were the state agencies of the additional tribal development commissionerate at Amravati, Integrated Tribal Development Project (ITDP) office at Pandharkawada, district collector of Yavatmal, and the police, women and child development, and health departments at Yavatmal.
  • The police started an enquiry based on a news report in the Marathi daily Loksatta in March 2014 (Kamble 2014).1 The additional commissioner of police, Maharashtra ordered the superintendent of police, Yavatmal to investigate and identify causes and measures to be taken against such crimes and submit a report to the chief minister.
  • Soon after, the women and child development officer at Yavatmal reported that there were 87 cases of Kumari Matas—39 in Jhari Jamni, 33 in Pandharkawada, nine in Maregaon and six in Wani blocks.2 The report stated that 39 out of the 87 were married.
  • Later in April 2015, the Women and Child Development Department, Yavatmal found 119 cases of Kumari Matas in the district. These were primarily from Jhari Jamni (47) and Pandharkawada (41) while a few cases were from other blocks. As per the latest list providing figures until December 2015, the reported figure of Kumari Matas is 157 in Yavatmal
  • The Women and Child Development Officer (WCDO), Yavatmal identifies two tribes, Kolams and Gonds, among whom the incidence of Kumari Matas is most prominent. Of the total 157 cases, 77 are amongst Kolam, 46 among Gonds, seven among Bhois, six among Pardhans, three each among Gowaris, Banjaras, Andhs, and Mahar/Matangs, two each among Madgis and Kunbis and one each being Muslim, Mali, Baudhha, Dhangar, and Dhobi communities. For a classification of Kumari Matas as per age group and educational status
  • The WCDO Yavatmal further reports that of the total 157 women, 151 (96%) were landless. Of the 157 cases, 82 were below the poverty line, 68 did not have ration cards, five were above the poverty line, and two had Antyodaya cards (WCDO 2015: 6–7). Thus, poverty was common amongst more than 95% of the cases.
  • There is a huge gap between the number of cases claimed by newspaper reports, NGOs, the women’s commission, and actual authenticated cases by the women and child welfare development department at Yavatmal.
  • The gap in the figures can be attributed to low reporting rates and attempts to suppress cases by tribal leaders, headmen, panchayat members, and non-tribal village leaders. It is clear from the report of a police sub-inspector, Yavatmal that the problem of Kumari Matas dates back to the 1990s for some of them had children, from such liaisons, as old as 20 years .
  • The report states that most Kumari Matas had subsequently got married and their children (from the pre-marital relation) were staying with the former’s natal parents. Therefore, out of the total cases reported in the abovementioned surveys only one first information report (FIR) had been filed with the police; most Kumari Matas, in their statements to the police, said that they do not wish to complain against anybody.
  • Contrary to government surveys, the National Commission for Women and the local NGOs in 2010 claimed that there are more than 300 cases of Kumari Matas. Anita Jambhulkar, founder president of Ramai Bahuudeshiya Mahila Kalyan Sanstha, an NGO active in Yavatmal, claims to have a village-wise list of Kumari Matas prepared over the last decade.
  • She has submitted the complete list along with a related project proposal to the Pandharkawada ITDP office. Thus, there is a wide gap in the figures floated by local NGOs and newspaper reports on the one hand and official data authenticated by the women and child development department, Yavatmal.

