Author Archive for Nay Alhelou

Social Media Platforms: A Theater for Exercising Free Speech

Guest contributor Maanya Vaidyanathan is the Policy and Engagement Manager at The Dialogue, a tech policy think-tank in India. She specialises in International Law, Gender Policies, Intermediary Liabilities and Foreign Policy. 

Guest contributor Kazim Rizvi is a Public-Policy Policy Entrepreneur and Founder of The Dialogue, a tech policy think-tank in India. Kazim is one of the leading voices in India’s tech policy discourse.

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

― John Milton, Areopagitica

Freedom of speech and expression gives individuals the right to freely express themselves without the fear of being reprimanded. This right, however, is neither absolute nor devoid of responsibility. It is a complex right that comes with reasonable restrictions, as given in Article 19(2) of the Indian Constitution

Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the International Convention for Civil and Political Rights provide for freedom of speech and expression in any medium, including online media. In 2020, the Supreme Court of India guaranteed this right in the online world in a landmark judgment on the internet shutdowns in Kashmir. 

The court ruled that freedom of speech and expression and the right to carry on any trade or business using the internet, is constitutionally protected and the restrictions on this freedom must be imposed under the terms stated under Article 19(2) of the Constitution.

Online platforms act as vital communication tools which dominate our everyday lives and act as a medium for spreading and gathering news. Over the last few years, the online world has allowed people to create their own communities and find the support, encouragement and courage that they may not find elsewhere. Additionally, the virtual space has given a lot of underrepresented sections of society an identity and a platform to express themselves freely, without the fear of judgment. The internet and its intermediaries play a pivotal role in allowing people from all over the world to connect, gather information and create a sense of belonging.

Every commodity has the potential for misuse, and the internet is no exception. Along with the safe spaces that have been created online, the online world has become a breeding ground for hate speech and fake news. 

In order to tackle the growing menace in the online space, the Government of India introduced the draft amendment to the 2018 guidelines under the Information Technology Act. The changes in the amended guidelines prescribe certain conditions for content hosting platforms to seek protection for third-party content. The aim of the guidelines is to reduce the flow of unwanted and controversial content on social media platforms by mandating ‘automated filters’ to mechanically take content off the platforms and trace the original author to hold them accountable. This step, however, is not conducive with the spirit of free speech. The amended guidelines fail to define subjective phrases that warrant removal of content – such as “decency” and “morality”- which gives way to a take-down process that is arbitrary and inconsistent.

The amended rules also risk misinterpretation as the drafters have not identified any proposed metrics to determine how such online content may harm public safety and critical information infrastructure. This shows how the guidelines are contrary to the landmark ruling The Supreme Court gave in the Shreya Singhal judgment in 2015.

Additionally, the revised guidelines compromise the practice of end-to-end encryption, which will give way to widespread government censorship and surveillance.  End-to-end encryption is a system of communication where the only people who can read the messages are the people communicating. Through this system, for intermediaries to monitor content, they would have to know what the content is, which may threaten users’ privacy along with their right to free speech.

The amended guidelines lead to the violation of an individual’s right to privacy, right to equality (allowed under Article 14 of the Indian Constitution) and most importantly, the right to free speech. These three rights are fundamental human rights, awarded to each individual through national and international legislation. The internet has the power to reach the masses and allows everyone the opportunity to have a voice and call out instances of injustice and mistreatment that they may witness. Through social media platforms, citizens across the world can unite despite territorial limitations. Hate speech makes the internet a toxic environment to navigate, while fake news makes it an unreliable environment. However, censoring and controlling the speech of every user will not curb these nuisances. 

Policies are required to take into consideration the interests of all people, either individually or collectively. What is therefore desirable is regulation of social media, not its censorship. Social media platforms need to continue to remain theaters for safely exercising the right to free speech.

Why the EU Should Reconsider Renegotiating the 2016 EU-Turkey Migration Deal

Guest Contributor Ali Cain is an M.A. Candidate in the European History, Politics and Society Program at Columbia University. She is additionally the Program Coordinator for the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR). Her research interests include populism, refugee rights and transatlantic relations.

Turkish President Recep Tayyip Erdogan has used over 4 million refugees in Turkey as political blackmail against the European Union (EU). Leveraging the 2016 EU-Turkey Migration Deal, Erdogan has consistently threatened to “open the floodgates” and allow refugees to cross into neighboring Greece whenever his demands are not  met. Previous demands have included quicker EU accession talks, European support for a refugee safe zone in northern Syria, and more funding to support refugees.

