A blow against free speech
At the dawn of the 17th century, Englishmen were in the habit of challenging each other to violent duels in order to avenge personal insults. Public disorder was frequent and the authorities decided to step in. To obviate the need for duels, they began to prosecute defamation as a criminal offence. So was born the notorious “criminal libel”. Truth was no defence since a true defamatory statement was as likely to lead to a breach of peace as a false one. There was even a saying, “the greater the truth, the greater the libel.” Two hundred and fifty years later, in 1860, the British imported their idea of criminal libel into the newly-minted Indian Penal Code (IPC). Section 499 of the IPC criminalised intentionally defamatory statements. True statements were not exempted, unless they also happened to be made for the “public good”.
World has moved on
So much for history. In the 400 years after the origin of criminal defamation in England, and in the 150 years after the drafting of the IPC, the world has moved on. There are no more duels. In 2009, the United Kingdom abolished criminal defamation altogether. More recently, the Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction upon the freedom of speech. The apex courts of the United States, Canada and South Africa have transformed criminal defamation out of all recognition, adding defences that make it far more protective of the freedom of speech and expression. There has been a growing recognition all over the world that criminal defamation is a powerful tool in the hands of politicians and corporations to stifle and suffocate inconvenient speech.
On Friday, however, none of this seemed to matter to the Indian Supreme Court. Dismissing a petition filed by Subramaniam Swamy challenging the constitutionality of Section 499 of the IPC (Dr. Swamy was later joined by a whole host of figures across the political spectrum, including Rahul Gandhi and Arvind Kejriwal), the court kept the 1860 provision, with its 17th century roots, entirely intact. In order to keep such an onerous offence on the statute books, the court had to construct novel arguments which will have serious and unfortunate implications for the freedom of speech and expression in the coming years.
Using reputation as right
First, it held that the right to “reputation” was protected under Article 21 of the Constitution which guarantees “life and personal liberty”. Now, Article 21 only protects the individual’s life and liberty against interference by the state. Notwithstanding this minor textual hurdle, the Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21. The court never explained how this balancing exercise was to be carried out, but simply asserted that since reputation could not be “crucified” at the altar of free speech, criminal defamation was constitutional.
The two moves that the court made — the first, to elevate “reputation” to the level of a fundamental right, and second, to have it prevail over free speech — have no basis in either the text or the structure of the Constitution. They are also dangerous moves. Over the last 30 years, along with its PIL jurisdiction, the court has radically expanded the scope of the right to “life and personal liberty” under Article 21. Article 21 has been held to include the right to sleep, and the right to a pollution-free environment, among other things. For the most part, the court has used this expanded definition to force the state to undertake various “social justice” and welfare measures for the benefit of citizens. But on Friday, the court did something else. Instead of using Article 21 as a shield to protect the individual against State persecution or indifference, it used it as a sword to cut down the fundamental right to freedom of speech and expression. There have been hints of this before in the court’s jurisprudence, but on Friday, this new doctrine of “death by Article 21” emerged as a serious threat to the future of constitutional rights. Article 21 has now become so vast, that if its use as a sword becomes a regular feature, then it will likely soon swallow up the rest of the fundamental rights chapter.
Invoking ‘constitutional fraternity’
The court’s second argument was to invoke something that it called “constitutional fraternity”. It held that criminal defamation law protected the feeling of fraternity — or solidarity — between members of a society. While this may sound fair enough, there is a slight problem. “Constitutional fraternity” is not a part of Article 19(2) of the Constitution, which specifically limits the circumstances under which the state can restrict speech to eight enumerated categories. It is also nowhere in the fundamental rights chapter of the Constitution, so the question of “balancing” free speech against constitutional fraternity does not arise. The word “fraternity” is mentioned in the Constitution’s preamble, as an aspirational goal for the newly independent Indian Republic, alongside “liberty” and “equality” — the three great slogans that originated with the French Revolution. And it was always meant to be that — an abstract concept and a rallying cry, signifying a dream and a utopia. It was never meant to become a tool to broaden the scope of restrictions upon fundamental rights.
Apart from its broad, almost undefinable nature, there is something particularly unfortunate about using “fraternity” to cut down civil rights. The existence of “fraternity” alongside liberty and equality is due to the realisation that in a deeply unequal society, guaranteeing civil rights (“liberty”) and equality before law are not enough. “Fraternity” signifies a common humanity, an end to the exploitation of human beings by other human beings. As B.R. Ambedkar observed, in his last speech to the Constituent Assembly: “…Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.”
