PIL as a Tool of Social Change

By Gopal Siwakoti 'Chintan'

Public interest litigation (PIL) is a complaint or competition that can be filed before a judicial body or an international mechanism. In recent years, PIL has become an effective tool for a social change in many countries where citizens and their groups challenge their governments, international financial institutions, and in some cases, transnational corporations (TNCs) for the enforcement of existing law and policy or their operational procedures, and ask for appropriate remedies. The courts are also empowered to make wider interpretation of the demands of a petitioner as long as they promote the larger interests and the rights of general public. It means, a petition filed for the protection of private property and interest does not fall within the scope of PIL.

PIL is a new phenomenon as a body of law and legal activism that provides alternative judicial remedies. Although, it has a long root in Western judicial system, it has been applied more progressively and significantly in South Asian countries than in other parts of the world.  India, Sri Lanka, and present-day Nepal are some of the countries with strong PIL movement in which local communities, NGOs, lawyers and activists bring series of petitions before domestic courts, and in some cases, file international complaints, asking for the compliance with their own stated policy, law and procedure, or demand for broader interpretation of certain legal and constitutional provisions in favor of larger public interest. Sometimes, PIL are also filed before the highest court demanding the repealing of a particular section of law, rule or regulation that may be found against the Constitution, thus, ultra virus.

In Nepal, PIL is new, although it is evolving rapidly as a tool for ensuring public rights and interests. One major achievement of the 1947 Constitution is the guarantee of the right to public interest litigation. According to article 88(1), "Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution". Similarly, article 88(2) provides that the Supreme Court has the jurisdiction to issue all necessary orders "for the enforcement of any other legal right for which no other remedy has been though provided or for which the remedy even though provided appears to be inadequate or ineffective, or the settlement of any constitutional or legal question involved in any dispute of public interest or concern". Another provision is article 16 that provides for "the right to demand and receive information on any matter of public importance."

Following these constitutionals, the citizens of Nepal have flooded the Supreme Court with PIL. Most of them are related to the right to information like the cases of Tanakpur Treaty and Arun III Hydroelectric Project. Other cases involve inconsistency of laws with the Constitution, including the violation of fundamental rights, Directive Principles and Policies of the State and other laws such as the Environment Protection Act. In some cases, the Court has delivered landmark judgements in favor of public interest, and in some, it is seen as being conservative, for example, the denial of PIL in the case of Mallik Commission report.

Nepali citizens can also bring their grievances before international scrutiny, particularly human rights violations. Some of the UN treaty-bodies (for example, New York-based Human Rights Committee) provide for direct complaint procedures against such violations. Likewise, labor rights issues can be brought before ILO Committee of Experts. The legal ground for such complaints is the ratification of two-dozen human rights treaties that provide for supremacy over domestic law under article 9 of the Nepal Treaty Act by Nepal. Victims of human rights violations can also submit information and petitions to UN High Commissioner for Human Rights, the Commission on Human Rights and its Sub-Commission in case of general human rights violations. Similarly, complaints relating to the rights to information; public participation; environmental protection measures; resettlement and rehabilitation; protection of ethnic and indigenous populations in the area; and, the guarantee of some direct development benefits to local beneficiaries can also be brought before their independent Inspection Panels. Arun III was the first-ever-filed claim against the World Bank (by INHURED International and Arun Sarokar Samuha with two local affectees) on the above grounds in 1994 that led to its cancellation in 1995. Similar cases can be brought against the ADB before its Inspection Function, for example, in the case of Kali Gandaki 'A' for its mismanagement and negligence in relation to human rights and environmental (non)compliance. These inspection functions cannot stop a project, but can monitor the bad implementation and ask for reforms.

This shows that Nepal is one of the pioneering countries in the world that has guaranteed the right of publics to sue their government anytime and almost in any case as long as it is related to public interest. We are at the top in South Asia in respect to constitutional provision relating to PIL. The Court has also played a significant role in institutionalizing the process of the rule of law, human rights and democracy through constitutional interpretation in PIL. It has also been proven to  be an effective tool to stop corrupt lending agencies and try to make bad projects more and more transparent. There are also venues for PIL under the Child Rights Act and the Environment Protection Act under which citizens can file cases before appropriate courts for the violations of the rights of children and the environment.