 In late February 2020, Russian and Syrian government forces attacked the Syrian province of Idlib, forcing thousands to flee into northwest Turkey. In response, Erdogan finally fulfilled his threats and allowed thousands of refugees to leave, even providing buses for transportation to the Greek border. Upon arrival, refugees were greeted with tear gas, barricades and shouts to go back home. Videos later surfaced of the Greek Coast Guard circling refugee boats in what looked like an effort to both deter them from landing but also capsize them. The New York Times further reported that the Greek Coast Guard beat migrants with sticks and shot at them, resulting in the death of a Syrian refugee. Worryingly, the EU’s willpower and ability to address this crisis and reinvigorate the discussion over modifications to Europe’s Common European Asylum System (CEAS) is substantially reduced as it now faces the surmounting challenge of tackling COVID-19. 

In discussing this new migration crisis, the EU has taken a defensive position in calling for the protection of Europe’s borders. Instead of using this opportunity to reinitiate a conversation on a “fresh start” for Europe’s asylum system as she advocated for during her consideration for EU Commission President, Ursula von der Leyen instead commended Greece for being Europe’s shield and offered its government €700 million ($769,968,000) of aid, €350 million ($384,984,000) of which would go to strengthening Greece’s border control. While offering support to Greece, Ms. von der Leyen and European Council President Charles Michel also visited Turkey to discuss renegotiating the 2016 EU-Turkey Migration Deal. At the height of the 2015 refugee crisis, the EU and Turkey agreed that each individual who arrived at the Greek border by boat and/or without official permission would be returned to Turkey, as it is considered a safe country for “irregular” migrants. In exchange for every individual sent to Turkey, a Syrian would be accepted into an EU member state. The EU initially agreed to provide €3 billion ($3,299,860,000) of assistance to the Turkish government to fund on-the-ground projects for refugees. 

Since the agreement was finalized, Erdogan has demanded more funding and the EU has obliged, increasing its contributions to €6 billion ($6,599,720,000) and extending its support of projects until 2025. Other parts of the deal have faltered; the EU agreed to visa liberalization for Turkish citizens and a reinvigoration of accession discussions regarding Turkey joining the EU. However, there has been little movement on both of these commitments due to Erdogan’s growing usurpation of power which has led to an increased crackdown on opposition, heightened violence towards the Kurdish community, and greater involvement in the Syrian conflict. The EU has additionally failed to accept its agreed exchange of Syrian refugees. Only 27,000 have been resettled since 2016. 

Many European governments would see the original agreement as a logistical success given that its goal was to deter refugees from coming to Europe. Yet, although migration from Turkey has fallen by 97%, a crisis still remains. Turkey is growing increasingly unsafe for refugees. The renegotiation of this deal would allow Erdogan to continue fostering an unsafe environment, pressure Europe into more funding, infringe on refugee’s human rights and further challenge Europe’s human rights commitments. 

First and foremost, Turkey does not meet and will not meet the EU’s standards for accession. Since a 2016 coup attempt, Erdogan has made Turkey, which was once applauded as a successful Muslim democracy, into an increasingly authoritarian state. Following the coup, he fired thousands of government workers, educators, and military members and arrested many of them for “anti-state” crimes. He then issued a referendum in 2017, allowing him to consolidate executive power by controlling elections, intervening in the judiciary, and appointing ministers directly. This power grab led to international outcry, including from the EU who referred to the constitutional changes as a “big setback for democracy.”  

Turkey’s increasingly authoritarian state is best exemplified in its status as the biggest jailer of journalists by the Committee to Protect Journalists and its ranking as “not free” by Freedom House. Erdogan’s actions clearly violate Europe’s commitment to human rights and its principles for the accession process; any previous reforms that satisfied the EU’s conditions for membership should now be considered completely null and void. Therefore, a renegotiation of this deal that commits to reassessing Turkish accession is not only woefully misguided but jeopardizes the human rights standards and legal commitments the EU is obligated to uphold. 

Second, refugees in Turkey are facing increasingly hostile conditions due to rising unemployment and growing xenophobia that conflict with Turkey’s status as a safe country. There are over 3.6 million Syrian refugees in Turkey. 64% of those living in Turkish cities are living at or below the poverty line because it is extremely challenging for refugees to obtain working permits. Unemployment in Turkey is now at 13%. 

This had contributed to an increase in xenophobic sentiment among Turkish society. It has been reported that 60-80% of Turks  want Syrian refugees out. Violence has begun to occur, with Syrian owned stores being attacked in July 2019 after a false rumor about a Syrian sexually assaulting a minor was circulated. The hashtag #ÜlkemdeSuriyeliIstemiyorum (I don’t want Syrians in my country) has become prominent throughout Turkish social media. 