Fraternity, then, was meant to complement civil rights, not to destroy them. The Constitution’s framers did not use this symbolic term for a court to come along 66 years later, and appropriate it for the purposes of subordinating individual rights to some mythic notion of community harmony, entirely submerging the individual within the society.
Silences and omissions
There are, therefore, serious problems with the court’s stated justifications for upholding the constitutionality of criminal defamation. Equally problematic are the silences, the arguments that the court failed to engage with. For instance, it made no mention of the fact that Section 499 does not allow for “honest mistake” as a defence. This omission is especially glaring because this very Supreme Court, 22 years ago, had found that the civil law of defamation, as it then stood, was unconstitutional and a disproportionate restriction upon free speech, since it did not allow for “honest mistake”. Last week’s judgment creates a bizarre legal situation where criminal liability for defamation is attracted at a lower threshold than civil liability! Equally disappointing is the court’s cursory, one-paragraph dismissal of the claim that criminal defamation creates a chilling effect upon speech. Such proclamations are easy to make from the high, secure, and insulated bench of the Supreme Court. It is journalists and newspapers, fighting hundreds of frivolous cases in court, who have to deal with the very real consequences.
The Indian Supreme Court has always had an ambivalent relationship with the freedom of speech and expression. From upholding the constitutionality of sedition, blasphemy and obscenity on the one hand, to Justice V.R. Krishna Iyer writing about how “books or bombs” might disturb public tranquillity, the court has treated free speech more as an annoyance to be swatted aside whenever “public interest” demands it, rather than the fundamental right at the foundation of our republican democracy. Its defamation law judgment continues that long, unfortunate history.
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On March 31, the World Economic Forum (WEF) released its annual Gender Gap Report 2021. The Global Gender Gap report is an annual report released by the WEF. The gender gap is the difference between women and men as reflected in social, political, intellectual, cultural, or economic attainments or attitudes. The gap between men and women across health, education, politics, and economics widened for the first time since records began in 2006.
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]No need to remember all the data, only pick out few important ones to use in your answers.
The Global gender gap index aims to measure this gap in four key areas : health, education, economics, and politics. It surveys economies to measure gender disparity by collating and analyzing data that fall under four indices : economic participation and opportunity, educational attainment, health and survival, and political empowerment.
The 2021 Global Gender Gap Index benchmarks 156 countries on their progress towards gender parity. The index aims to serve as a compass to track progress on relative gaps between women and men in health, education, economy, and politics.
Although no country has achieved full gender parity, the top two countries (Iceland and Finland) have closed at least 85% of their gap, and the remaining seven countries (Lithuania, Namibia, New Zealand, Norway, Sweden, Rwanda, and Ireland) have closed at least 80% of their gap. Geographically, the global top 10 continues to be dominated by Nordic countries, with —Iceland, Norway, Finland, and Sweden—in the top five.
The top 10 is completed by one country from Asia Pacific (New Zealand 4th), two Sub-Saharan countries (Namibia, 6th and Rwanda, 7th, one country from Eastern Europe (the new entrant to the top 10, Lithuania, 8th), and another two Western European countries (Ireland, 9th, and Switzerland, 10th, another country in the top-10 for the first time).There is a relatively equitable distribution of available income, resources, and opportunities for men and women in these countries. The tremendous gender gaps are identified primarily in the Middle East, Africa, and South Asia.
Here, we can discuss the overall global gender gap scores across the index’s four main components : Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment.
The indicators of the four main components are
(1) Economic Participation and Opportunity:
o Labour force participation rate,
o wage equality for similar work,
o estimated earned income,
o Legislators, senior officials, and managers,
o Professional and technical workers.
(2) Educational Attainment:
o Literacy rate (%)
o Enrollment in primary education (%)
o Enrollment in secondary education (%)
o Enrollment in tertiary education (%).
(3) Health and Survival:
o Sex ratio at birth (%)
o Healthy life expectancy (years).
(4) Political Empowerment:
o Women in Parliament (%)
o Women in Ministerial positions (%)
o Years with a female head of State (last 50 years)
o The share of tenure years.
The objective is to shed light on which factors are driving the overall average decline in the global gender gap score. The analysis results show that this year’s decline is mainly caused by a reversal in performance on the Political Empowerment gap.
Global Trends and Outcomes:
– Globally, this year, i.e., 2021, the average distance completed to gender parity gap is 68% (This means that the remaining gender gap to close stands at 32%) a step back compared to 2020 (-0.6 percentage points). These figures are mainly driven by a decline in the performance of large countries. On its current trajectory, it will now take 135.6 years to close the gender gap worldwide.