Suppression of Crime and Moral Overtones

  • Far from acknowledging the phenomenon of Kumari Matas as a criminal one, tribal women have been further victimised, labelled immoral, and stigmatised. The fact that there has been a near 20-year lag in the surfacing of the issue testifies to the suppression and neglect of the exploitation of tribal women.
  • Ironically, the suppression of this issue has been at the hands of the tribal community leaders.
  • In 2014, a police sub-inspector, Pandharkawada police station, submitted a report to the superintendent of police, Yavatmal noting that only one FIR has been lodged on the issue in Mangurda village. The investigation brought out the fact that this issue dates back to the 1990s.
  • It echoes the WCDO’s findings that two specific tribes—Kolams and Gonds—were primarily affected by this phenomenon and also that the communities chose to resolve them as per their traditions and customs in their specific community panchayats. Therefore, cases could not be filed against the perpetrators of the crime.
  • The fear of defamation has been a significant hurdle in deterring tribal women from reporting to the police and seeking justice. The police responded with the following village-level strategy:
  •  Villagers should report the incidence of Kumari Matas,
  • police patils (village police headmen) should conduct village meetings and encourage the reporting of Kumari Matas,
  •  Kumari Matas should be personally met, counselled and guided about legal remedies and available government aid,
  •  each police station jurisdiction should form a committee under the chairmanship of the block executive magistrate, along with the police patil and president of conflict resolution committee in each village as members, to report and enquire into complaints of Kumari Matas.
  • Even so, only two FIRs were filed. Table 4 indicates that majority of the perpetrators are from the same village as that of the victims. This reduces the possibility of cases being reported. The perpetrators being the rural rich and elite of the village form a nexus along with the police patils and tribal leaders to suppress the reporting of such crimes.
  • Further, as per one newspaper report, visiting contractors and middlemen from Andhra Pradesh too were identified as perpetrators from outside the state in this phenomenon. Personal interviews with the staff of the Pandharkawada ITDP in December 2015 revealed that it was difficult to get into villages, where the cases existed.
  • They related that government officials as well as media persons were driven away by the villagers stating fears of defamation of the whole village. The villagers claimed that no girls from their village would get married in the future as the phenomenon of “Kumari Mata” was a disgrace and would bring misery to the village.
  • As a result, cases of sexual exploitation have got suppressed.
  • Moreover, in such circumstances the morality of tribal women is often questioned. The WCDO, Yavatmal holds that the issue of Kumari Matas has been blown out of proportion by the media and that “live-in” relationships were common amongst tribals.
  • Further, the officer stated that the phenomenon was a tribal “community problem” and hence, they should be left to solve it by themselves—as most of the perpetrators belong to the same village as the victim.
  • Another officer from the district Women and Child Development Department stated that “tribal girls/women get into (sexual) relations with consent and later, when they get pregnant, come to register complaints in the hope of some benefits from the government” (personal interview at Yavatmal, 5 December 2015).
  • The officer went on to claim that if (welfare) schemes were introduced (for Kumari Matas) then the number of such cases would only rise—to claim benefits under the schemes.
  • Thus, bureaucratic attitude tilts towards sitting in moral judgment as opposed to realism or pragmatism. The “let alone” approach, in favour of community trial as opposed to judicial processes, by the state has led to further suppression and neglect of the cases.