This public pressure, as well as the clear strain on Turkey’s social services, has led to increased deportations. There is a lack of accountability in ensuring asylum procedures are lawfully carried out. Turkey is a signatory to the 1951 Refugee Convention and its 1967 Protocol, and is therefore required to not only protect refugees but also uphold the international legal principle of non-refoulment which mandates that refugees cannot be sent back to countries where they will face human rights violations.  A 2019 investigation by Refugees International found that Turkish authorities were increasingly stopping Syrian refugees to check their identification papers and accelerating deportations to Syria, many of which were forced returns. Furthermore, Erdogan has sought to resettle Syrian refugees in a “safe zone” controlled by American backed Kurdish forces. Many have criticized this plan, including the Europeans. A resettlement in northern Syria, where violence continues, not only threatens refugees but also enflames Turkey’s tensions with the Kurds. Although this plan is at a stand-still, Erdogan continues to seek out and demand support, using his release of refugees into Europe as political bait.  

Finally, the 2016 deal has allowed for conditions to also worsen for refugees in Greece. Those who arrived in Greece following the agreement were prohibited from crossing into mainland Europe, resulting in refugees having to seek asylum in Greece or face immediate deportation to Turkey. Because the deal mandates that all of those who fail to qualify for asylum be deported, Greek authorities must detain everyone who is considered to have entered Greece irregularly, which has led to overcrowding in detention centers. An estimated 40,000 people live in facilities built for 6,000. Conditions in these camps are dire; Amnesty International reported those detained on the Greek islands of Lesbos and Chios had “no access to legal aid, limited access to services and support, and hardly any information about their status or possible fate.” The Greek islands have thus become a prison of both limbo and inhumane living conditions for asylum seekers. According to the New York Times, Greece has detained migrants at secret detention centers and is sending them to Turkey without any due process on their asylum claims. Although Greece does have the right to detain those who enter its borders, it is nevertheless obliged by international law to give each asylum applicant a fair and timely consideration. 

Additionally, the European Commission announced it would offer €2,000 ($2,199) to those living in Greek detention camps who voluntarily agreed to return home. Although the Commission stated that the intended recipients of this funding are economic migrants and not refugees, poor camp conditions and severely delayed asylum decisions could put pressure on refugees to return to their home countries. It is also questionable how many economic migrants are in Greece, considering that most individuals are from war-torn Syria, Afghanistan and Iraq. Instead of trying to buy out migrants in returning home to potentially unstable states, the Commission could instead use its funding to better improve the living conditions in detention facilities and support Greece’s government in processing its asylum applications more efficiently. 

Turkey’s concerns about the refugee crisis  are not totally unfounded as it is the largest host country in the world. Considerable strain has been placed on its social services and its population. Hosting four million refugees in a country that is struggling economically is not an easy task. However, growing anti-refugee sentiment and the subsequent harms to the refugee population in the country is one of many clear signals that the EU should not renegotiate its 2016 deal with Turkey. Rather, steps ought to be taken to address the structural causes of such a high number of refugees forced to leave their homes. The EU should not allow itself to continue to be in Erdogan’s chokehold; by continuing its “payer not player” status in using funds as a conflict resolution mechanism instead of diplomacy and mediation, the EU is helping to prolong violence in Syria, Iraq and Afghanistan. Although the world is currently occupied with COVID-19, and rightfully so, the EU will have to return to its discussion on migration reform eventually.  When it does, it has moral and legal obligations to protect refugees and to figure out a solution that is dependent on European states and international law, not Erdogan’s will. 

Failing to Protect Human Rights: The United States and the Asylum Cooperation Agreements

By: Jacquelyn Sieck, RightsViews Staff Writer 

In 2019, the United States forced countries in the Northern Triangle – a region composed of Guatemala, El Salvador, and Honduras – to sign Asylum Cooperation Agreements by withholding over $500 Million in aid. These threats of aid suspension echo Cold War-Era proxy war interventions in Central America, during which the United States blocked the Guatemalan government from receiving “much-needed” development loans from the World Bank because it did not approve of the Arévalo Government. During these proxy wars, the United States offered “support for a coup in Guatemala, brutal government forces in El Salvador, and right-wing rebels based in Honduras known as the Contras.” This U.S. support led to gross human rights abuses, and demonstrated to the region that the United States is willing to act on threats and suspend aid to governments in need in order to further its foreign policy objectives. This sentiment and realization forced the Northern Triangle to respond swiftly to the aid suspension by signing the formal Agreements, after which over $143 Million in aid was released to the countries. 

The Asylum Cooperation Agreements were each signed bilaterally between the United States and the respective Northern Triangle country. The Agreements allow for the transfer of asylum seekers who arrive in the United States without having applied for asylum in at least one third country. Most alarming about the Asylum Cooperation Agreements, however, are that they designate Honduras, El Salvador, and Guatemala as “safe.” This is in spite of the fact that in 2018, El Salvador had 51 murders per 100,000 people, and Honduras had 40. Further, the U.S. Department of State’s yearly Country Reports on Human Rights Practices have recognized human rights violations, violence, and impunity in the countries of the Northern Triangle. The United States’ 2017 National Security Strategy explicitly states: “transnational criminal organizations—including gangs and cartels— perpetuate violence and corruption, and threaten the stability of Central American states including Guatemala, Honduras, and El Salvador.” These government reports show that the United States has, in fact, recognized the violence in the region; the United States government is attempting to argue these countries are safe while having produced numerous documents which argue the exact opposite.