The importance of PIL in Nepal is highly appreciable. In fact, PIL has become a major instrument to bring government agencies under public pressure through judicial scrutiny for their wrongful acts.  They range from the dissolution of Parliament to various treaties conducted against Nepal's national interest. It can be argued that PIL is also becoming a last resort of peaceful means of resolving some serious legal and social problems before someone is forced to take arms. But, still, what is not happening in PIL despite all these achievements is that many of us have no idea about the rights and interests that can be protected through PIL. PIL is considered as a privilege of lawyers and intellectuals based in cities, but it is not true. Therefore, to promote PIL as an effective tool of social change, we need a strong PIL movement to make our democratic process and governance more accountable and transparent before it collapses suddenly. We also need to explore UN, ILO and multi-lateral development banks' mechanisms in the defense of human rights and public interest. The court, of course, will always have a big challenge to maintain its consistency in PIL decisions and play a dynamic and visionary role for social change by keeping itself free from any undue political influence, and financial and post-retirement creed.

(G.S. Chintan is an advocate and Executive Director at INHURED International)

Love, Sarubhakta and Jyanmaya

Sarubhakta begins his Khanda Kavya with this thought: 'What else remains if there is no heart full of love? Love is the only thing in the world that enriches man.' And it proceeds with Kanchi and Mane, the two main characters, falling in love with each other. They fall in love spontaneously, without sharing a single word, reflecting a view of love like that expressed by Kahlil Gibran in The Broken Wings: "Love is the offspring of spiritual affinity and unless that affinity is created in a moment it will not be created in years or even generations."

Jyanmaya tells a short lyrical story that is all about love, the pure and holy love of Mane and Kanchhi. In Pagal Basti, published eight years ago, Sarubhakta talked about immortal love. Now, in Janmaya, he again venerates "pure love".

Mane and Kanchhi fall in love, and affinity of love becomes stronger as days pass by. On the other hand, Kanchhi's father, a drunkard, tries to force Kanchhi to marry a bosom companion of a nearby village. Kanchhi flees away in defiance along with Mane to an unknown destination. The story ultimately ends tragically. It is just when life was going ahead towards its prime that tragedy suddenly strikes.

The poem has a lyrical intensity that provokes both feeling and thought. Its beauty and simplicity of expression give the reader intimate access to the sentiments present in the poem. This beauty and simplicity can well be discerned in the following excerpt:

Garibakai chhori hun ma dhana chahidaina

Dhani banna kasaisita maya laaidaina

Sukhadukha badichundi khana paaya   pugchha

Bachanale nabijhau dhukdhuki nai rukchha

Ekawarko juni ani ekaiwarko pyaar

Tyasbhanda bahirama hunna kunai saar

Despite this fine and affecting style, Jyanmaya's plot is, in the end, not only simple but also simplistic. The reader will find no profound substance here. The conflict created in the story is so feeble that the readers won't be convinced by the way it is used to give a turn to the story. There are only a few dialogues, and these are also weakly executed. Although the reader can feel the love between Mane and Kanchhi, the characters themselves are not brought to life.

This book is thus a partial answer to Sarubhakta's critics who accuse him of being abstract and complex in rendition. The simple language and style of this book show that he is capable of writing accessibly. But although this Khanda Kavya has a concrete "plot", and thus realist content of a kind, it lacks much substance and its realist elements are not ultimately woven together into a realistic tale.

After many fine and sensational short poems, dramas and novels, Sarubhakta has ventured into another genre, Khanda Kavya. In this major departure from his usual style, in my view he has succeeded once again. The main reason for this may be beauty, simplicity and sweetness of his language. Love may be the sole foundation of this Khanda Kavya, but some social issues and conflicts appear as pillars to prop up the story. Consider:

Yasto kura sunepachhi babule je bhanyo

Ropiara mutu bhitra kaando thulo banyo

'Dui sisi rausi le le chhori mero laija

Diya maile chhori meri jwaee  mero bhaija

Aankha chyati here hunchha chhori jun jasti

Aaganiko raap paari herda sun jasti

Arkako ta naso sadhai hunchha galapaaso

Chhori maile diya anta chha ki kasai chaso?'

Jyanmaya offers a chance for literary readers to take pleasure in poetic form and language. What "food for thought" the book provides is another question. For although it raises some social issues, Sarubhaka's Janmaya repeatedly stresses that love is not contented with anything but eternity and immortality. In this it seems to urge us to think not about the many proximate and decidedly mortal ways that love is twisted, abused and suppressed in the world, but rather to content ourselves with the idea that love itself is immortal. And here we may see the abstraction that was banished in style reasserting itself in content.