Revisiting Tribal Culture

  • The above section reveals the prejudices among state agencies and the bureaucracy against tribal culture. This calls for a closer scrutiny of tribal culture, especially with reference to marriage and social sanctions. It is important to understand what types of “live-in” relations are considered legitimate in tribal society.
  • And conversely, what kind of taboos and sanctions exist? What changes has the impact of assimilation with caste society brought about in tribal culture, especially with regards marriage and separation? What are the factors responsible for the deterioration of the status of tribal women?
  • As per the 2011 Census data, the population of Scheduled Tribes in Yavatmal district stands at 5,14,057 or 18.54% of the district population. The same proportion increases in Jhari Jamni and Pandharkawada sub-districts (where majority of cases are reported) to 38.6% and 17.10% respectively.
  • The major tribes in Yavatmal district are Gonds, Kolams, Andhs, Pardhans, Pardhis, Bhils, and Koli Mahadeos amongst others (Tribal Research and Training Institute 2001), where the Kolams have been identified as a Particularly Vulnerable Tribal Group (PVTG) in Maharashtra for bearing primitive characteristics.
  • Amongst the Gonds of Yavatmal, “live-in” relations were customary practice and the offspring of such relations were considered legitimate. The Gond tribe practised the traditional Gotul system, wherein unmarried girls and boys lived and comingled in dormitories (Karve 1968: 23). Gotul was a socialising institution amongst the Gonds for its young members.
  • Gondi women in the dormitories were free to choose their partner in Gotul by entering into the bachelor’s dormitory and cohabiting with them (Karve 1968). Iravati Karve (1968) notes that this custom was known to the (non-tribal) Marathi-speaking people as “gharghusi.” Gotul was subject to rules and taboos.
  • First, it was a system made available strictly for members of the Gond tribe alone. Second, widows and widowers were debarred from participating in Gotul, that is, from either taking a partner in the dormitory or being taken as a partner by a member of the dormitory.
  • Tribal culture has undergone changes historically due to its proximity to caste society and settled agriculturists (Sarma 1993). Development initiatives and linkages between tribal and non-tribal communities (through transport and communication), too, have facilitated major changes in tribal society.
  • In Yavatmal, the tribals have imbibed non-tribal cultural practices due to cohabitation with non-tribal communities, especially in Jhari Jamni and other Yavatmal blocks. The Gazetteer of Yeotmal District (1974) explained the changes in tribal culture, thus,
  • The Andhas—an aboriginal tribe—have adopted all the practices of Kunbis and can be hardly distinguished in dress and personal appearance from them. They also cultivate in the same manner like Kunbis. They employ Brahmins as their priests and profess as Vaishnavas by religion.
  • Like Andhas, Gonds and Pardhans have also adopted Hindu dress and customs to a larger extent … The tribes speak Gondi language among them but can talk Marathi with outsiders and they dress like the Kunbis. They are tenants and labourers and few are patels [headman] of villages.
  • The Kolams in some respect retain their primitive customs but in dress they can hardly be distinguished from [the] Kunbis … They have a curious survival of marriage by capture. But now this is enacted only as a practice and the whole marriage ceremony resembles that of Kunbis except one of their traditional custom—the bridegroom takes the bride on the lap and their clothes are tied together in two places.
  • The sociological fact is that tribal culture reflects non-tribal cultural elements when it begins to claim social superiority.
  • In tribal culture, women’s freedom was valued such that they were allowed to choose their partners and stay with them. It is well known to sociologists and anthropologists that the flexibility of selection of partners for marriage in tribal culture, widow remarriages, divorce and separation were culturally acceptable and practised.
  • However, due to the assimilation of tribal communities with non-tribal society, the former have imbibed caste patriarchal values. One such element with reference to the marriage systems amongst tribes has been the introduction of dowry.6
  • The giving of gold, gifts, cash, household gadgets, vehicles, electronics, etc, is common practice in caste Hindu marriages in the district and increasingly so, among tribals therein too. In “live-in” relationships amongst tribals, what was valued above all else was the individual freedom to choose partners and lifelong companionship. But in the present context, it is clear that tribal girls are exploited (even by tribal men) and that companionship is rejected by men.
  • Upper-caste men have had structural access to Dalit and Adivasi women for sexual exploitation, exercising this privilege as a matter of routine exercise of power as well as punishment for the latter’s assertions and transgressions (Navsarjan Trust et al 2013).
  • The changing political economy of the region has also rendered tribals dependent on the upper castes for livelihood, credit and accessing benefits from the state. This further accentuates the vulnerability of poor tribal girls and their families to exploitation at the hands of the village elite. As a result, the tribal community too suppresses the cases, rather than acknowledging it and furthermore stigmatising the victims and their families.