This recognition of violence in the region can be found in the numbers of asylum grants and applications from the region in recent years. In August of Fiscal Year 2019, the United States Citizenship and Immigration Service published statistics that 72% of the migrants apprehended at the U.S. Southern border were from the Northern Triangle countries. Another report, authored by Nadwa Mossad in the DHS Office of Immigration Statistics, published statistics that in FY 2016, 27.1% of all asylum grants were from El Salvador, Honduras, and Guatemala. This number was met by 31.9% of all asylum grants being from the Northern Triangle in FY 2017, and 19% of all asylum grants in FY 2018. In order to be granted asylum, the applicant must meet the Immigration and Nationality Act definition of a refugee – have a well-founded fear of persecution on account of race, religion, membership in a particular social group, or political opinion –  and be inside the United States. 

There has been a large pushback to the newly signed Agreements from civilians and legislators in all countries involved. Guatemalan media began recognizing that their Congress had not passed the Agreement and El Salvadoran Elected Representatives talked about how the Agreement contradicted the laws on migration and foreigners. Moreover, the President of El Salvador, Nayib Bukele, discussed how El Salvador did not have the capacity to maintain a humane environment for asylum seekers. This lack of capacity is shown by statistics the government of El Salvador published, which stated they only processed 87 refugee applications and zero political asylum applications between June 12, 2014, and June 12, 2019. Guatemala received 262 asylum requests in all of 2018 and only has four asylum officers to manage them. In the United States, civil society organizations sued the Trump Administration, but the U.S. Supreme Court stated the policy could be enforced while lower courts continue their adjudications. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented and stated that the Agreements  “upend longstanding practices regarding refugees who seek shelter from persecution.”

The effects of the aid suspension have already been experienced by the region, as projects remain at risk because the State Department “reportedly reprogrammed $404 million (82%) of the $490 million of FY2018 assistance Northern Triangle.” The Congressional Research Service has said that this lost aid “could jeopardize recent improvements in security conditions in the Northern Triangle,” noting that “homicide rates are reportedly increasing once again in some neighborhoods in Honduras from which USAID withdrew due to a lack of funds.” 

The risks, however, have already begun for asylum seekers: the first Honduran asylum seeker arrived in Guatemala on November 22, 2019. The asylum seeker was reportedly offered asylum in Guatemala, a job, and a place to live, but decided to return to Honduras. Less than two weeks later, two more Honduran asylum seekers and the first El Salvadoran asylum seekers were transferred to Guatemala, and Alejandra Mena, the spokeswoman for the Guatemalan migration institute “did not specify whether the migrants from Honduras and El Salvador would seek asylum in Guatemala or return to their countries.” The uncertainty as to whether the migrants will return to the country from which they fled shows the dangers of the Agreements in providing protection to asylum seekers.

These Agreements show a continued U.S. influence in Central America, and put the safety of Asylum seekers at risk by forcing the Northern Triangle governments, all of whom have a mass exodus of citizens each year who seek asylum in the United States, to sign Asylum Cooperation Agreements and begin accepting transfers of asylum seekers. The transfer of tens of thousands of asylum seekers to these Northern Triangle countries will place an extreme burden on underdeveloped asylum systems that have only handled hundreds of cases in the past few years. With over 59,000 migrants on the U.S.-Mexico border awaiting U.S. immigration hearings, the failure to protect asylum seekers remains evident. As of February 4, 2020 the United States has transferred 378 Honduran and El Salvadoran asylum seekers to Guatemala, the majority of whom are women and children. In order to protect human rights, the United States must stop the transfer of asylum seekers to dangerous countries which have underdeveloped asylum systems and cannot offer protection to those the transfers which arrive.

The Kashmir Issue: How “Miller (2)” Must Inspire the Indian Supreme Court

By guest contributors Anmol Jain and Prannv Dhawan. Jain is  a penultimate-year law student at National Law University, Jodhpur, India. He takes an active interest in the study of constitutional law and judicial approaches to human rights. Dhawan is a third-year law student at National Law School of India University, Bangalore, India. He is interested in policy and legal research in the domains of public law, human rights and climate justice. 