– The gender gap in Political Empowerment remains the largest of the four gaps tracked, with only 22% closed to date, having further widened since the 2020 edition of the report by 2.4 percentage points. Across the 156 countries covered by the index, women represent only 26.1% of some 35,500 Parliament seats and 22.6% of over 3,400 Ministers worldwide. In 81 countries, there has never been a woman head of State as of January 15, 2021. At the current rate of progress, the World Economic Forum estimates that it will take 145.5 years to attain gender parity in politics.
– The gender gap in Economic Participation and Opportunity remains the second-largest of the four key gaps tracked by the index. According to this year’s index results, 58% of this gap has been closed so far. The gap has seen marginal improvement since the 2020 edition of the report, and as a result, we estimate that it will take another 267.6 years to close.
– Gender gaps in Educational Attainment and Health and Survival are nearly closed. In Educational Attainment, 95% of this gender gap has been closed globally, with 37 countries already attaining gender parity. However, the ‘last mile’ of progress is proceeding slowly. The index estimates that it will take another 14.2 years to close this gap on its current trajectory completely.
In Health and Survival, 96% of this gender gap has been closed, registering a marginal decline since last year (not due to COVID-19), and the time to close this gap remains undefined. For both education and health, while progress is higher than economy and politics in the global data, there are important future implications of disruptions due to the pandemic and continued variations in quality across income, geography, race, and ethnicity.
India-Specific Findings:
India had slipped 28 spots to rank 140 out of the 156 countries covered. The pandemic causing a disproportionate impact on women jeopardizes rolling back the little progress made in the last decades-forcing more women to drop off the workforce and leaving them vulnerable to domestic violence.
India’s poor performance on the Global Gender Gap report card hints at a serious wake-up call and learning lessons from the Nordic region for the Government and policy makers.
Within the 156 countries covered, women hold only 26 percent of Parliamentary seats and 22 percent of Ministerial positions. India, in some ways, reflects this widening gap, where the number of Ministers declined from 23.1 percent in 2019 to 9.1 percent in 2021. The number of women in Parliament stands low at 14.4 percent. In India, the gender gap has widened to 62.5 %, down from 66.8% the previous year.
It is mainly due to women’s inadequate representation in politics, technical and leadership roles, a decrease in women’s labor force participation rate, poor healthcare, lagging female to male literacy ratio, and income inequality.
The gap is the widest on the political empowerment dimension, with economic participation and opportunity being next in line. However, the gap on educational attainment and health and survival has been practically bridged.
India is the third-worst performer among South Asian countries, with Pakistan and Afghanistan trailing and Bangladesh being at the top. The report states that the country fared the worst in political empowerment, regressing from 23.9% to 9.1%.
Its ranking on the health and survival dimension is among the five worst performers. The economic participation and opportunity gap saw a decline of 3% compared to 2020, while India’s educational attainment front is in the 114th position.
India has deteriorated to 51st place from 18th place in 2020 on political empowerment. Still, it has slipped to 155th position from 150th position in 2020 on health and survival, 151st place in economic participation and opportunity from 149th place, and 114th place for educational attainment from 112th.
In 2020 reports, among the 153 countries studied, India is the only country where the economic gender gap of 64.6% is larger than the political gender gap of 58.9%. In 2021 report, among the 156 countries, the economic gender gap of India is 67.4%, 3.8% gender gap in education, 6.3% gap in health and survival, and 72.4% gender gap in political empowerment. In health and survival, the gender gap of the sex ratio at birth is above 9.1%, and healthy life expectancy is almost the same.
Discrimination against women has also been reflected in Health and Survival subindex statistics. With 93.7% of this gap closed to date, India ranks among the bottom five countries in this subindex. The wide sex ratio at birth gaps is due to the high incidence of gender-based sex-selective practices. Besides, more than one in four women has faced intimate violence in her lifetime.The gender gap in the literacy rate is above 20.1%.
Yet, gender gaps persist in literacy : one-third of women are illiterate (34.2%) than 17.6% of men. In political empowerment, globally, women in Parliament is at 128th position and gender gap of 83.2%, and 90% gap in a Ministerial position. The gap in wages equality for similar work is above 51.8%. On health and survival, four large countries Pakistan, India, Vietnam, and China, fare poorly, with millions of women there not getting the same access to health as men.
The pandemic has only slowed down in its tracks the progress India was making towards achieving gender parity. The country urgently needs to focus on “health and survival,” which points towards a skewed sex ratio because of the high incidence of gender-based sex-selective practices and women’s economic participation. Women’s labour force participation rate and the share of women in technical roles declined in 2020, reducing the estimated earned income of women, one-fifth of men.