Lessons from Kerala

  • The issue of Kumari Matas as we know it now in Maharashtra had a close parallel in Kerala (where they were known as Avivahitharaya Ammamar [unwed mothers]), that too around the same time frame of the 1990s. But the approach of the Kerala government has been qualitatively different in dealing with the issue.
  • The Kerala government constituted the Scheduled Castes and Scheduled Tribes Welfare Committee 1996–98 to look into the issue of tribal unwed mothers in Idukki and Wayanad districts.7 The committee then submitted its report to the state government on 15 December 1997 with an exhaustive list of 34 recommendations in this regard.
  • The report focused on various aspects of discrimination and exclusion of the tribal women and emphasised on state intervention for legal action against the perpetrators of the crime and rehabilitation of the victims. The responsibility of undertaking the corrective measures was entrusted to the tribal development department.
  • The committee further recommended that the health department look into potential cases of sexually transmitted diseases and develop health awareness amongst tribal girls.
  • The committee also commented on the rampant sexual exploitation of tribal women workers in the tea plantations of Kerala and directed the tribal department to register hired labour in the plantations as well as to prevent outsiders from residing in tribal hamlets to stop the sexual exploitation of tribal women.
  • In order to avoid segregation and stigmatisation of the offsprings of tribal unwed mothers, the committee recommended that the Integrated Child Development Services centres (better known as anganwadis) be strengthened in such a way that their offsprings be treated equally (in comparison to other children) and with dignity.
  • The other recommendations focus on rehabilitation measures such as skill-training in handicrafts, priority for tribal unwed mothers in housing schemes, special attention to check the incidence of dropouts by their children by giving additional remuneration to anganwadi sevikas, etc.
  • The committee suggested the allocation of separate funds for the cause of rehabilitating these women through the above suggested measures.
  • Finally, the committee recommended that a monthly review of the implementation of said schemes and programmes should be undertaken by a committee chaired by the district collector. The social justice and empowerment ministry of Kerala provides a monthly payment of ₹1,000 as pension to 935 tribal unwed mothers in 16 districts of Kerala.8
  • The ministry sanctioned ₹6.89 crore for various schemes for unwed mothers in 2011–12, of which ₹3.03 crore was spent on rehabilitative measures, including provision of milch cows, goats, poultry, sewing machines, ration shop, basket-making training, housing, and funds for house repairs.
  • The gaps in implementation of the above schemes notwithstanding, the Kerala government’s approach is pragmatic and judicious. Here the issue of unwed mothers is dealt with seriousness and sensitivity. Besides outreach schemes, booking the culprits has been taken seriously as DNA tests were asked to be conducted on the offsprings of the affected women. Moreover, reservations/prioritising government jobs for the victims have been done with sincerity.9
  • In Kerala, due to high levels of literacy and awareness, the issue of unwed mothers was brought into the public sphere. The tribal associations have also played a crucial role in acknowledging the cases as that of sexual exploitation and coming forward to register FIRs against the culprits of such crimes.
  • Due to this proactive approach of the tribal community and preventive measures initiated by the police, the number of cases of unwed mothers in Kerala has come down.10 Besides this, the Kerala women’s commission has conducted two studies to assess the issue and suggest rehabilitative measures.
  • The study by P K Rejula, research officer at Kerala Women’s Commission, titled Problem of Unwed Tribal Mothers in Kerala in 2004, has brought out various facts about the issue: for instance, the changing status of tribal women in society, economic status and literacy levels of the victims, reasons for sexual exploitation, classification of culprits, etc.
  • Another study titled On the Cross-roads: Unearthing the Socio-economic Challenges Faced by the Unwed Mothers of the Paniya Tribes of Wyanad District, Kerala by Meena Nair (2007) brings out the gap in mainstream as well as governmental understanding of tribal culture so as to address the issue of unwed tribal mothers.
  • The study emphasises that this is important for effective policy interventions.
  • In Maharashtra, though the issue of Kumari Matas dates back to the 1990s it is clear (from the discussion in earlier sections) that this was suppressed till the visit of the NCW in 2013.
  • Even after this, it is found that in Maharashtra there is no political and/or bureaucratic will in dealing with the issue despite local NGOs, media and the women’s commission raising the issue repeatedly.
  • It is critical to note here that the tribal panchayats in Yavatmal have suppressed the issue unlike their counterparts in Kerala, foreclosing the possibilities of trying and punishing the culprits. There are no studies commissioned by the concerned government agencies though there are some proposals submitted by NGOs and research institutes pending with the Tribal Development Department, Tribal Research and Training Institute Pune, ITDP Pandharkawada, and additional tribal commissioner Amravati.
  • Till date, only one question has been raised in the legislative council of Maharashtra (dated 6 May 2014) on the issue and the following assurance was given by the government in response: initiation of  child-rearing schemes,
  •  Swadhargruha [hostel] to be constructed for rehabilitating Kumari Matas and their children, and
  •  benefit under the cess fund of the zilla parishad to be given to Kumari Matas. It was found that with reference to the Bal Sangopan (child rearing scheme), 72 Kumari Matas (41 from Pandharkawada and 31 from Jhari Jamni) were getting ₹425 per month for their children (0–18 age group).
  • 11 Further, just one training session and distribution of sewing machines to Kumari Matas was undertaken in the Pandharkawada region.12 Therefore, hardly any substantial efforts have been put in terms of preventive and rehabilitative measures for Kumari Matas, leaving the latter with a high sense of resentment.
  • In a meeting held at Nagpur under the chairmanship of Ambrishrao Atram, minister of state for tribal development in Maharashtra on 19 December 2014, 18 major decisions were taken regarding the rehabilitation and skill-training of Kumari Matas, expansion of benefits of social welfare and health schemes, extension of legal aid, counselling and legal awareness amongst tribal women.
  • On the ground, however, besides the survey, counselling, monthly child-rearing allowance, and training and distribution of sewing machines to a few hardly anything substantial has been done with reference to the prevention and rehabilitation of Kumari Matas in Maharashtra.