India’s constitutional democracy is backsliding. Speaking at a rally during the ‘National Register of Citizens (NRC) Seminar’ recently, the Home Minister advocated for the re-introduction of the much contentious Citizenship Amendment Bill, which unconstitutionally aims to provide easier citizenship requirements for non-Muslim refugees. Noted scholars have argued that previously, the National Register of Citizens exercised in Assam and now, the dilution of Article 370 of the Constitution that provides special status to the state of Jammu and Kashmir, are arguably unconstitutional attempts to further the political vendetta of the ruling party which has the capability to downgrade the credentials of Indian federal and democratic ideals. Amid global critique of the functioning of the executive branch in India, the latest coming from the Bar Council and Bar Human Rights Committee of England and Wales, United Nations and the United States Senate Committee on Foreign Relations, the attitude of the Supreme Court towards the Executive excesses has also come under the radar (see here, here, here and here). We attempt to analyse it hereunder by specifically focusing on the Jammu and Kashmir issue pertaining to dilution of Article 370.  

To briefly comment on this provision, Article 370 prescribed a special status to the state of Jammu and Kashmir by limiting direct application of the Indian Constitution to the State. Provisions of the Indian Constitution could be applied only through Presidential Orders issued upon the concurrence of the State Government. It further provided that the President may cease or modify the operation of Article 370 after taking recommendations from the Constituent Assembly of the State. On August 5, 2019 a Presidential Order was passed which inserted an additional clause in Article 367, a provision that guides the interpretation of the Constitution, to indirectly amend Article 370. It stated that the expression ‘Constituent Assembly of the State’ used in Article 370, must be read as ‘Legislative Assembly of the State’. Given the fact that the state was functioning under President’s rule through the Centre-appointed Governor at the relevant time, indicating the absence of a legislative body, it became a butterwalk for the Central Government then to modify Article 370 to such an extent that it virtually dilutes it. 

Many petitions have been filed in the Supreme Court challenging this dilution. This issue involves the determination of limits on the Executive functions in India, which is presently functioning in an ultra-strong manner with a combined strength of the whip. It involves the question of constitutional federalism and the survival of India’s democracy as envisaged by our founding fathers. Understandably, nothing could be more important in the existing backlog of the Supreme Court than securing the identity of our Constitution, which promises to India citizens and the state governments a Government limited by the Rule of Law and ideals of federalism, respectively. However, while hearing the matter on September 30th, the Supreme Court hearing was delayed, with representatives noting: ‘We do not have time to hear so many matters. We have a Constitution bench case (Ayodhya dispute) to hear.’ 

The issue of backlog in the Supreme Court of India isn’t new – it has been continuing for many years (for a more detailed discussion, see here). Given that the Court today is suffering from a high backlog of cases, an agenda of judicial reforms, as Justice Chandrachud recently articulated, must include the proposal to reduce the high number of appeals of civil or criminal suits and to streamline special leave jurisdiction. Another option for reducing the caseload burden could also be, as is continuously being emphasized by the Vice President, the establishment of multiple benches of the Supreme Court in different regions in India. However, despite the way in which this manifests, under no circumstances can the Supreme Court continue to be excused from efficaciously fulfilling its constitutional responsibility to hear all cases that come before it.

When the Kashmir petitions were placed before a Constitution bench on October 1, the Court again failed to adequately fulfil its role as the protector of liberty by further delaying the hearing. In addition to this, if the bizarre habeas corpus orders, as critically analyzed elsewhere, in September is anything to go by, the Supreme Court has uncritically accepted the Government’s disproportionate claims about national security that seem to have taken precedence over the ideals of civil liberties. The idea of a nation represented by a focus point – dilution of Article 370 to achieve greater unity, as claimed by the Central Government – has overpowered the individual dignity and identity of its constituents, which marks a move from a democratic government set-up towards right-wing populism. Such judicial evasion in the guise of national security in these crucial cases of rights abuses has been criticized by constitutional commentators by juxtaposing it with the United Kingdom Supreme Court’s swift adjudication in R (on the application of Miller) v. The Prime Minister [“Miller (2)”], a case involving breach of constitutional procedures and principles in the prorogation of the Parliament.

The Indian Supreme Court’s core constitutional role is to protect the fundamental rights of  citizens. The efficacious hearing and adjudication of the petitions against civil rights restrictions, house arrests, and communications blackouts as well as the constitutionality of the Parliament’s legislation are critical in the current times of constitutional backsliding. Rights’ adjudication ought to be placed on  a higher pedestal than smaller, less crucial issues such as a recent case the Court chose to hear: the determination of legal title in a religiously charged land dispute matter. This is especially relevant at a stage in the Indian constitutional process where safeguarding the rights to dignity and life has been understood to be at the pinnacle of public duties. As has been enunciated in multiple golden triangle cases, these rights are interpreted broadly and for the betterment of Indian citizens. Further, just recently, the Kerala High Court held that even the access to internet is a fundamental right to be protected. 