Learning from the Nordic region, noteworthy participation of women in politics, institutions, and public life is the catalyst for transformational change. Women need to be equal participants in the labour force to pioneer the societal changes the world needs in this integral period of transition.
Every effort must be directed towards achieving gender parallelism by facilitating women in leadership and decision-making positions. Social protection programmes should be gender-responsive and account for the differential needs of women and girls. Research and scientific literature also provide unequivocal evidence that countries led by women are dealing with the pandemic more effectively than many others.
Gendered inequality, thereby, is a global concern. India should focus on targeted policies and earmarked public and private investments in care and equalized access. Women are not ready to wait for another century for equality. It’s time India accelerates its efforts and fight for an inclusive, equal, global recovery.
India will not fully develop unless both women and men are equally supported to reach their full potential. There are risks, violations, and vulnerabilities women face just because they are women. Most of these risks are directly linked to women’s economic, political, social, and cultural disadvantages in their daily lives. It becomes acute during crises and disasters.
With the prevalence of gender discrimination, and social norms and practices, women become exposed to the possibility of child marriage, teenage pregnancy, child domestic work, poor education and health, sexual abuse, exploitation, and violence. Many of these manifestations will not change unless women are valued more.
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]2021 WEF Global Gender Gap report, which confirmed its 2016 finding of a decline in worldwide progress towards gender parity.
Over 2.8 billion women are legally restricted from having the same choice of jobs as men. As many as 104 countries still have laws preventing women from working in specific jobs, 59 countries have no laws on sexual harassment in the workplace, and it is astonishing that a handful of countries still allow husbands to legally stop their wives from working.
Globally, women’s participation in the labour force is estimated at 63% (as against 94% of men who participate), but India’s is at a dismal 25% or so currently. Most women are in informal and vulnerable employment—domestic help, agriculture, etc—and are always paid less than men.
Recent reports from Assam suggest that women workers in plantations are paid much less than men and never promoted to supervisory roles. The gender wage gap is about 24% globally, and women have lost far more jobs than men during lockdowns.
The problem of gender disparity is compounded by hurdles put up by governments, society and businesses: unequal access to social security schemes, banking services, education, digital services and so on, even as a glass ceiling has kept leadership roles out of women’s reach.
Yes, many governments and businesses had been working on parity before the pandemic struck. But the global gender gap, defined by differences reflected in the social, political, intellectual, cultural and economic attainments or attitudes of men and women, will not narrow in the near future without all major stakeholders working together on a clear agenda—that of economic growth by inclusion.
The WEF report estimates 135 years to close the gap at our current rate of progress based on four pillars: educational attainment, health, economic participation and political empowerment.
India has slipped from rank 112 to 140 in a single year, confirming how hard women were hit by the pandemic. Pakistan and Afghanistan are the only two Asian countries that fared worse.
Here are a few things we must do:
One, frame policies for equal-opportunity employment. Use technology and artificial intelligence to eliminate biases of gender, caste, etc, and select candidates at all levels on merit. Numerous surveys indicate that women in general have a better chance of landing jobs if their gender is not known to recruiters.
Two, foster a culture of gender sensitivity. Take a review of current policies and move from gender-neutral to gender-sensitive. Encourage and insist on diversity and inclusion at all levels, and promote more women internally to leadership roles. Demolish silos to let women grab potential opportunities in hitherto male-dominant roles. Work-from-home has taught us how efficiently women can manage flex-timings and productivity.
Three, deploy corporate social responsibility (CSR) funds for the education and skilling of women and girls at the bottom of the pyramid. CSR allocations to toilet building, the PM-Cares fund and firms’ own trusts could be re-channelled for this.
Four, get more women into research and development (R&D) roles. A study of over 4,000 companies found that more women in R&D jobs resulted in radical innovation. It appears women score far higher than men in championing change. If you seek growth from affordable products and services for low-income groups, women often have the best ideas.
Five, break barriers to allow progress. Cultural and structural issues must be fixed. Unconscious biases and discrimination are rampant even in highly-esteemed organizations. Establish fair and transparent human resource policies.
Six, get involved in local communities to engage them. As Michael Porter said, it is not possible for businesses to sustain long-term shareholder value without ensuring the welfare of the communities they exist in. It is in the best interest of enterprises to engage with local communities to understand and work towards lowering cultural and other barriers in society. It will also help connect with potential customers, employees and special interest groups driving the gender-equity agenda and achieve better diversity.