(B. Gautam a student  interested in Nepali literature)

Mountaineering and Sherpa Self-Fashionings

By Pratyoush Onta

Earlier this year, more than 20 expeditions tried to climb Mt. Everest. The Base Camp was so crowded with climbers and their support teams that in the words of one Nepali journalist, it looked like a bazaar. Even though Himalayan mountaineering is not a new sport, the number of people who want to climb the mighty peaks in our neighborhood seems to be in the increase. While Western climbers dominated the international news this past spring, Nepali climbers went on a record-setting rampage on Mt. Everest and not all of them were Sherpa men. The women's expedition that put the second Nepali woman on top of the world, the fastest climb ever, a successful climb by a Newar, and the tragic attempt to become the youngest to climb Mt Everest by a teenager (who almost made it but lost some of his extremities to frost bite) were only some of the highlights of the Spring 2000 climbing season. During the same season, several climbers also lost their lives in the Himalayas.

Why do these people - Westerners, Sherpas, and others - climb Mt. Everest and the other mountains given that Himalayan mountaineering is one of the deadliest sports on earth? What are the desires and compulsions of participating in this highly risky exercise? How have Sherpas earned a name for themselves for quality climbing and support activity on Mt. Everest and other Himalayan peaks? What has been the relationship between Western climbers and Sherpas over the 100-year history of Himalayan climbing? What have Sherpas achieved from their climbing successes? These are some of the most obvious questions that come to the mind of a non-climber like myself. In anthropologist Sherry B Ortner's new book Life and Death on Mt. Everest: Sherpas and Himalayan Mountaineering we can find some answers.

Himalayan mountaineering is about 100 years old. Most of the international climbers (sahibs) in the early days were white men who were mostly drawn from the relatively well educated upper-middle classes. This characterization of sahibs is still dominant even though there are quite a few women and representatives of other classes in expedition teams these days. Sahibs took up this sport, according to Ortner, as an exercise in the critique of modernity. The countermodern discourses around which the intentions and desires of sahibs were woven took many shapes: before the forties, it was romanticism ("desire to transcend the limits of the self" which took moral, mystical and ascetic forms), and glorification of nature. From the early days to about the 1970s, mountaineering was also tied with sahib understandings of masculinity, which included ideals of physical strength, bravery, authority, aggressiveness and "'paternalistic' responsibility for the socially subordinate."

These sahib discourses also influenced the nature of their discovery of the Sherpas who first excelled in high altitude porterage in expeditions organized from Darjeeling in the early decades of the 20th century. Sherpas were viewed as unmodern, natural, uncorrupt and like children, both childish and childlike (i.e., innocent). Likewise their reasons for climbing were said to be similar to those of the sahibs and were described in unmaterialistic terms. In the military model, these Sherpa characteristics were remolded as "undisciplined", needing a paternalistic firm hand. However, Ortner argues that Orientalist or sahib desires of other kinds did not entirely fashion the Sherpas (as has been argued by some). To write a Sherpa-centric history of Himalayan mountaineering she argues that we need to pay attention to Sherpas' own "serious games" - their material necessity and cultural scripts, their desires and intentions, and the modes of their social life that drove them to excel in this sport. While the agenda and political economy of international mountaineering set the frame and ideas of Himalayan climbing, Sherpas have used this activity to make gains for their group. They have not only asserted their agency in the form of demands for better pay and equipment (often through strikes and forms of 'everyday resistance') but also for respect from sahibs who in turn, have become more likely to hear these demands due to counter-dominant social movements including feminism in their own home turfs. As a consequence the role of the Sherpas in Himalayan mountaineering has changed a lot.

Similarly to understand the changes that have taken place in the role of climbing in Sherpas' own agendas, Ortner says we need to pay attention to the pressures of social and economic life that sent the needy ('small') Sherpas to Himalayan Mountaineering. We need to attend to the religious beliefs, gender assumptions, and social relations and inequalities that influenced Sherpa desires and intentions and the meanings of rewards from their climbing successes. The Sherpa notion of a zhindak (a patron who helps "a lesser person to succeed") is a useful corrective to a paternalistic view of sahib-Sherpa encounters. Ortner argues that the rise of the monastic movement (whose beginnings she described in High Religion: A Cultural and Political History of Sherpa Buddhism (1989)) in the early part of the 20th century provided yet other coordinates for the reconfiguration of a distinct Sherpa ethnonational identity and the emergence of the notion of compassion as a salient feature of popular Sherpa religion.