Although the Supreme Court’s wide jurisdiction and liberal interpretation of its powers creates significant  institutional constraints, this cannot be an alibi for not fulfilling the fundamental constitutional role of the court. If the Court is indeed the most powerful apex judicial body in the world, then it must tirelessly commit itself to secure the civil-political-socio-economic rights in a timely fashion. While the stellar institutional contributions of the Supreme Court to the cause of human rights and citizen’s entitlements cannot be denied, we contend that it is this very expansion of its constitutional role (perhaps self-assumed), that obligates the Court to seriously and appropriately adjudicate on constitutional challenges and petitions that seek its rescue to restore fundamental rights. It is important to acknowledge that delay in justice delivery is an absolute denial of those exact rights. The court’s present cavalier approach to collective punishment of millions of citizens without judicious and comprehensive ascertainment of existence of reasonable grounds based on the doctrine of proportionality is unfortunate and needs to be critiqued, rather than defended. Otherwise, it shall surely create an ironical situation where the ‘most powerful court’ is continuously failing to fulfil its constitutional duties, perhaps under executive influence. 

Earlier this year, the UK Supreme Court upheld the ideals of parliamentary deliberation and accountability of the executive to the Parliament by declaring Boris Johnson’s 5-week prorogation of parliament null. This is similar to the current Indian situation. It would not be wrong to argue that diluting Article 370 at a time when the State of Jammu and Kashmir is functioning under the President’s rule and substituting the views of the Governor with the views of the State Assembly is equally ‘unlawful and thus null and of no effect.’ Any further delay in action by the Supreme Court comes with a high possibility of material alteration in the functioning of Jammu and Kashmir under the amended scheme of the Constitution, the reversal of which, if the Court decides so, might bear heavy costs.  

Demonstration of the Court’s independent strength is not only lacking in the realm of highly staked political matters, but it also extends to judicial appointments as well, as witnessed in the recent controversies involving Justice Akil Kureshi and Justice Tahilramani. Commenting on the manner in which the Supreme Court has handled the petitions arising out of the recent controversy involving Article 370 of the Constitution, the state of Jammu and Kashmir and its special status, constitutional commentator Gautam Bhatia has argued that an emergency-era weak judiciary has reappeared, though in a different form this time, which has failed the fundamental principles of Indian constitutional democracy. 

In a recent judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court highlighted the virtues of judicial independence and held that it is a part of the basic structure of the Indian Constitution,  again highlighted at another time soon after. Concerns regarding isolating the judicial body from the other organs of the Government have been institutionally studied by the International Commission of Jurists and under multiple international documents. However, the Supreme Court of India seems to have taken a blind eye towards itself even while it advocates internationally for  recognized jurisprudence of courts elsewhere.  

In the times when the Executive’s imposition of an information blackout and civil rights restrictions in Kashmir have continued for over 60 days and  blatantly unconstitutional legislations like the Citizenship (Amendment) Bill are sought to be passed,  the judiciary must rise to the desired standards and stand as an independent protector of the Constitution. We believe that the wide jurisdiction and the high number of cases that the Court handles weakens it. It is not impossible to achieve more balance; it has been done in the past. Justice H.R. Khanna, for example, is a judge who stood undaunted and ruled against executive excesses to uphold constitutional promise in their cases. The time has come that the present Court proves it is indeed the Constitution’s sentinel on the qui vive.

Classrooms and Curricula: the Role of the Right to Education in the Prevention of Mass Atrocities

By: Nay Alhelou, RightsViews Co-editor

In her first talk in an academic setting in the USA while serving in her current capacity, the UN Special Rapporteur on the Right to Education, Dr. Kombou Boly Barry, highlighted how education could help prevent mass atrocities. On October 15, she addressed students, teachers, and fellows at Columbia University and discussed the report she presented three days later to the United Nations.

Dr. Boly Barry was appointed by the UN Human Rights Council in 2016 to examine the right to education as an independent expert. She is mandated to conduct country visits, respond to allegations of violations of the right to education and promoting dialogue with governments, civil society and other actors.

According to the Special Rapporteur, schools can either be the space where intolerance is harnessed or where tolerance is promoted. In favor of the former, she remarked: “In a world where everybody is afraid of everybody else… education should be used as a tool to help us push for the values of humanity.”

Cultural diversity and acceptance are some such human values that Dr. Boly Barry argues should be promoted in schools. She noted that, according to her research and field work,  in many colleges and schools around the world, teachers and students are being silenced and sent to prison – or even killed – for speaking up. Rather than being censored, Boly Barry believes that members of the education community should be given the chance to express themselves instead.

This is particularly relevant given that the role of education is a preventative one. The Special Rapporteur highlighted the need to help kids learn the core values of non-discrimination, equality and inclusivity before they become adults. When these values become part of children’s personalities, mass atrocities and gross human rights violations will occur less frequently. In addition, children should learn about genocides and mass atrocities that happened in the past, especially when these events have affected their cultures.