Conclusions

  • Discrepancies in the figures provided by various reports on the incidence of Kumari Matas suggest that the actual cases on the ground are likely to be more than what the reports suggest. In Maharashtra, the issue was concealed until 2009 with some investigations suggesting that the origins of the phenomenon dated back to the 1990s.
  • The suppression of cases in Maharashtra can be attributed to the tribal panchayats’ and leaders’ fears of inviting defamation and disgrace to the entire village and tribe, the nexus between culprits, local/village leaders—both tribal and non-tribal—and police patils which operates to suppress the crime, and the insensitive approach of the state government.
  • There is a need to understand tribal culture, especially “live-in” relationships therein and the rules surrounding it. The freedom of women and lifelong companionship were highly valued. Both these aspects have suffered in the face of stigmatisation and exclusion of Kumari Matas by the community.
  • The absence of acknowledgment that these are cases of sexual exploitation is further incrimination. In Maharashtra, there is a lack of sensitivity, political will, and sincerity, amongst the bureaucracy (barring a few) to deal with the issue.
  • While, in Kerala, the tribal associations have played a proactive role in reporting the cases, in Maharashtra the tribal associations have been instrumental in suppressing the cases. There is an urgent need to move beyond the frames of patriarchal morality and adopt a pragmatic and judicious approach in Maharashtra for preventive and rehabilitative measures for Kumari Matas.

India Ranks 29th in the World by Doing Business’s “Getting Credit” Index

by

Construction of indices are a tricky technique in economics and statistics. Indices seek to provide a way to aggregate diverse attributes. The weights and choice of dimensions tend to override the objective methods of comparison. There are of course “fair” ways of aggregating two attributes, but there is a high possibility of bias influencing results. Certainly, the greatest strength of an index is that it simplifies complex phenomena into comparable numbers.

  • This very simplicity makes ranking popular and hence powerful, making it a dangerous and often misguided tool for policy formulation. While not all stakeholders buy into such rankings, these are widely publicised and become impossible to ignore.
  • While discussions around its methodology hardly get much prominence, the often meaningless movement of ranks gain undue public attention.
  • What is more troubling is when such rankings incentivise governments to tweak their policies in order to go up the ranks. In fact, the Indian government in its output–outcome framework document for 2017–18 for industrial policy and promotion states as its first goal, the desire to reach the 90th rank in the EDB index in 2017–18 and 30th rank by 2020.
  • India, as has been widely reported, now ranks 100, up from 130 last year. Now, for instance, India ranks 29th in the world by Doing Business’s “getting credit” index leading to the impression that India is doing quite well on the access to credit front, contrary to many enterprise survey and research findings.
  • This index actually measures the “strength of credit reporting systems and the effectiveness of collateral and bankruptcy laws in facilitating lending,” and not “access to credit.” Review reports of Doing Business have also noted that it uses misleading terminology that has a far-reaching influence on public perceptions of economies.
  • The terms used suggest that the indices provide a comprehensive measure of business environment, while it only looks at on-paper regulations. The desire to go up the ranks tends to lead governments to change policy in favour of what drives the index, which need not be what their people or economy require.
  • The perception that a better ranking is positively correlated with foreign direct investment is another problematic consequence of these rankings.
  • Importantly, this one-size-fits-all approach to the “ease of doing business” ignores the diverse contexts of development in different countries. If countries fulfil these conditions, disregarding their own contexts and paths of development, they climb up the ranks.
  • This is akin to a world cup football tournament that lays out not only a common set of rules to be played by, but also rewards one strategy over others! Though Doing Business avowedly wants to inform policy, and not prescribe it, nor outline a normative position, its rankings do precisely that.
  • The newest controversy should prompt the World Bank to have another look and to do away with the EDB index altogether.