Ortner's chapters on death on the mountains and countercultural movements of the 1960s and the 1970s and their implications for the encounters between sahib men and women and Sherpas in the mountains make for an absorbing read. So does her chapter on more recent reconfigurations of Sherpa identity, although she does not tie her analysis with the dominant motifs of janajati and caste politics of post-1990 Nepal. She is at her best in telling the story of encounters in Himalayan mountaineering within a framework that should draw critical appreciation from not only anthropologists and historians, but also activists engaged in identity politics in Nepal.

(P. Onta is a historian)

Women Making News 

By Rama Parajuli

Women in Journalism: Making News is the story of Indian print journalism as experienced by women who have been in the profession at various times during the last 50 years. Though the history of newspaper in India is more than a century and half old, women entered mainstream journalism only after the country became independent in 1947. During the two decades of the 1960s and the 1970s, a second group of women entered the press in significant numbers. Many of them broke the remaining male bastions in Indian print journalism in the 1980s. And in the 1990s, large numbers of women entered the profession even as the Indian print media industry was going through major changes. 

This book by Ammu Joseph is based on interviews with about 200 journalist women and 35 responses she received from persons to whom she had sent questionnaires. The book has also benefited from Joseph's own experience as a journalist who entered the profession in the late 1970s and her previous research on the portrayal of women in Indian media. She co-authored that earlier research with Kalpana Sharma as Whose News? The Media and Women's Issues  (I had reviewed it in this page in March 1998).

In the immediate post-independence years, the going was tough for women in journalism. At first, they were denied entry into the profession because it was thought of as a job that only men could do. Once a few educated women passed the initial hurdle and joined the ranks of the journalists, they were denied opportunities to do important news. Also known as 'hard news' in the trade jargon, beats such as politics and foreign affairs were off-limits to these pioneers. They were also paid less than their male counterparts. This situation had not changed significantly even when the second generation of women joined the profession in the 1960s. However, these discriminatory practices could not stop the likes of Prabha Datt from joining The Hindustan Times in the mid-sixties and reporting from the battle-fronts of the 1965 India-Pakistan war. When her editor denied her permission to cover the war, she took leave and found her own way to the battle zone. Her initial dispatches were neglected but eventually HT printed her stories. Datt later became the chief reporter of HT.

Since the early 1980s, the situation for women journalists has changed at least in the major Indian cities. This is particularly true for those working in the English print media where women are performing as professionally as their male colleagues. Hard news, covering battlefronts, foreign affairs, photojournalism, sports, crime, soft news (or 'human interest stories'), business news, fashion and columns on various themes – women journalists in India have done it all. Some of them covered the Kargil war last year (Barkha Datt, daughter of Prabha Datt was one of them). Bylines of women reporters have become a routine feature in major newspapers.

However it would be premature to suggest that women have achieved full equality in Indian journalism. Many media women have said that gender discrimination still exists as a major problem in their profession. Even when women have worked hard and demonstrated their competence, they are still denied important assignments. Many are still being confined to "soft issues". This practice has delayed the promotion of several talented women journalists. According to Joseph, English language press seems to be more open to hiring women than other Indian languages press. The amount of discrimination they face also varies: women working in a Hindi newspaper, Nava Bharat Times, reported that they faced more discriminations than women journalists working for The Times of India, published by the same media house. 

However, some women believe that those who are professionally qualified face no discrimination. They think that irrespective of gender, anyone who is competent and works hard is sure to reach the top. Noted journalists like Tavleen Singh (now a columnist for India Today) and Anita Pratap (formerly CNN South Asia bureau chief and now a columnist for Outlook) subscribe to this view. They even don't want to use the term 'women journalist' for themselves. This attitude was shared by a large number of women who responded to a survey by the Women and Media Group, Mumbai in 1986. Singh and Pratap are not in favor of women's only press organizations.

Despite the progress noted, women comprise of only 12 percent of the work force in journalism (all forms) in India today (compared with 27 % in Malaysia, 43% in Europe and 35% in the US). This figure should be understood in the social context where gender discrimination is still pervasive. Journalism demands irregular working hours. Those doing breaking news need to work late into the night. These requirements are not acceptable to the families of many women. Societal expectations regarding motherhood and gender roles in general might also slow the carrier of women journalists. Hence it is no surprise that many famous women in the profession in India are either single or have faced  tremendous pressure in their conjugal life. There are a few lucky women who get support from their "progressive" husbands and families. This kind of gendered view of a profession that describes itself as the watchdog of society provides deep insights into India's present. Joseph's book should be a required reading for anyone thinking about or practicing media in our part of the world. It should also be read by "gender" experts.

 (R. Parajuli is a senior reporter of Kantipur)