In response to a student who explained how Serbia continues to deny the existence of a mass atrocity in the country, Dr. Boly Barry said that “if you deny the history of a people, you are building the roots of war, violations and violence.”

Further, Dr. Boly Barry emphasized the role of open schools – schools where educational materials can be accessed by anyone – which allow parents to know what their children are learning in the classroom. She explained that if “students are blinded in their classrooms, they do not know what is happening in society.” Schools should follow curricula that not only promote the values of diversity and acceptance but that also bring theory and practice together, which also involves educating them on past histories of their nation and the world, as well as current events and debates.

In the discussion, it was also pointed out that schools established by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) already have a human rights curriculum. UNRWA students learn about human rights, healthy communication skills and peaceful conflict-resolution as well as tolerance. However, these students live in a reality that stands in contradiction to some of these ideals: for example, students in the West Bank and Gaza regularly face adversity and conflict and those living in refugee camps in Lebanon tend to suffer from dire socioeconomic conditions. Given these contradictions between an ideal world where human rights are fully enjoyed and a tough reality where some rights are abused, Dr. Boly Barry stressed that it is very important to contextualize what children are learning in school. Teachers can help their students make sense of what they are learning by using culturally-specific examples and discussing issues that affect their lives.

“If we forget the values of humanity in the process of education, we lose everything,” she said.

Dr. Boly Barry was a former Minister of Education in Burkina Faso and holds a PhD in Economic History. Her expertise in education, however, does not only stem from her professional and academic experiences but also from her personal experience as a woman coming from a nomadic background. Noting that only 2% of nomadic girls attend schools, the Special Rapporteur said that hers is an exceptional case but she hoped that through her mandate she can help people claim and enjoy their right to education.

As enshrined in Article 13 of the International Covenant on Economic, Social and Cultural Rights, the right to education not only contributes to the development of human personality, but it also enables people to effectively participate in society. As students and academics enjoying their right to education at a top university, we have a duty to critically engage in this learning environment and use our skills to make for better, culturally-richer and more tolerant societies.

This talk was co-sponsored by Columbia University’s Teachers College International and Comparative Education Program, the University’s Institute for the Study of Human Rights, Columbia Law School’s Human Rights Institute, and the Peace Education Network (PEN) of Teachers College.

Period: End of Sentence Critical Panel: The Inconvenient, Bloody Truth Behind the Oscar-Winning Documentary

By: Laura Charney, RightsViews staff writer

On September 26, the Menstruation and Gender Justice Working Group hosted a film screening and critical panel on the Oscar-winning documentary short Period: End of Sentence. Moderated by Inga Winkler, lecturer at the Institute for the Study of Human Rights at Columbia University and Director of the working group, the panel included Shobita Parthasarathy, Professor of Public Policy and Women’s Studies at the University of Michigan, Lauren Houghton, Assistant Professor of Epidemiology at the Mailman School of Public Health at Columbia University, and Emily Hoppes, a consultant at Huru International.

Period: End of Sentence follows a group of Indian women in the rural Hapur district, 60 kilometers outside of Delhi, as they transition from a life of shame surrounding their periods toward establishing a self-sufficient microeconomy based on menstrual pad manufacturing. During the process, the documentary claims that girls and boys are educated, stigmas are shattered, and a new gender-equitable horizon ascends.

Period: End of Sentence is narrated as a story of empowerment and resilience. Centered on the catchphrase, “a period should end a sentence, not a girl’s education,” the Pad Project – the NGO that funded the film – elaborates on its website: “When a girl gets her period in the United States, she may miss a class. When a girl gets her period in a developing country, she may never go to school again.” While this notion certainly cements grounds for outrage, its accuracy is ambiguous at best. 

Menstrual health programming is often obscured by shoddy statistics, lack of thorough quantitative data, and approaches to international development that favor implementing behavioral changes based on generalized survey data. While the panelists agreed that it was exciting to see a film all about periods gain critical acclaim, they critiqued Period: End of Sentence on the basis of its reliance on unreliable research, perpetuation of harmful stereotypes, and iteration of a savior complex rooted in technical fixes.  

“Menstrual health management practices have become commodified, scalable, and packageable. The Times of India reports that only 12% of women in India use sanitary pads, while the rest use ‘shocking’ materials like rags. Allegedly, 23% of girls drop out of school when they begin menstruating. These statistics are baseless – we know nothing about how these studies were conducted. Yet they have enormous social power,” Professor Parthasarathy pointed out.

These oft-cited statistics that suggest that girls in developing countries miss schools because of their periods have been widely debunked.  The field of international development is rife with “zombie statistics” – statistics, often informed by questionable research, that become ubiquitous.

Even credible quantitative data can compress complex political and economic conditions that produce gender-based inequalities.  Often, the impulse to respond to complicated societal imbalances is with market-based solutions. This is particularly manifest in the language of “empowerment,” which posits that women and girls in the global south can manifest their own destiny through offering them skills and labor. Popular solutions in development thinking, such as microfinance loans, locates the solution to impoverished conditions with the individual, rather than with the structural drivers of inequalities, such as national debt or offshoring cheap labor. As a result, the burden of development is often transferred away from the governments and corporations that produce poverty, toward women and girls who become disproportionately responsible for their communities’ livelihoods. 

“There are no quick fixes, but the documentary makes it seem that way. The machine provides the fix,” Dr. Winkler said. 

Prior to the filmmaker’s team arriving in Hapur, the subjects of the film were generally unfamiliar with single-use pads, and instead, used cloth. The project started when a group of girls from a private high school in North Hollywood learned about a new pad-making machine, raised money through a Kickstarter to buy one, and installed it in a rural village. “The film states that rural India has a menstrual problem, and we have a solution. Yet it does not prove that it is a sustainable solution,” Dr. Houghton noted.

“Indigenous knowledge systems are automatically seen as backwards in ‘developing contexts,’ but there is evidence that the pads are low quality, there are issues with disposal, and the machines break down frequently,” Dr. Parasarathy added.

Introducing western technologies and products as the “solution” reveal both the seductions and limitations of global development thinking. Emily Hoppes, who works for an organization that provides reusable menstrual products and comprehensive sexual and reproductive health education in Kenya, emphasized that products alone are not a sufficient solution to addressing stigma surrounding menstruation, and comprehensive sexuality education is necessary.

Indeed, the pad-making machine, for all its dexterous possibilities, can be understood as an outgrowth of what Dr. Parthasarathy calls “tech saviorism.” Tech saviorism “invites” the receiving subjects of an intervening technology to participate in economic development projects that are facilitated by others, and thus gives off the veneer of self-empowerment. According to this logic, before the introduction of these technologies, women were not already engaged in innovative practices. Instead, their previous practices are understood as embarrassing, dirty, and culturally oppressive. Yet in an era in which sustainable products loom large in menstrual product innovation, one would be remiss to dismiss the potential merits of reusable cloth.

Inga Winkler, Lauren Houghton, Emily Hoppes, and Shobita Parthasarathy (Left to right)

One scene in the film depicts several women saying that they could not pray in their temple while they were menstruating. Dr. Houghton, who has conducted extensive research in Bangladesh, the UK, and Mongolia on environmental risk factors on women’s health, noted that religion alone rarely dictates gender relations. For some women, observing menstrual practices can be seen as liberatory – a reprise from prayer or cooking for several days. 

The fault lines of the global north/south divide are manifest in the approach to menstrual health policies. “In the south, culture is often thought of as a barrier to menstrual health management,” Dr. Houghton said, “whereas in the north, the focus is on biochemical solutions, and culture is ignored. Yet turning the lens on ourselves, what does it say about our culture that we manage our periods with biochemical products?”

One panel attendee, Vanessa Siverls, a menstrual health consultant, pointed out that a major gap in the design of femtech and menstrual innovation is that it leaves behind menstruators who experience unique periods. Irregularities regarding menstruation are not merely a matter of the life course, but also depend on genetic makeups and socioeconomic contexts. Black women are more likely to experience uterine fibroids than women of other races, and more frequently report severe symptoms. Trans and nonbinary menstruators, too, are often left out of policy-based solutions and thus face unique challenges in managing periods in gender-segregated institutions like school bathrooms, shelters, or prisons.

There was one scene in particular that I felt spoke to the counterintuitive nature of the language of empowerment. The film takes us to the interior of a classroom, where we see adolescent girls and boys sitting patiently at their desks. The teacher asks one girl to stand and define “menstruation.” The girl reluctantly rises, hesitates and fumbles through a word or two, then is completely silent. She looks straight ahead, and you can feel her throat choking up with embarrassment as she eventually squeezes her eyes shut. As viewers, we’re called to look on with pity, to patronizingly empathize with the challenges of stigma and shame in a small, rural community; to want to help her empower herself.

I thought back to being a pre-teen girl growing up in Toronto, and how I would have felt if my teacher had asked me to stand in front of my whole grade and to explain what a period was. Because I was a bit of a loudmouth, I probably would have laughed and called on a friend to answer the question. Nonetheless, underneath my performative exterior, I would have been shaking, and mad at my teacher for putting me on the spot.

At the end of the documentary, Mr. Muruganantham, the inventor of the pad machine, says that “the strongest creature is not the lion, not the tiger, but the girl.” Orchestral instrumentation sweeps as the women, once vulnerable and timid, now laugh, hug, and discuss the power of feminism. A slow motion shot captures girls in a schoolyard doing long jump.  The spectacle of “girl power” is so overwhelming that I can’t help it when the hairs on the back of my neck slowly stand up: the product takes precedence over the process. In the end, don’t we all want a success story?